State v Glaspy, (03-1471) 06/15/2004

Appeal by defendant from judgment entered 26 June 2003 by Judge Beverly T. Beal in the Superior Court in Mecklenburg County. Heard in the Court of Appeals 7 June 2004.

Attorney General Roy Cooper, by Assistant Attorney General Stacey A. Phipps, for the State.

Brannon Strickland, P.L.L.C., by Anthony M. Brannon, for defendant-appellant.

HUDSON, Judge.

    Defendant appeals from a judgment revoking his probation and activating a ten-year sentence for felonious breaking and entering and larceny. The judgment suspending sentence was entered on 4 August 1994, to run at the expiration of an active sentence defendant was then serving. Defendant was released from prison in June 2000, and began serving the probationary sentence of five years. On 17 April 2003, a report was filed alleging defendant violated probation by (1) failing to make any monetary payments after termination of the “structure day” program; (2) failing to complete the “structure day” program successfully; and (3) being convicted of misdemeanor possession of drug paraphernalia on 20April 2002. In revoking probation, Judge Beverly Beal found that defendant committed all of the alleged violations wilfully and without lawful excuse.
    Defendant contends that the evidence is insufficient to show he violated the terms of probation wilfully and without lawful excuse. He argues that the evidence does not support the finding that he failed to make any monetary payments because the evidence shows defendant made one payment in December 2002. Defendant also contends that the court failed to consider his evidence of lawful excuse due to his hospitalization for appendicitis; and that due to his health problems, he had been unable to obtain employment. Finally, he contends that no evidence was presented to show he had been convicted of the misdemeanor offense on 20 April 2002.
     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 wilfully 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 wilfulness 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 wilful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 834-35 (1985). The judge's finding of a wilful violation, if supported by competent evidence, will not be disturbed on appeal in the absence of amanifest abuse of discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
    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). Further, this Court has held that a sworn probation violation report is competent evidence sufficient to support an order revoking probation. State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981).
    Here, defendant admitted that he committed the violations identified in the report, including the misdemeanor offense and failing to complete the structured day program. Defendant presented no evidence of excuse or lack of wilfulness in committing the misdemeanor offense. This violation, standing alone, is sufficient to support revocation of probation. Furthermore, defendant failed to present any evidence of lawful excuse or lack of wilfulness in failing to complete the structure day program. Under these circumstances, we conclude the court did not abuse its discretion in revoking probation.
    “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, disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (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). Defendant has not demonstrated such willingness.
    Affirmed.    Judges STEELMAN and THORNBURG concur.
    Report per Rule 30(e).

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