State v Sutherland, (03-21) 08/19/2003

Appeal by defendant from judgments entered 20 August 2002 by Judge Timothy L. Patti in Superior Court, Gaston County. Heard in the Court of Appeals 4 August 2003.

Attorney General Roy Cooper, by Assistant Attorney General Floyd M. Lewis, for the State.

Kay S. Murray for defendant-appellant.

McGEE, Judge.

    Karen Joyce Sutherland (defendant) pled guilty to four counts of embezzlement on 9 May 1996. The trial court sentenced defendant to five to six months' imprisonment, suspended the sentence and placed defendant on sixty months' supervised probation. As a condition of her probation, defendant was ordered to pay monies totaling $13,648.08 at a rate of $240 per month starting in June of 1996. In April of 2001, the trial court modified defendant's probation "for good cause without charge of violation" by reducing the monthly rate for her monetary condition to $150 per month and by extending defendant's probation for a period of three years to provide additional time for defendant to pay restitution.     Defendant's probation officer subsequently filed a probation violation report with the trial court alleging defendant violated her probation by failing to make required monetary payments. The violation report specifically stated that defendant was in arrears by $10,153.08 and that she made her last payment on 9 July 1999.
    At defendant's probation violation hearing, defendant's probation officer informed the court that defendant had a balance due of $10,152.08 on her monetary condition and that defendant's last payment was made on 16 July 1999. Defendant, through her counsel, admitted to the violation alleged in the probation violation report. Defendant's counsel stated that defendant and defendant's husband had health problems; that defendant's husband had to retire due to his illness; and that defendant could only work part-time in order to take care of her husband. When the trial court asked defendant if she wanted to add anything to her counsel's statement, defendant responded, "No, sir." After hearing all the evidence and arguments from counsel, the trial court found "defendant had the ability to comply" and that "her failure to comply was willful and without lawful excuse." In its judgment and commitment upon revocation of probation entered 20 August 2002, the trial court found defendant violated the terms and conditions of her probation, revoked defendant's probation and activated her original sentence. Defendant appeals.
    Defendant argues the trial court erred in revoking her probation because there was insufficient evidence to support the trial court's finding that she had the ability to comply with theterms of probation and that her failure to comply was willful.
    The State is required to present sufficient evidence in a probation revocation hearing to "'reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended.'" State v. Lucas, 58 N.C. App. 141, 145, 292 S.E.2d 747, 750 (quoting State v. Hewitt 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967), disc. review denied, 306 N.C. 390, 293 S.E.2d 593 (1982). "In a probation revocation proceeding based upon [a] defendant's failure to pay a fine or restitution which was a condition of [the defendant's] probation the burden is upon the defendant to 'offer evidence of his inability to pay money according to the terms of the [probationary] judgment.'" State v. Jones, 78 N.C. App. 507, 509, 337 S.E.2d 195, 197 (1985) (citation omitted).
    If defendant presents evidence of her inability to pay, she is entitled to have her evidence considered and evaluated by the trial court, State v. Smith, 43 N.C. App. 727, 732, 259 S.E.2d 805, 808 (1979), and the "trial court is required to make findings of fact which clearly show that it considered and evaluated such evidence." State v. Hill, 132 N.C. App. 209, 213, 510 S.E.2d 413, 415 (1999). "The findings of the judge, if supported by competent evidence, and his judgment based thereon are not reviewable on appeal, unless there is a manifest abuse of discretion." State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).    In the case before us, defendant admitted the allegation in the probation violation report. The evidence also shows that: defendant was required to pay a total of $150 per month to satisfy the modified monetary condition of probation; defendant was in arrears at the time of the violation report; defendant made a payment in July of 1999 but made no other payments between that time and the date of the hearing; and that defendant had a part- time job. Furthermore, defendant did not present any evidence of a lawful excuse for failing to meet her monetary obligations. Although defendant's position with respect to her inability to comply was related through the statements of her counsel, this Court has held that counsel's statements are not competent evidence and that the burden is on defendant to present competent evidence of her inability to comply. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 834-35 (1985). Defendant declined to speak on her own behalf. With defendant not having presented competent evidence, "the trial court was not, therefore, under a duty to make specific findings with respect to defendant's alleged inability to comply." Id. at 567, 328 S.E.2d at 835. We conclude that there is evidence in the record to support the trial court's findings that from evidence presented defendant "willful[ly] and without lawful excuse" violated the conditions of her probation by failing to meet her monetary obligations. The trial court did not abuse its discretion and defendant's assignment of error is without merit.
    Affirmed.
    Judges HUDSON and GEER concur.    Report per Rule 30(e).

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