State v Barton, (02-1675) 08/05/2003

Appeal by defendant from judgments entered 28 August 2002 by Judge James M. Webb in Superior Court, Moore County. Heard in the Court of Appeals 21 July 2003.

Attorney General Roy Cooper, by Assistant Attorney General Nancy E. Scott, for the State.

Bruce T. Cunningham, Jr. for defendant-appellant.

McGEE, Judge.

    Defendant appeals from judgments revoking his probation and activating sentences for trafficking in cocaine by possession and transportation and for felonious breaking or entering and larceny.
    Defendant's probation officer filed two probation violation reports on 14 May 2002. One violation report charged that defendant failed to report as directed to the probation officer, failed to stay current on the monetary conditions of probation, and failed to maintain employment. The second report charged that defendant violated probation by failing to report for an appointment with his probation officer and by failing to maintain employment. Two additional probation violation reports were filed dated 21 June 2002. Both of these reports charged that defendanttested positive for marijuana and cocaine on 21 May 2002 and that defendant failed to contact his probation officer.
    Defendant admitted at the probation hearing that he committed the charged violations. The probation officer testified that a drug test specimen provided by defendant tested positive for cocaine and marijuana on 21 May 2002 and that defendant failed to contact her despite leaving messages at his residence and with his mother to make such contact. Defendant also failed to keep an appointment for a drug test. He called and left a message that he could not keep the appointment because he did not have transportation. She called the number defendant provided and the person answering the telephone stated that defendant was not there. Defendant did not present any evidence.
    Defendant first argues the court erred by finding he committed the violations alleged in the 14 May 2002 violation reports because the court did not receive any testimony from the probation officer about these violations. The court, however, had the sworn violation reports before it. Sworn or verified violation reports constitute competent evidence to support findings of violations. State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 58 (1967). This argument is overruled.
    Defendant next argues the trial court committed plain error by mistakenly stating that the court had the discretion to allow defendant credit for time spent in the Impact program. Regardless of whether the trial court believed the giving of credit was discretionary or mandatory, defendant received credit for every dayhe stated he spent in the Impact program. "A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct." N.C. Gen. Stat. § 15A- 1443(c) (2001). We do not find any prejudice to defendant.
    Defendant next argues the trial court erred by inquiring how defendant received a suspended sentence for trafficking when the statute under which defendant was sentenced mandated imposition of an active sentence. Even assuming, arguendo, the trial court's inquiries were improper, we find no prejudice. As the trial court's inquiries denoted, defendant was fortunate to receive a suspended sentence because N.C. Gen. Stat. § 90-95(h)(5) (2001) mandates imposition of an active sentence for a trafficking offense unless the defendant provided substantial assistance in the identification, arrest, or convictions of any accomplices, accessories or co-conspirators. "Probation is an act of grace by the State to one convicted of a crime." State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (1980). A person on probation "carries the keys to his freedom in his willingness to comply with the court's sentence." State v. Robinson, 248 N.C. 282, 285, 103 S.E.2d 376, 379 (1958). A defendant has the burden of showing excuse or lack of willfulness in the violation of a condition of probation; otherwise, evidence of failure to comply with the conditions of probation is sufficient to support a finding that the violation was willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). In this case, defendantadmitted that he committed the violations and he offered no defense to those violations. This argument is overruled.
    We affirm defendant's probation violation judgments.
    Affirmed.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***