STATE OF NORTH CAROLINA
v. Union County
No. 01 CRS 14073
WAYNE THURMOND STRICKLAND
Roy Cooper, Attorney General, by Margaret A. Force, Assistant
Attorney General, for the State.
Isabel Scott Day, Public Defender, Dean Paul Loven, by
Assistant Public Defender, for defendant-appellant.
STEELMAN, Judge.
Defendant, Wayne Thurmond Strickland, appeals a judgment
revoking his probation and activating a ten-year sentence. For the
reasons discussed herein, we affirm the trial court's
determination.
On 31 October 1991, defendant pled guilty to a charge of
indecent liberties (Yadkin County file number 91 CRS 810). The
trial court sentenced him to a term of ten years' imprisonment,
then suspended the sentence and placed him on five years' probation
to begin at the expiration of an active sentence imposed in Yadkin
County file number 91 CRS 809. After his release in April of 1999,
defendant was placed on probation in Yadkin County. He was nexttransferred to Wilkes County, then to Anson County, and finally to
Union County for supervision. Following charges of probation
violation, Judge Michael E. Helms, on 7 June 2000, modified the
conditions of probation and placed defendant on intensive probation
for six months.
Upon a motion to modify the conditions of probation, Judge
William H. Helms modified the conditions of probation on 26 October
2000. A violation report was subsequently filed on 31 October
2001, and Judge Christopher M. Collier transferred defendant to
intensive probation on 4 February 2002. Judge Collier directed
that defendant was “to continue with sex offender treatment at Blue
Ridge treatment center and before he can be transferred to regular
probation, Defendant must be in compliance and monies for sessions
paid in full.”
On 20 February 2002, another violation report was filed. It
alleged that defendant had violated three conditions of probation:
(1) defendant failed to report to his intensive probation officer
on 11 February 2002 as instructed; (2) defendant was terminated
from his sex offender treatment for noncompliance; and (3)
defendant left his residence and failed to make his whereabouts
known to his probation officer. Defendant admitted to being in
violation, but denied the willfulness.
Frank Bivens, an intensive probation/parole officer, testified
at the probation hearing that defendant was transferred to him on
7 February 2002. He saw defendant that evening at the homeless
shelter. Mr. Bivens told defendant that he wanted to see him thenext morning in his office, which was two blocks away from the
homeless shelter. He did not hear from defendant again until after
defendant was arrested in April 2002 for probation violations.
When Mr. Bivens asked why defendant had failed to report, defendant
said “he didn't know, no excuse.” Defendant admitted in open court
that he knew Mr. Bivens's telephone number but failed to call him.
Mr. Bivens received a letter in April 2002 from defendant's
primary therapist in the Sex Offender Recovery Program which stated
that defendant had been terminated from the program. Although
defendant had previously been terminated by the program in January
2002, he had been permitted to return pending the outcome of his
revocation hearing. Despite being ordered to return to treatment
on 4 February 2002, defendant had not returned as of his subsequent
termination in April 2002. The therapist stated in her letter that
defendant had missed twelve out of fifty scheduled sessions, and
she indicated that “[w]hen present his participation was less than
minimal.” Defendant “refused to participate except when required
to participate in rounds.” He also owed a balance of $885.00 to
the program.
Mr. Bivens spoke with defendant on his last evening at the
homeless shelter after he had been asked to leave for unacceptable
behavior. Defendant admitted that he never called Mr. Bivens
because defendant “didn't know where [he] was going to be” or where
he was going to be staying. Defendant had no contact with Mr.
Bivens from 7 February 2002 until his arrest in April 2002.
At the conclusion of the hearing, Judge Susan C. Taylor foundthat defendant had violated each of the conditions willfully and
without valid excuse. The trial court further found that each
violation, in and of itself, was a sufficient basis for the
revocation of defendant's probation. Judge Taylor revoked
defendant's probation and activated his suspended sentence of ten
years. From this judgment, defendant appeals.
In his sole assignment of error, defendant argues that the
trial court erred by activating his sentence upon finding that he
willfully and without lawful excuse violated the terms of his
probation. We disagree.
“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.”
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).
The breach of any one condition is sufficient grounds to revoke
probation. State v. Seay, 59 N.C. App. 667, 298 S.E.2d 53 (1982),
appeal dismissed and disc. rev. denied, 307 N.C. 701, 301 S.E.2d
394 (1983). “[T]he burden is on the defendant to present competent
evidence of his inability to comply; and that otherwise, evidence
of defendant's failure to comply may justify a finding that
defendant's failure to comply was willful or without lawful
excuse.” State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833,
835 (1985). “In determining whether the evidence warrants the
revocation of probation or a suspended sentence, the credibility of
the witnesses and the evaluation and weight of their testimony are
for the judge.” State v. Green, 29 N.C. App. 574, 579, 225 S.E.2d170, 174, cert. denied, 290 N.C. 665, 228 S.E.2d 455 (1976).
In the instant case, defendant admitted violating the
conditions of probation. Competent evidence in the form of the
testimony of Mr. Bivens and defendant, along with the therapist's
letter, clearly supports the trial court's findings that
defendant's admitted violations were willful. Defendant failed to
walk two blocks from the homeless shelter to report to Mr. Bivens
as instructed. Although he had Mr. Bivens's telephone number, he
failed to make his whereabouts known by contacting Mr. Bivens at
any point in time after leaving the homeless shelter. Defendant
missed approximately one-fourth of his scheduled sessions of sex
offender treatment and failed to return for treatment after being
ordered to return on 4 February 2002. The trial court did not err
by finding that defendant had willfully violated three valid
conditions of probation upon which his sentence was suspended. We
find no abuse of discretion by the trial court in revoking
defendant's probation and activating his suspended sentence. This
assignment of error is without merit.
AFFIRMED.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***