State v Johnson, (03-832) 05/04/2004

Appeal by defendant from judgment entered 4 September 2002 by Judge David Q. LaBarre in Durham County Superior Court. Heard in the Court of Appeals 19 April 2004.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Dorothy Powers, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.

HUNTER, Judge.

    On 20 October 1994, a jury convicted Melvin Ricky Johnson (“defendant”) of possession of schedule II cocaine. After imposing a sentence of four years, Judge A. Leon Stanback suspended the sentence and ordered that defendant be placed on supervised probation for five years and that he be assigned to the electronic house arrest (“EHA”) program for ninety days. Defendant appealed, and this Court affirmed the conviction and sentence. State v. Johnson, 124 N.C. App. 462, 478 S.E.2d 16 (1996), cert. denied, 345 N.C. 758, 485 S.E.2d 304 (1997). At a hearing on 15 April 2002, Judge Ronald L. Stephens (“Judge Stephens”) found that execution of probation had been suspended while the case was on appeal and that defendant had not subsequently appeared in court for judgment to beentered. After determining that defendant's probation would begin on 15 April 2002, Judge Stephens placed defendant on supervised probation for five years and ordered him to serve ninety days of EHA in accordance with the original judgment entered on 20 October 1994.
    On 29 May 2002, probation officer Kenya P. Thomas (“Thomas”) filed a violation report which alleged that defendant had willfully violated the terms of his EHA on six occasions between 2 May 2002 and 27 May 2002. Judge David Q. LaBarre (“Judge LaBarre”) held a probation violation hearing on 4 September 2002. After finding that defendant had willfully violated the EHA condition of his probation, Judge LaBarre activated defendant's sentence of four years imprisonment. From the trial court's judgment, defendant appeals.
    Defendant's counsel brings forward two of defendant's ten assignments of error on appeal and presents two arguments in defendant's brief. She states, however, that “after repeated and close examination of the record, extensive review of relevant law, and consultation with both the Appellate Defender and defendant's former appellate counsel, [counsel] is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.” Defendant's counsel “requests this Court to conduct a full examination of the record on appeal for possible prejudicial error and to determine whether any justiciable issue has been overlooked by counsel.” By letter dated 9 October 2003, defendant's counsel informed defendant that in her opinion therewas no error in defendant's trial and that defendant could file his own arguments in this Court if he so desired. Copies of the transcript, record, and the brief filed by counsel were sent to defendant. We hold that defendant's counsel has substantially complied with the holdings in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985). On 23 October 2003, defendant filed correspondence containing pro se arguments with this Court. Pursuant to Anders and Kinch, we must determine from a full examination of all the proceedings whether this appeal is wholly frivolous.
    As an initial matter, while both counsel and defendant present two arguments that Judge Stephens erred by denying defendant's request for appointment of counsel at the 15 April 2002 hearing, the record does not show that defendant gave notice of appeal from the 15 April 2002 judgment which imposed the original conditions of probation. The issue is therefore not properly before this Court for review. See State v. Rush, 158 N.C. App. 738, 741, 582 S.E.2d 37, 39 (2003). We note in our discretion, however, that the 15 April 2002 judgment merely placed defendant on probation in accordance with the 1994 judgment and sentence in which this Court had previously found no error. See Johnson, 124 N.C. App. 462, 478 S.E.2d 16.
    Defendant also argued that he received ineffective assistance of counsel because his counsel did not challenge allowing Thomas to read from a report prepared by someone else that was not evenentered into evidence. He complains he was denied the right to confront his accuser. Our review of the record shows that the violation report was signed by probation officer Thomas. We further note that the issue of whether defendant actually violated the conditions of his EHA as alleged in the violation report had been conceded by his counsel at the start of the probation revocation hearing. When Judge LaBarre asked if defendant admitted or denied the allegations in the violation report, defendant's counsel stated defendant was “going to deny the willfulness of those violations.” Defendant's argument is without merit.
    In his final argument, defendant claims Judge LaBarre “revoked my probation more so for other reasons than the actual violations I was accused of. I do not believe his decision was based on the actual evidence of the violation.” Our review of the hearing transcript shows that Judge LaBarre expressed that the terms of defendant's EHA were minimal, yet defendant had failed to conform to them. In frank language Judge LaBarre stated that defendant had abused the system and that probation was not going to work for defendant. In the written judgment, Judge LaBarre found that the condition was valid and that defendant had violated the condition willfully and without valid excuse. “All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). Our review of the evidence in the record reveals no abuse of discretion.    As for the remaining assignments of error for which no argument was presented, we have reviewed them and found them to be without merit. Having reviewed the entire record, we find the appeal to be wholly frivolous.
    No error.
Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***