STATE OF NORTH CAROLINA
v. Gaston County
No. 03 CRS 5607
TERRY L. SANDERS
Attorney General Roy Cooper, by Special Deputy Attorney
General Mabel Y. Bullock, for the State.
Gregory A. Newman for defendant-appellant.
LEVINSON, Judge.
Defendant pled guilty to conspiracy to traffic cocaine on or
about 8 October 1999. The trial court sentenced defendant to a
suspended sentence of 35-42 months imprisonment, and placed him on
supervised probation for 60 months. The trial court also imposed
a $10,000.00 fine on defendant. On or about 17 March 2003,
defendant's probation officer filed a violation report with the
superior court, alleging that defendant had violated the terms and
conditions of his probation by (1) missing scheduled office visits
on 30 April 2002 and 23 July 2002, and (2) failing to fulfill the
monetary condition of his probation.
The matter of defendant's probation violations was heard by
Judge David Cayer in Gaston County Superior Court on 23 June 2003. The State presented the testimony of defendant's probation officer,
LaShanta Powe, which tended to show that defendant missed two
monthly scheduled office visits as alleged in the violation report.
Powe explained that, though she was not defendant's probation
officer at the time, notations in defendant's file made by
defendant's previous probation officer showed that defendant had
been notified in person on 19 March 2002 of the 30 April 2002
visit; and had been notified in person on 25 June 2002 of the 23
July 2002 visit. Powe began supervising defendant on 31 December
2002.
Powe testified that defendant had been on probation for
approximately four years, and had passed all drug tests. However,
despite being employed and having a gross salary of $21,000.00,
Powe explained that defendant paid no money toward his court costs,
fine and community service fee. Powe stated that defendant was
originally ordered to pay $195.00 per month, but that amount was
reduced when it was determined that he was unable to make full
payment. Powe explained, “it was emphasized to him to pay
something to show some effort to do something, and so we did not
enforce the 195, but we said make an effort to pay something.”
Finally, Powe noted that she and her chief had encouraged defendant
to find another job because his employment frequently required him
to travel out of town.
Defendant testified on his own behalf. He stated that he had
three probation officers since being placed on probation in October
1999. Defendant noted that at one time, there was a period ofabout three months, during which he did not hear from anyone
concerning his case. He denied being personally aware of the
scheduled office visits on 30 April 2002 and 23 July 2002. In
fact, defendant stated that probation officer Shawn McGinnis told
him that he had left a message with his mother about the 23 July
2002 appointment. Defendant explained that his mother was 77 years
old and may have forgotten to tell him about the call. Defendant
admitted that he had been discharged from Bankruptcy in June 2002.
Further, he conceded that he had not made any payments toward his
monetary obligations of probation because of home maintenance and
repair work needs.
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 his probation as
alleged in the 17 March 2003 probation violation report. The court
revoked defendant's probation and activated his suspended sentence.
Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred in finding that the evidence was sufficient to show that he
wilfully violated the terms and conditions of his 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 (1980)), “a
proceeding to revoke probation is not bound by strict rules ofevidence 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).
“[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. This Court has long held, “[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, the State's evidence was that defendant
had been notified in person on 19 March 2002 of the 30 April 2002
scheduled meeting; and had been notified during his 25 June 2002
office visit of the 23 July 2002 scheduled meeting. The State's
evidence further showed that though defendant had been employed at
all pertinent times until February 2003, and that his payments had
been reduced in an effort to allow him to meet his monetary
obligation of probation, defendant had made no payment for the fouryears he had been on probation.
Defendant denied ever being informed about the scheduled
monthly meetings for April and June 2002. As to the allegation
that he failed to comply with the monetary obligations of
probation, defendant noted that he had filed bankruptcy at the time
that he was placed on probation. He testified extensively
regarding his salary and expenses: that he grossed approximately
$1,100 per month from his employment; that he had a mortgage of
$715 per month on which he owed twenty-five more years; and that
his payments under bankruptcy were $298 per month. However, even
after he was discharged from bankruptcy, in June of 2002, defendant
failed to make any payments on his probationary obligation. He
admitted to having the “extra money,” but stated that he decided to
make needed repairs to his residence.
We conclude that the State presented sufficient evidence of
defendant's violations of certain terms and conditions of his
probation. Even if defendant's evidence were taken as true, it is
uncontroverted that at the time that he had the “extra money” to
pay something towards the monetary obligation of his probation, he
chose to use that money for something else. At the time of the
hearing, defendant had made no payments towards this obligation.
Defendant's evidence simply does not show an inability to comply
with this particular term of his probation. In light of the
State's evidence showing the willful violation of the terms and
conditions of defendant's probation, and defendant's failure to
satisfy the presiding judge otherwise, we hold that the court didnot abuse its discretion in revoking defendant's probation.
Having so concluded, the judgment of the trial court is
affirmed.
Affirmed.
Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).
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