State v Ford, (03-56) 08/05/2003

Appeal by defendant from judgments entered 23 September 2002 by Judge Zoro J. Guice, Jr. in Superior Court, Henderson County. Heard in the Court of Appeals 21 July 2003.

Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State.

Allen W. Boyer, for defendant-appellant.

McGEE, Judge.

    Defendant appeals from judgments revoking his probation and activating sentences of ten to twelve months for convictions of felonious breaking or entering and felonious larceny.
    Defendant's probation officer issued violation reports in each case on 6 September 2002. Both reports alleged that defendant: tested positive for cocaine and marijuana on 22 August 2002; failed to report for scheduled office appointments on five dates during June through August 2002; refused to submit to a drug test on 20 August and 21 August 2002; and moved out of his residence without permission from, or notice to, his probation officer. One violation report additionally alleged that defendant had not paid any restitution, costs or fees and that defendant had not performedany community service.
    Defendant admitted at the probation violation hearing that he committed the probation violations charged. Defendant's probation officer testified regarding the charged violations. Defendant did not present any evidence.
    After hearing arguments of counsel and from defendant, the trial court found and concluded that defendant willfully and without lawful excuse committed all of the violations. The trial court activated defendant's sentences and ordered they run consecutively.
    Defendant argues that
        [t]he process by which the trial judge arrived at the sentence . . . is clearly flawed to the prejudice of the defendant when he sentenced the defendant to two consecutive active terms of 10 months minimum, 12 month[s] maximum under the mistaken impression that the defendant may be eligible for parole on these October 2, 2000, offenses.

Defendant's argument relies upon State v. Snowden, 26 N.C. App. 45, 215 S.E.2d 157 (1975), in which our Court vacated a defendant's sentences because the record affirmatively showed the sentences were imposed based upon improper reasons, being general dissatisfaction with the amount of time offenders actually remained in prison and a mistaken assumption that the offenders would be released after service of only one-fourth of their sentences.
    However, the record in defendant's case does not show the trial court based its sentences upon any improper beliefs. The record in this case merely shows that while pronouncing sentence for the record, the trial court made statements that as "acondition of any work release or parole," defendant be ordered to make restitution to the victim and to the State of North Carolina for court-appointed counsel. In making these statements, the trial court was simply complying with the requirements of N.C. Gen. Stat. § 15A-1340.36(c) (2001), which requires a court, when imposing an active sentence, to recommend whether restitution shall be made from work release earnings or whether restitution shall be made a condition of "any parole or post-release supervision granted the defendant, as provided in G.S. 148-57.1."
    We affirm defendant's probation violation judgments.
    Affirmed.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***