Appeal by defendant from judgment dated 15 January 2003 by
Judge Ernest B. Fullwood in New Hanover County Superior Court.
Heard in the Court of Appeals 19 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Sonya M. Allen, for the State.
John T. Hall for defendant-appellant.
BRYANT, Judge.
Dedonnal McKoy (defendant) appeals from a judgment dated 15
January 2003 finding him in violation of his probation and
activating his suspended sentence.
On 1 May 2002, defendant pled guilty to two counts of
malicious conduct by a prisoner. The trial court consolidated the
convictions for judgment and sentenced defendant to a term of
imprisonment of 19 to 23 months. The trial court subsequently
suspended the sentence and placed defendant on supervised probation
for 36 months.
On 20 September 2002, defendant's probation officer filed a
violation report alleging defendant had violated the terms of
probation by: (1) failing to report to the probation officer asdirected, (2) failing to satisfy the monetary condition of
probation, (3) consuming an illegal drug or controlled substance,
and (4) committing multiple criminal offenses. The violation
report included in the record on appeal does not contain
defendant's signature indicating that he received a copy of the
violation report and there is an omission of the date of the
hearing. Defendant however appeared for the hearing concerning the
violation report. At the hearing, defendant signed a waiver of
counsel and represented himself. Defendant admitted that he
committed all of the violations alleged in the report.
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The sole issue on appeal is whether the trial court committed
plain error by accepting defendant's admissions to probation
violations. Defendant argues the State failed to serve defendant
with a copy of the violation report, and that without service of
process, the trial court did not have jurisdiction. We disagree.
“It is not a requisite to the validity of the service of the
notice [of probation violation] that the defendant sign it.”
State v. Langley, 3 N.C. App. 189, 191, 164 S.E.2d 529, 530 (1968).
Furthermore, while it is the better practice for the notice to
identify the date, time, and place of the session of court at which
the probation revocation hearing will be held, “when a defendant
voluntarily appears at the appointed time and place and
participates in the hearing as the defendant did in this case, he
is not prejudiced by the failure of the written notice to contain
such information.”
Id. at 191, 164 S.E.2d at 530;
see also Statev. Harris, 26 N.C. App. 254, 258, 215 S.E.2d 836, 839-40 (1975)
(holding the trial court did not err in not arraigning the
defendant before the probation revocation hearing because the
defendant was represented by counsel and was present when the trial
court announced he was charged with probation violations).
Finally, the failure to serve the violation report is not error
when the defendant signs a waiver of counsel indicating that he is
informed of the charges pending against him.
See State v. Gamble,
50 N.C. App. 658, 660, 274 S.E.2d 874, 876 (1981) (failure to serve
the defendant with written notice of a revocation hearing was not
error when the defendant was detained on a warrant charging him
with violation of probation and when a waiver of counsel was signed
by the defendant indicating he had been informed of the charges
against him).
Here, defendant did appear for his probation revocation
hearing. He signed a waiver of counsel indicating that the charges
had been explained to him and admitted that he committed the
violations charged in the violation report. At no time did
defendant challenge any lack of notice.
The judgment revoking defendant's probation and activating his
sentence is affirmed.
Affirmed.
Chief Judge EAGLES and Judge LEVINSON concur.
Report per Rule 30(e).
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