STATE OF NORTH CAROLINA
v. Onslow County
No. 02CRS62222
CALVIN LEE MORGAN
Attorney General Roy Cooper, by Associate Attorney General
Kelly L. Sandling, for the State.
George E. Kelly, III, for defendant-appellant.
THORNBURG, Judge.
Defendant Calvin Lee Morgan pled guilty to possession of a
stolen motor vehicle, whereupon the trial court sentenced defendant
to 10-12 months imprisonment. The trial court suspended
defendant's active sentence and placed him on supervised probation
for 36 months. On or about 13 June 2003, defendant's probation
officer filed a violation report, alleging that defendant had
violated the terms and conditions of his probation, as follows:
1. . . . Offender was tested on 6-2-03 and
test came back adulterated and offender was
retested on 6-5-03 and that test was positive
for marijuana[.]
2. . . . Offender was instructed to pay $35
per month beginning 3-1-03 and as of the dateof this report offender has not made a payment
putting him in arrears of $140.00[.]
3. . . . Offender was instructed to pay $30
per month beginning on 3-1-03 and has not made
a payment putting him in arrears of $120.00[.]
4. . . . While conducting a search of
offenders [sic] residence on 6-12-03 officers
found a bag containing crack cocaine and a bag
containing marijuana.
5. . . . Offender quit his job at Checkers on
Marine Blvd on 6-5-03[.]
A hearing on defendant's alleged probation violations was held
at the 28 July 2003 criminal session of Onslow County Superior
Court. From the transcript of the proceedings, it appears that
upon defendant's motion, appointed counsel had been discharged on
or about 24 July 2003. A waiver of counsel form was not, however,
executed at that time. After being briefly questioned by the trial
court about his decision to discharge counsel and represent himself
on 28 July 2003, defendant executed a waiver of counsel form,
waiving his right to all assistance of counsel. Defendant then
went on to admit that he had violated the terms and conditions of
his probation as alleged in the 13 June 2003 probation violation
report.
The trial court asked defendant's probation officer, Becky
Kellum, to “[t]ell me about him[.]” Kellum testified that she spoke
to defendant at length just a day before he quit his job. During
this conversation, Kellum noted that she reiterated how important
it was to keep his job. On the next day, Kellum received a call
from defendant's employer stating that he had not shown up for
work. Further, Kellum explained that defendant had “not paid hismoney. He's not done anything. He tested positive. We found
drugs in his house. And he's staying in a place he knows he's
banded [sic] from.” Finally, Kellum said, “I can't do anything
with him, Judge.”
The court then asked defendant if he had anything to say. The
court explained to him, “You are not required to but if you wish to
I'm happy to hear you.” Defendant went on to tell the court that
he was not expecting to be on house arrest and had trouble finding
a job while being on house arrest. Defendant further told the
court that he could not find a job initially because he did not
have two forms of identification. After finding his identification
in his sister's dresser drawer, however, defendant noted that he
did try to find employment. Defendant told the court that he did
not have transportation, money, nor a job; and that he had been
locked up in Burgaw, North Carolina for a month. When asked by the
court if house arrest had interfered with his ability to comply
with the terms and conditions of probation, defendant said: “I
wasn't expecting to be on house arrest . . . . And plus I haven't
even been charged with selling no drugs out of the house. I just
been accused.” When asked by the court if there was anything
further, defendant stated, “I just came home from prison, Your
honor. This is not helping me none. It just keeps sending me back
to prison and I'm back and forth[.]”
Based upon this evidence, the trial court found that defendant
waived a violation hearing in that he “came into court and freely
and voluntarily admit[t]ed violations,” as alleged in the violationreport. The court found these admissions to be a substantial
reason to revoke his probation and, in its discretion, did so and
activated defendant's suspended sentence. Defendant appeals.
While defendant presents three assignments of error and
corresponding arguments on appeal, the sole issue before this Court
is whether there was sufficient evidence before the trial court to
satisfy the court that defendant violated a valid condition of
probation, and that the violation was willful and without lawful
excuse. Probation is an act of grace, and therefore, a proceeding
to revoke probation is often regarded as informal and the trial
court is not bound by strict rules of evidence. State v. Tennant,
141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000). 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
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. Dixon, 139 N.C. App.
332, 341, 533 S.E.2d 297, 304 (2000).
While the minimum requirements of due process requires the
State to present evidence to show the willful violation of
probation, such a requirement may be waived by a defendant's “in-
court admission of the willful or without lawful excuse violation
as contained in the written notice (or report) of violation.” State
v. Williamson, 61 N.C. App. 531, 533, 301 S.E.2d 423, 425 (1983).
It is well-settled that “[a]ny violation of a valid condition ofprobation is sufficient to revoke [a] defendant's probation.” State
v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).
In the case sub judice, the trial court had before it a
verified probation violation report, which was read by the
prosecutor during the hearing. Defendant subsequently admitted to
violating the terms and conditions of his probation, and though the
trial court was not required to do so, the court allowed defendant
to explain his reasons for violating his probation. Even assuming
that defendant's discourse addressed his reasons for not
maintaining employment and failing to meet his monetary obligations
of probation, defendant wholly failed to offer any excuse (lawful
or otherwise) for testing positive for drug use and for the
discovery of cocaine in his residence. Accordingly, the trial
court had before it plenary evidence from which it could find that
defendant violated at least one valid term and condition of his
probation. In accordance with Tozzi, this one violation is
sufficient to support the trial court's decision to revoke
defendant's probation. We reject defendant's contention that the
trial court was required to consider other options, such as
modification or continuation, before revoking defendant's
probation. See State v. Jones, 78 N.C. App. 507, 510, 337 S.E.2d
195, 197-98 (1985)(providing that due process does not generally
require the trial court to indicate that it has considered
alternatives to incarceration prior to revoking probation). We
conclude that the trial court did not abuse its discretion in
revoking defendant's probation and activating his sentence. Finally, we note that defendant's challenge to his waiver of
counsel is not properly before the Court, since defendant did not
assign error to this matter in the record on appeal. See N.C. R.
App. P. 10(a)(“the scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal”); State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d
766, 771 (1992)(providing that the appellant on appeal may only
argue errors properly set forth in the assignments of error listed
in the record on appeal).
In light of the foregoing, the judgment of the trial court is
affirmed.
Affirmed.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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