STATE OF NORTH CAROLINA
v. Buncombe County
No. 01 CRS 64545
CHARLES EVAN JOHNSON
Attorney General Roy Cooper, by Assistant Attorney General
Wendy L. Greene, for the State.
Carol Ann Bauer, for defendant-appellant.
CALABRIA, Judge.
On 10 July 2002, defendant pled guilty pursuant to a plea
agreement to breaking or entering and larceny after breaking or
entering. Defendant's sentence, a term of eight to ten months in
the North Carolina Department of Correction, was suspended and
defendant was placed on supervised probation for thirty-six months.
On 16 October 2002, a probation violation report was filed
alleging that defendant had failed to comply with the terms of his
probation. Specifically, the report alleged that defendant had
failed to report to his probation officer; failed to abide by his
curfew; failed to register as a sex offender; failed to make hiswhereabouts known to his probation officer; and was in violation of
the monetary obligation of his probation.
On 5 December 2002, a probation violation hearing was held in
Buncombe County Superior Court. Defendant denied the allegations
in the probation violation report. Defendant testified that he was
homeless, and the rules at the shelter and his lack of
transportation caused him difficulty meeting the terms of his
probation. Defendant stated that he did try to contact his
probation officer when he missed an appointment; that he was away
from his residence, the North Carolina Rescue Mission (“Rescue
Mission”), on 14 and 15 October 2002, because they ran out of beds;
that he believed he was away from the Rescue Mission on 3 October
2002 because it was raining and he got stuck at a bus shelter; that
he was never told what amount of money needed to be paid towards
his monetary obligations, and his officer never insisted that he
immediately begin making monthly payments; and that he registered
as a sex offender using the address of A Hope, where he received
his mail, because at the time he had not been approved at any
shelter. Defendant also testified that prior to being incarcerated
on the alleged probation violations, he had been seeking a
permanent residence and had an invitation from a friend to become
a roommate. The probation officer had attempted to examine the
apartment to approve it, as required by the terms of probation, but
the friend was not home when the officer stopped by and the officer
did not have a phone number for the friend. The trial court found defendant had not willfully violated his
probation when the shelter had been unable to accommodate him on 14
and 15 October 2002. However, the court found defendant had
willfully violated the other terms of his probation as alleged in
the 16 October 2002 report. The trial court did not proceed to
disposition on 5 December 2002, but rather continued the matter and
instructed defendant to find a permanent residence with a telephone
number. Meeting these terms would enable the probation officer to
more easily locate defendant, and defendant would be able to
properly register as a sex offender as required by a prior offense.
On 19 December 2002, defendant informed the court that his friend
would not allow him to move in because the friend intended to move
shortly and too many people were living there. Since defendant had
failed to comply with the requirement that he find a home, the
court revoked defendant's probation on the basis of the October
violations and activated his suspended sentence. Defendant
appeals.
Defendant first argues that the trial court failed to make
sufficient findings of fact to show that it had weighed and
considered his evidence. Defendant contends that he presented
competent evidence that his probation violations were not willful
and without lawful excuse, and that the court was required to make
detailed findings to justify the revocation of his probation. We
are not persuaded.
After the parties presented the evidence, the trial court
found defendant had violated certain terms of his probation asalleged in the probation violation report. The court is not
required to make specific findings of fact regarding each of the
defendant's allegations. State v. Williamson, 61 N.C. App. 531,
535, 301 S.E.2d 423, 426 (1983). As we previously explained:
Although the Judge could have been more
explicit in the findings by stating that he
had considered and evaluated defendant's
evidence . . . and found it insufficient to
justify breach of the probation condition, we
hold that his failure to do so does not
constitute an abuse of discretion. It would
not be reasonable to require that a judge make
specific findings of fact on each of
defendant's allegations tending to justify his
breach of conditions.
Id. (emphasis added). Furthermore, the trial court demonstrated it
considered defendant's evidence by finding that defendant did have
a lawful excuse for being away from his residence on 14 and 15
October 2002. Accordingly, the assignment of error is overruled.
Defendant next argues that there was insufficient evidence for
the trial court to find that his probation violations were willful
and without lawful excuse. “'[P]robation or suspension of sentence
is an act of grace' and not a right.” State v. Alston, 139 N.C.
App. 787, 794, 534 S.E.2d 666, 670 (2000) (quoting State v. Baines,
40 N.C. App. 545, 550, 253 S.E.2d 300, 303 (1979)). “Any [single]
violation of a valid condition of probation is sufficient to revoke
defendant's probation.” State v. Tozzi, 84 N.C. App. 517, 521, 353
S.E.2d 250, 253 (1987) (citations omitted). To revoke probation,
there need only be evidence satisfying a trial court, in its
discretion, “that the defendant violated a valid condition of
probation without lawful excuse.” Id. Moreover, for the court tofind defendant did not willfully violate the terms of his
probation, the defendant must “present competent evidence of his
inability to comply with the conditions of probation.” Id. If
defendant fails to demonstrate his violations were not willful,
“evidence of defendant's failure to comply [with the probation
terms] may justify a finding that defendant's failure to comply was
wilful or without lawful excuse.” Id.
In the case sub judice, the report alleged, inter alia,
defendant violated his probation by being away from the shelter on
the night of 3 October 2002. Defendant's statements concerning his
whereabouts on that date were equivocal and included the following
concessions: (1) “I don't remember exactly” and (2) that sometime
around 3 October 2002, “it was quite rainy, and I would maybe have
gotten stuck under a bus shelter, but I'm not quite sure if that
was the night or not.” Defendant's vague speculation for his
whereabouts was insufficient evidence of a lawful excuse for his
probation violation. Since the court need find only one violation
was willful to revoke probation, and defendant failed to meet his
burden regarding this violation, we conclude it was within the
trial court's discretion to revoke defendant's probation. The
order of the court is
Affirmed.
Judges TIMMONS-GOODSON and ELMORE concur.
Report per Rule 30(e).
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