STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 00CRS37488, 141811-13
CHRISTOPHER LYNN PORTER
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.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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