An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-656


Filed: 18 May 2004


         v.                        Durham County
                                No. 00 CRS 52135

    Appeal by defendant from judgment entered 3 February 2003 by Judge J.B. Allen, Jr., in Durham County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Lisa C. Glover, for the State.

    Marlet L. Massey, for defendant-appellant.

    CALABRIA, Judge.

    Defendant pled guilty on 20 September 2000 to possession of marijuana with intent to sell and deliver. The court sentenced defendant to a minimum term of six months and a maximum term of eight months in the North Carolina Department of Correction. The court suspended the sentence and placed defendant on supervised probation for 24 months.
    On 19 January 2001, defendant's probation officer filed a violation report alleging defendant violated probation by falling in arrears in the monetary condition of probation, by failing to remain within the jurisdiction, by failing to report to his probation officer, and by failing to obtain a TASC evaluation as required by the terms of the probationary judgment. In November2002, defendant was arrested on an unrelated charge and thereafter a hearing on the probation violation was set. At the call of the case on 3 February 2003, defendant's counsel moved to continue the hearing, stating “[t]here are some other matters that Mr. DeBerry needs to take care of.” The court denied the motion. Defendant then admitted that he committed the alleged violations. The court found that the violations were willful and without lawful excuse. The court revoked defendant's probation and activated the sentence.     Defendant contends the court erred by denying his motion to continue and also that the court abused its discretion by revoking his probation and activating the sentence.
    A trial court's discretionary ruling upon a motion to continue is ordinarily not subject to review absent a showing of a gross abuse of discretion. State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981). However, when the motion to continue raises a constitutional issue, the trial court's ruling is fully reviewable upon appeal. Id. Even if a constitutional issue is raised, the denial of a motion to continue is ground for a new trial only when defendant shows both that the denial was erroneous and that he was prejudiced as a result of the error. State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982).
    Defendant argues that his motion was based upon his constitutional right to confront witnesses and to call witnesses to testify on his behalf. However, nowhere in the motion to continue does defendant invoke these rights. Defendant simply stated he needed “to take care of” some unspecified matters. Aconstitutional issue not raised in the trial court will not be considered for the first time on appeal. State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). Even if defendant's vague reason proffered for seeking a continuance is sufficient to raise a constitutional issue for our consideration on appeal, we fail to see that defendant was prejudiced by the denial of the motion.
    To revoke probation “[a]ll that is required . . . is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended.” State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). Proof beyond a reasonable doubt is not necessary. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The burden of showing excuse or lack of willfulness is on the defendant and if the defendant fails to carry this burden, evidence of failure to comply is sufficient to support a finding that the violation was willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). The judge's finding of a willful violation, if supported by competent evidence, will not be disturbed on appeal in the absence of a manifest abuse of discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
    Defendant waived a violation hearing and admitted under oath that he was in arrears on the monetary condition as of the time of the violation report. He also admitted that he never reported tohis probation officer and that he never received an evaluation from TASC. The record contradicts defendant's assertion that he was told he was placed on unsupervised probation. Defendant, under oath, signed a transcript of plea acknowledging that the State recommended supervised probation. The 20 September 2000 judgment clearly states that defendant was placed on supervised probation and lists all of the terms and special conditions of probation. Every condition defendant violated is listed on the judgment.
    “Probation 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 probationer “carries the keys to his freedom in his willingness to comply with the court's sentence.” State v. Robinson, 248 N.C. 282, 285, 103 S.E.2d 376, 379 (1958). We conclude the court did not abuse its discretion by revoking probation and activating the sentence.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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