NO. COA02-892
Appeal by defendant from judgment dated 20 March 2002 by Judge
Ernest B. Fullwood in Sampson County Superior Court. Heard in the
Court of Appeals 4 March 2003.
Attorney General Roy Cooper, by Assistant Attorney General Jay
L. Osborne, for the State.
Leslie G. Fritscher for defendant appellant.
BRYANT, Judge.
McClinton Thomas Matthews (defendant) appeals a judgment upon
revocation of probation dated 20 March 2002.
On 13 November 2001, defendant was convicted on charges of
selling heroin, selling cocaine, and possessing stolen goods.
Defendant received a suspended sentence of twelve to fifteen months
imprisonment and was placed on supervised probation for thirty-six
months. As a special condition of his probation, defendant was
ordered to participate in the TROSA program (“Triangle Residential
Options for Substance Abusers”). Defendant was tentatively
accepted into the program pending a medical examination.
On 25 January 2002, a probation violation report was filedalleging defendant had violated his probation by twice failing to
report for the medical examination required for admission into the
TROSA program. A probation violation hearing was held in Sampson
County Superior Court on 18 March 2002. Defendant admitted
violating his probation but argued he did not do so willfully. The
trial court found defendant had willfully violated the terms of his
probation as alleged in the report. The trial court then revoked
defendant's probation and activated the suspended sentence. The
evidence introduced at the hearing that is pertinent to this appeal
is discussed below.
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The issues are whether: (I) there was insufficient evidence
defendant had violated the terms of his probation and (II) the
trial court abused its discretion by failing to consider whether
defendant's probation should be continued or modified.
I
Defendant contends he was incarcerated at the time both
medical exams were scheduled and thus under the “complete control
and custody” of the Department of Correction. Defendant further
argues he was not aware of the scheduled examinations. In
addition, defendant claims he requested a medical evaluation while
imprisoned, but his efforts were to no avail. Thus, defendant
argues he was unable to comply with the terms of his probation.
Defendant also notes that the trial court failed to make any
findings of fact on the judgment and commitment form.
After careful review of the record, briefs, and contentions ofthe parties, we find no error. This Court has stated:
Any violation of a valid condition of
probation is sufficient to revoke [the]
defendant's probation. All that is required
to revoke probation is evidence satisfying the
trial court in its discretion that the
defendant violated a valid condition of
probation without lawful excuse. The burden
is on [the] defendant to present competent
evidence of his inability to comply with the
conditions of probation; and that otherwise,
evidence of [the] defendant's failure to
comply may justify a finding that [the]
defendant's failure to comply was wil[l]ful or
without lawful excuse.
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987)
(citations omitted).
In this case, it was alleged defendant had violated his
probation by failing to report for scheduled medical examinations.
The examination was required before he could be accepted into the
TROSA program, a condition of his probation. Lee Coble (Coble),
defendant's probation officer, testified at the probation
revocation hearing that he had twice arranged for defendant to be
examined, once while defendant was incarcerated at Robeson County
Correctional Center and again when defendant was at Durham
Correctional Center. Coble further testified defendant was
informed of the examination, that completion of the examination was
mandatory before he could enter the TROSA program, and that he
would go to jail if he did not comply with this requirement.
According to Coble, defendant refused to have the examination.
Based on this evidence, the trial court found defendant had
violated a condition of his probation as set forth in the violationreport. We conclude there was sufficient evidence to support the
trial court's finding. As such, it was within the trial court's
discretion to revoke defendant's probation. We also note that the
absence of findings on the judgment and commitment form appears to
be a clerical error. Based on the transcript, it is apparent the
trial court made findings of fact and concluded defendant was in
willful violation of his probation. To correct this clerical
error, we remand this matter to the trial court for correction.
II
Defendant next argues the trial court abused its discretion by
failing to consider whether his probation should be continued or
modified. Defendant contends the trial court should have
considered alternatives to activating his suspended sentence. We
disagree. As noted above, the trial court found defendant had
willfully violated the terms of his probation. “[T]he trial court
was [therefore] not required to consider alternate means of
punishment other than incarceration.”
State v. Jones, 78 N.C. App.
507, 510, 337 S.E.2d 195, 198 (1985)
. Accordingly, this assignment
of error is overruled.
No error; remanded for correction of clerical error in the
judgment.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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