An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-950


Filed: 1 April 2003


         v.                    Mecklenburg County
                            Nos. 00CRS37488, 141811-13

    Appeal by defendant from judgment entered 6 May 2002 by Judge Beverly T. Beal in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Elizabeth L. Oxley, for the State.

    James M. Bell for defendant-appellant.

    HUNTER, Judge.

    Christopher Lynn Porter (“defendant”) appeals from a judgment of the Mecklenburg County Superior Court revoking his probation. We affirm.
    Defendant had pled guilty to multiple counts of felony breaking and entering and larceny of a motor vehicle on 21 February 2001. The trial court entered a judgment imposing intermediate punishment, which included six months of intensive probation. The Intensive Supervision Program required inter alia that defendant “[n]ot use, possess or control any illegal drug or controlled substance unless it has been prescribed for [him] by a licensed physician and is in the original container with the prescriptionnumber affixed on it”; “[p]articipate in any evaluation, counseling, treatment or education program as directed by [his] probation officer, faithfully keep all scheduled appointments, and abide by all rules, regulations and directions of each program[]”; complete fifty hours of community service; and “[a]bide by curfew established by Intensive [Probation] Team.” On or about 26 March 2002, defendant's probation officer, Darius Deese (“Deese”), filed a violation report alleging that defendant had violated certain terms and conditions of his probation by (1) being away from his residence without permission on 22-25 March 2002; (2) being addicted to crack cocaine; (3) missing an appointment with a drug treatment program on 22 March 2002; and (4) leaving his residence on two occasions without permission.
    A hearing was held on the violation report at the 5 May 2002 session of Mecklenburg County Superior Court. Defendant admitted to all of the violations, with the exception of being addicted to crack cocaine. The State proceeded on those admitted violations, thereby abandoning the violation based upon defendant's crack addiction. The State presented the testimony of defendant's probation officer. Deese testified that on or about 20 March 2002, he met with defendant, who was accompanied by his mother, whereupon defendant admitted that he was addicted to crack. In response, Deese made an appointment for him to be assessed at TASC the following morning at 8:00 a.m., so that it could be determined if defendant needed inpatient treatment for his drug problem. Defendant failed to keep that appointment. Instead, he took someof his parents' property and left their residence for several days. During that time, defendant was twice charged with breaking and entering. Deese testified that he then arrested defendant for violation of his probation. While in jail, defendant was ordered to participate in the 28-day in-patient treatment program and to receive mental health counseling. Deese noted, however, that defendant was not eligible for any of the county jail's programs since he was classified as a high risk inmate based upon a previous escape while on work release. The probation officer explained that despite numerous efforts to give defendant a chance to successfully complete his probationary sentence, he had been unable to find any program willing to enroll defendant due to his mental health problems. Further, since defendant's parents were no longer willing to let him live with them, and he essentially had no place to live, Deese opined that probation was not an option. Deese, therefore, testified that his only option was to recommend revocation of defendant's probation and his participation in the Drug and Alcohol Recovery Treatment (“DART”) program while incarcerated.
    The court then addressed counsel for defendant, inquiring as to the nature of defendant's mental health problems. Counsel stated that based upon defendant's medication, the best he could tell was that defendant suffered from chronic depression. Like defendant's probation officer, counsel stated that his efforts to find defendant an appropriate drug treatment program had been unsuccessful due to defendant's mental health problems. Counsel,however, asked the court to give defendant one last chance at probation -- to give defendant an option for probation that would address all of his issues. Counsel noted that defendant's parents were present at the hearing and were willing to support him through the probationary process, so long as he obtained some drug and mental health treatment. Counsel requested that the court order defendant to attend Treatment Alternatives to Street Crimes (“TASC”), or alternatively, that defendant be kept in custody and disposition continued in this matter while options for probation were further considered by sentencing services. The court questioned defendant's father and defendant himself, and they both spoke of defendant's prior unsuccessful participation in DART.
    Taking the evidence and arguments of counsel into consideration, the trial court found defendant in willful violation of those terms and conditions of probation earlier admitted. The court then activated defendant's suspended sentences, recommended assessment and treatment by the DART program, and assessment for any mental health problems.
    On appeal, defendant argues that the court erred in revoking his probation based upon his admitted violation of certain terms and conditions of his probation since the record is devoid of any evidence as to the willfulness of those violations. We disagree.
    It is well settled that “'[p]robation is an act of grace by the State to one convicted of a crime.'” State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999) (quoting State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725 (1980)). Accordingly, “a proceeding to revoke probation is not bound by strict rules of evidence and an alleged violation of a probationary condition need not be proven beyond a reasonable doubt.” Id. Rather, “[a]ll that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation.” State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998).
        [O]nce the State has presented competent evidence establishing a defendant's failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms. If the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation.

State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002) (citations omitted).
    In the instant case, defendant admitted to having violated the terms and conditions of his probation as alleged in the probation violation report. The State then elected to proceed only as to those admitted probation violations. The State presented extensive testimony by defendant's probation officer as to defendant's probation violations and all of the probation officer's efforts to find workable options to continue defendant on probation. However, various factors, including his mental health problems, prevented defendant from being eligible for any of the programs currently offered. The probation officer felt that defendant's circumstances were such that revocation of his probation and participation in theDART program was the only viable option. In response to inquiry of the court, defendant, his father, and his attorney spoke candidly about defendant's drug addiction and defendant's past failures at obtaining effective treatment through the court-sanctioned DART program. The trial court, while noting defendant's prior unsuccessful participation in the DART program, expressed hope that the program would be helpful in the future. The court then revoked defendant's probation and ordered that he once again be assessed for participation in the program.
    The record shows that the court did indeed consider defendant's drug addiction and mental health problems in determining that defendant's admitted violations were willful. The record is rife with evidence of the court's receipt and inquiry into the facts and circumstances of defendant's drug addiction and mental health problems and how they factored into his probation violations. While the court could have been more explicit in its findings during the rendering of judgment in open court -- stating specifically that the court had considered and evaluated defendant's evidence of his drug addiction and mental health problems, but found that evidence to be insufficient to justify violation of the terms and conditions of his probation -- the court's failure to be more explicit does not constitute an abuse of discretion. See State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983) (holding that the court's failure to make specific findings that the court had considered and evaluated defendant's evidence that his medical and mental health problemsprevented him from fulfilling the monetary conditions of his probation was not an abuse of discretion). As explained by the Court in Williamson, we conclude that requiring the court to make such specific findings on each of defendant's allegations in justification of his breach of probation terms and conditions would not be reasonable. See id.
    As the evidence tends to show that defendant willfully violated those terms and conditions of probation admitted in open court, we hold that the trial court did not err in revoking his probation and activating his suspended sentence. The judgment of the trial court is, therefore, affirmed.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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