STATE OF NORTH CAROLINA
v. Columbus County
No. 97 CRS 970
WENDELL FREEMAN,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General P.
Bly Hall, for the State.
Mark A. Key and Penny K. Bell for defendant-appellant.
ELMORE, Judge.
Defendant Wendell Freeman pled guilty to assault with a deadly
weapon inflicting serious injury on 7 January 1998. The trial
court sentenced defendant twenty-nine to forty-four months
imprisonment, which was suspended, and the court placed him on
supervised probation for sixty months. On or about 26 July 2002,
defendant's probation officer filed a violation report alleging
that defendant had violated the following conditions of probation:
(1) special condition of probation that he not use, possess or
control any illegal drug or controlled substance unless prescribed
by a physician in that defendant tested positive for marijuana on
22 February 2002 and 25 April 2002; tested positive for marijuanaand opiates on 19 June 2002; and altered drug screen results on 24
September and 20 November 2001; and (2) regular condition of
probation that he report as scheduled to his probation officer in
that he failed to report on 14 November 2001, 3 December 2001, 15
and 17 January 2002, and 1 and 16 July 2002. The report also
alleged that defendant failed to make court indebtedness payments
as ordered in the amount of $100.00 per month and was in arrears
$600.00; and that he failed to pay his probation supervision fees
in the amount of $20.00 per month and was in arrears $120.00.
This matter was heard on 8 October 2002. Defendant admitted
to using marijuana and having tested positive for drugs, but denied
trying to alter the results. Without mentioning any specific
dates, defendant also admitted to having failed to report as
scheduled to his probation officer. Defendant further admitted to
being in arrears on money owed to the court.
The State presented the testimony of defendant's probation
officer, Bess Coleman. Coleman gave testimony that defendant had
been on probation since 1997, and that this was his fourth
probation violation hearing. Previously, defendant was continued
on probation after being found in violation of various terms and
conditions of probation. Coleman noted that most recently, after
being returned to regular supervised probation, defendant tested
positive for drugs, missed a number of appointments, and was behind
on making his court ordered payments. The probation officer noted
that defendant missed a 3 December 2001 appointment with her,
because he was in jail for unpaid child support. Defendant'sprobation was scheduled to end in January 2003.
Defendant testified on his own behalf. He stated that his
child support payments (for three of his five children) prevented
him from making regular payments on his court indebtedness monies
and supervisory fees. Defendant noted that he had been jailed at
one time for nonpayment of child support. Defendant also explained
that he used drugs after one of his close friends was killed, and
he was unable to attend the funeral because he was in jail for
nonpayment of child support. He described this episodic drug use
as a “slipup[]” and not a drug problem. Defendant also attempted to
explain his problems with attending scheduled appointments with his
probation officer. Finally, defendant asserted that during nearly
five years of probation, he had not been charged with any
additional criminal offenses.
After hearing the testimony and arguments of counsel, the
trial court found that defendant had unlawfully violated the terms
and conditions of his probation, as alleged in the 26 July 2002
violation report. The trial court, therefore, activated
defendant's suspended sentence. Defendant appeals.
At the outset, we note that defendant's notice of appeal was
untimely filed on 1 November 2002, some twenty-four days after the
entry of judgment on 8 October 2002. See N.C.R. App. P.
4(a)(2)(requiring that notice of appeal in criminal cases be filed
within fourteen days after the entry of judgment). This appeal
must, therefore, be dismissed. However, in the interest of
justice, we elect to treat the failed appeal as a petition for writof certiorari. See N.C.R. App. P. 21(a) (providing that the writ of
certiorari may be issued “in appropriate circumstances” to permit
appellate review “when the right to prosecute an appeal has been
lost by failure to take timely action”).
To that end, we proceed to defendant's argument that the trial
court erred in revoking his probation, and activating his suspended
sentence. While it is generally the State's burden to show that a
defendant willfully or without lawful excuse violated the terms and
conditions of probation, this requirement may be waived in the
event of a defendant's “in-court admission of the willful or
without lawful excuse violation as contained in the written notice
(or report) of violation.” State v. Williamson, 61 N.C. App. 531,
533, 301 S.E.2d 423, 425 (1983). It is well settled 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,
353 S.E.2d 250, 253 (1987).
In the instant case, defendant admitted in open court to
having used and testing positive for the use of marijuana.
Defendant also admitted to having missed several scheduled
appointments with his probation officer. While defendant attempted
to excuse his failure to miss some of the scheduled appointments,
he failed to present any evidence that his drug use was not
willful. Though unfortunate, the death of defendant's friend does
not excuse defendant's continued use of drugs and positive drug
tests. In addition, there was sufficient evidence that tended to
show that defendant did willfully tamper with the drug testresults, that he willfully failed to report for scheduled
appointments, and willfully failed to make payments on his court
indebtedness and probation supervision fee. Although defendant
either denied having violated the terms and conditions of probation
and/or presented numerous excuses for his failure to comply with
them, the trial court was not required to accept his evidence as
true. Williamson, 61 N.C. App. at 535, 301 S.E.2d at 426. Hence,
the trial court did not err in revoking defendant's probation and
activating his suspended sentence.
Having so concluded, the judgment of the trial court is
affirmed.
Affirmed.
Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).
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