An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1100


Filed: 4 May 2004


         v.                        Forsyth County
                                Nos. 98CRS8299;
LISA OLIVER                             8301 and 46860

    Appeal by defendant from judgments entered 6 March 2003 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General William P. Hart and Assistant Attorney General Christopher W. Brooks, for the State.

    Peter Wood for defendant-appellant.

    HUNTER, Judge.

    This appeal is from judgments revoking probation and activating three sentences of a minimum term of six and a maximum term of eight months, to run consecutively, for convictions of possession with intent to sell or deliver marijuana, maintaining a dwelling for the keeping of controlled substances, obtaining property by false pretenses, and conspiracy to obtain property by false pretenses. The violation reports charged the following violations: (1) failure to keep appointments with the probation officer; (2) failure to stay current with the monetary condition; (3) failure to obtain employment; and (4) commission of another offense, namely, felonious possession of stolen goods. At the callof the case for hearing, Lisa Oliver (“defendant”) admitted that she willfully violated the conditions of probation.
    Defendant first contends that the court committed plain error by considering prior violations in deciding to activate the sentences. She argues the evidence of prior violations was not admitted into evidence and therefore was incompetent. However, formal rules of evidence do not apply in a probation revocation hearing or in a sentencing hearing. N.C. Gen. Stat. § 15A-1345(e) (2003); N.C. Gen. Stat. § 15A-1334(b) (2003). Moreover, it is well established that “[a] trial court may take judicial notice of earlier proceedings in the same cause.” In re Isenhour, 101 N.C. App. 550, 553, 400 S.E.2d 71, 73 (1991). Thus, we reject defendant's first contention.
    Defendant's remaining contention is that the court abused its discretion by revoking probation and ordering the three sentences to run consecutively. “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). To revoke probation:
            All 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). 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).
    Here, defendant admitted that she willfully violated probation. The record shows multiple and repeated violations. The record further shows that she had previously been found in willful violation of probation in this matter. Given these circumstances, we find no abuse of discretion.
    The judgments are affirmed.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***