NO. COA03-251
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.
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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.
I
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.
II
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.
Affirmed.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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