An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-251


Filed: 18 November 2003


    v.                            Cabarrus County
                                No. 01 CRS 018172

    Appeal by defendant from judgment dated 6 May 2002 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 29 October 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Sylvia Thibaut, for the State.

    David Childers for defendant-appellant.

    BRYANT, Judge.

    Willard James Holbrooks, Sr. (defendant) appeals a judgment and commitment upon revocation of probation dated 6 May 2002 activating his suspended sentence for habitual misdemeanor assault.
    Defendant had been placed on probation after being convicted of habitual misdemeanor assault. On 25 February 2002, defendant's probation officer, Douglas Graham, filed a violation report alleging defendant had violated several conditions of his probation. At the revocation hearing on 6 May 2002, Graham testified defendant had violated both monetary and regular conditions of his probation. In support of the violation report, Graham stated defendant had (1) failed to make any payments on the$1,040.00 monetary obligation ordered by the trial court and was in arrears by $450.00, (2) not paid his monthly probation supervision fee and was in arrears by $120.00, (3) moved from his residence of record without disclosing his whereabouts, (4) failed to obtain employment or pursue an education to equip himself to obtain employment, (5) been convicted of several criminal offenses while on probation, (6) failed to write a letter of apology as instructed by the trial court, and (7) failed to receive any mental health treatment for alcohol abuse as ordered by the trial court.
    Defendant testified in his defense that he was currently in jail and had been in jail since 3 February 2002. Defendant also explained that he had been on disability for about six years and could not “do a lot.” When questioned by the trial court, defendant admitted to having been convicted of being intoxicated and disruptive on 10 January 2002 and of second-degree trespass on 18 February 2002. Defendant denied having been convicted of resisting a public officer on 10 January 2002.
    After hearing the evidence and arguments of counsel, the trial court found that defendant willfully and without lawful excuse violated the terms and conditions of his probation and activated the suspended sentence.


    The issues are whether: (I) the trial court abused its discretion in revoking defendant's probation and (II) the trial court's “prejudicial attitude” effectively deprived defendant of his right to a fair and impartial tribunal.

    N.C. Gen. Stat. § 15A-1345 guarantees full due process before there can be a revocation of probation. See N.C.G.S. § 15A-1345 (2001); State v. Hunter, 315 N.C. 371, 377, 338 S.E.2d 99, 104 (1986). It is, however, well settled that since “[p]robation 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 (1980), “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,” State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999). “All 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.” State v. Terry, 149 N.C. App. 434, 437, 562 S.E.2d 537, 540 (2002). “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.” Id. at 438, 562 S.E.2d at 540. This Court has long held that “[a]ny violation of a valid condition of probation is sufficient to revoke [a] defendant's probation.” State v. Tozzi, 84 N.C. App. 517, 521, 353S.E.2d 250, 253 (1987).
    In the instant case, the evidence of record tends to show that defendant's probation officer filed a verified violation report on 25 February 2002, alleging that defendant violated several terms and conditions of his probation. The probation officer testified in conformity with his violation report at the 6 May 2002 revocation hearing. More importantly, defendant testified at the hearing and admitted to being convicted of various criminal offenses during his probationary period -- in clear violation of the condition of his probation that he “commit no criminal offense in any jurisdiction.” Defendant offered no excuses for these convictions. Now, however, defendant attempts to use his incarceration during probation as an excuse for his failure to fulfill the conditions of his probation. We reject this attempt and note that defendant's admitted conviction was in and of itself sufficient to support the trial court's revocation of defendant's probation. Id.

    We similarly reject defendant's contention that the trial court's “negative and improper remarks” deprived him of a fair and impartial hearing guaranteed “as part of due process.” After a thorough review of the record, we hold that even if the trial court's comments and attempts to clarify defendant's testimony could be construed as “negative” or “improper,” they in no way deprived defendant of due process so as to entitle him to any relief. See N.C.G.S. § 15A-1345(e) (2001) (providing theprocedures to be followed in revoking a defendant's probation in order to afford full due process). As the record shows that the trial court properly followed the procedures delineated in section 15A-1345(e) prior to revoking defendant's probation, we conclude defendant received a fair and impartial hearing.
    In sum, as the evidence was sufficient to show that defendant violated certain terms and conditions of his probation, the trial court did not abuse its discretion in revoking defendant's probation and activating his suspended sentence.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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