State v Lewis, (03-1537) 10/19/2004

Appeal by Defendant from judgment entered 13 January 2003 by Judge Clifton W. Everett, Jr. in Superior Court, Beaufort County. Heard in the Court of Appeals 11 October 2004.

Attorney General Roy Cooper, by Assistant Attorney General June S. Ferrell, for the State.

Terry F. Rose for defendant-appellant.

WYNN, Judge.

    Defendant Melissa Dawn Lewis appeals from a judgment and commitment revoking her probation and activating her suspended sentence. On appeal, Defendant argues that the trial court abused its discretion in finding that she willfully violated the conditions of her probation. Defendant further contends the trial court erred in denying her motion to continue her revocation hearing until the next session of court. We conclude the trial court acted within its discretion, and we therefore affirm the trial court's judgment.
    Defendant pled guilty to violating section 20-138.1 of North Carolina's General Statutes, and the trial court sentenced her totwenty-four months' imprisonment. The trial court suspended Defendant's sentence and placed her on supervised probation for twenty-four months. In addition to the regular conditions of probation, Defendant was required to meet the following special conditions of probation: serve thirty days in jail, pay jail fees, court costs and fines totaling $1,325.00, and obtain a substance abuse assessment and follow all recommended treatment.
    On or about 4 November 2002, Defendant's probation officer filed a violation report alleging the following violations: (1) failing to attend a scheduled probation office visit on 7 October 2002; (2) failing to comply with the monetary obligation of probation in that she was $205.00 in arrears on paying her fine and $80.00 in arrears on her supervision fees; (3) leaving her residence and failing to notify her probation officer of her new address; and (4) failing to report for DWI assessment or treatment.
    The matter of Defendant's probation violations was first heard on or about 9 January 2003 in Beaufort County District Court by Judge James W. Hardison. After Defendant waived a violation hearing and admitted to having violated the terms and conditions of probation as alleged, Judge Hardison revoked Defendant's probation and activated her suspended sentence. Defendant appealed de novo to the superior court and the matter was heard by Judge Clifton W. Everett, Jr. in Superior Court, Beaufort County on 13 January 2003.
At the outset of the 13 January hearing, Defendant's counsel made a motion to continue the hearing until the next session of court. Judge Everett denied the motion and heard evidence concerning thealleged violations. Defendant admitted to violating the terms and conditions of her probation, as alleged in the 4 November 2002 violation report. The court then questioned Defendant's probation officer regarding the allegations of the probation violation report. The probation officer read the sworn allegations of the violation report. He also explained his efforts to induce Defendant's compliance with the terms and conditions of probation. The probation officer stated he often called Defendant after she missed a scheduled visit to tell her, “Melissa, you have to get in here.” The officer stated that Defendant always had an excuse for missing the appointments. The probation officer also noted that he called the treatment facility where Defendant told him that she had obtained an assessment and attended some classes, and was told that Defendant had not been seen there.
    Defendant testified on her own behalf to various circumstances Defendant asserted prevented her from complying with the terms and conditions of her probation. She stated she was unable to attend scheduled appointments with her probation officer for almost a year after being placed on probation because she lacked transportation and lived in an abusive situation during that time. Defendant explained she was unable to meet her monetary obligations of probation as she worked cleaning houses sporadically, again, because she did not have reliable transportation and was in an abusive, controlling relationship. She also explained she had a drug assessment performed at the treatment facility, and went to three or four classes there. Defendant noted she attempted totransfer credit for those classes to another facility that accepted Medicaid. However, because she owed money to the first treatment facility, neither of the facilities would give her credit for the assessment performed. Defendant stated she had recently sought to have another assessment performed at the second treatment facility and completed enrollment information to obtain treatment there. Notably, Defendant testified she had been diagnosed with breast cancer, and that she missed some of her scheduled appointments with her probation officer because she was hospitalized “for quite awhile.”
    At the time of the hearing, Defendant had been employed for about a week, had access to a motor vehicle, and was no longer residing with the person who had been abusing her. Defendant did not explain why she changed her residence without informing her probation officer, or why she had not contacted him since 23 September 2002.
    After hearing the evidence and arguments of counsel, the trial court found and concluded that Defendant had willfully and without lawful excuse violated the terms and conditions of her probation as alleged in the 4 November 2002 probation violation report. The trial court therefore revoked Defendant's probation and activated her suspended sentence. Defendant appealed from this revocation.

    Defendant argues the trial court erred: (1) by revoking her probation on the grounds that she willfully violated the conditions of her probation; and (2) by denying her motion to continue herrevocation hearing until the next session of court. We affirm the judgment of the trial court.
    By her first assignment of error on appeal, Defendant argues the trial court erred in finding that the evidence was sufficient to show she willfully violated the terms and conditions of her probation. We disagree.
    It is well settled that since probation is “'an act of grace by the State to one convicted of a crime,'” State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999) (quoting 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 proceeding to revoke probation is not bound by strict rules of evidence and an alleged violation of a probationary condition need not be proven beyond a reasonable doubt.” Id. “All that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation.” State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998) (citation omitted). “[O]nce the State has presented competent evidence establishing a defendant's failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms.” State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002). “If the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation.” Id. at 438,562 S.E.2d at 540 (citation omitted). This Court has long held that “[a]ny violation of a valid condition of probation 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 instant case, Defendant admitted to having violated the terms and conditions of probation as alleged in the verified violation report. Moreover, Defendant's own testimony showed she violated various terms and conditions of her probation. Defendant, however, attempted to show that her violations were not willful by informing the court of various employment, transportation, and personal health problems, as well as her involvement in a controlling relationship. Significantly, Defendant failed to offer any excuse for moving from her residence of record and not informing her probation officer, or for why she had not contacted him since 23 September 2002. Her failure to so offer constitutes a sufficient basis upon which the trial court could properly revoke her probation. See Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. Accordingly, this assignment of error is overruled.
    By her second assignment of error, Defendant argues the trial court erred in denying her motion to continue. Defendant contends that “given the circumstances surrounding the defendant's health status, transportation issues, financial status and situations of domestic violence,” the trial court should have allowed her to continue this matter until the next session of superior court. Again, we disagree.
    It is well settled that whether to grant a motion to continue is an issue vested in the discretion of the trial court, reviewable only upon a showing of an abuse of discretion. State v. Daniels, ___ N.C. App. ___, ___, 596 S.E.2d 256, 258 (2004). In the instant case, Defendant sought a continuance in the matter in order to comply with the terms and conditions of her probation, informing the trial court that she was employed and had access to transportation. The evidence of record shows that Defendant had been on probation for two years and despite continued prompting by her probation officer, failed to comply with certain terms and conditions of her probation. The trial court gave defense counsel full opportunity to be heard on the matter of a continuance before denying the motion. Even if the matter had been continued, and Defendant had paid the arrearage on her monetary obligations and completed the therapeutic requirements of probation, Defendant could not have shown that a different result would have been obtained. Defendant's compliance with those conditions of probation during the period of the continuance would not have negated the fact that Defendant missed a scheduled office visit, failed to make contact with her probation officer since 23 September 2002, and left her place of residence without making her probation officer aware of her new residence. State v. Pickard, 107 N.C. App. 94, 101, 418 S.E.2d 690, 693 (1992) (even assuming that the trial court erred in denying the defendant's motion for a continuance, the defendant failed to show any prejudicial error so as to be entitled to a new trial). Accordingly, Defendant cannot show that the trial court committed prejudicial error in denyingher motion to continue. This assignment of error is then also overruled.
    Having overruled Defendant's assignments of error, we affirm the judgment of the trial court.
    Affirmed.
    Judges TYSON and GEER concur.
    Report per Rule 30(e).

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