Probation and Parole--probation revocation-_improperly allowing victim to give opinion
The trial court erred in a probation revocation case by allowing the victim to give his
opinion as to whether defendant's probation should be revoked, because: (1) the trial court did
not exercise its discretion in revoking defendant's probation, but instead allowed the victim to
determine whether defendant's probation should be revoked; and (2) defendant is entitled to
have and receive such punishment for his offenses as the judge may impose and as the law
allows.
Attorney General Roy Cooper, by Assistant Attorney General
Stacey A. Phipps, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Kelly D. Miller, for defendant-appellant.
CALABRIA, Judge.
Keith Wayne Arnold (“defendant”) appeals from a judgment
revoking his probation and activating two consecutive sentences of
ten to twelve months in the North Carolina Department of
Correction. On appeal, defendant takes issue with the trial court
allowing the victim in this case to give his opinion as to whether
defendant's probation should be revoked. After a review of the
record, we reverse and remand for further proceedings.
Defendant pled guilty to two counts of obtaining property by
false pretenses after duping Shelby Tart (the “victim”) into
purchasing two mobile homes that were subject to financing lienstotaling $22,750. The trial court ordered that defendant pay
$22,750 in restitution to satisfy the financing liens of the mobile
homes bought by the victim. Initially, the trial court continued
judgment until 5 June 2003, contingent upon defendant paying the
first installment of $8,000 by that date. When defendant paid the
first installment as ordered, the trial court entered judgment on
5 June 2003 suspending defendant's sentences and placing him on
supervised probation for thirty-six months. In addition to the
regular terms and conditions of probation, defendant was ordered to
pay the balance of the restitution due to his victim within 240
days from the entry of judgment.
On or about 6 August 2003, defendant's probation officer filed
violation reports in each of defendant's cases, alleging the
following violations: (1) failure to contact his probation officer
in Hoke County on 6/6/03, 6/16/03, 6/25/03, 7/1/03, 7/15/03, and
7/16/03; (2) failure to pay court fees as ordered by the court and
being $912 in arrears; (3) residence unable to be verified due to
no one being there and there being no sign of occupancy on 6/13/03,
7/15/03, 7/16/03, and 7/20/03; (4) leaving the state without
permission to go to Florida on business. Defendant's probation
revocation hearing was held on two court dates, 28 October and 3
November 2003, by Judge James F. Ammons, Jr. in Cumberland County
Superior Court.
At the outset of the 28 October 2003 hearing, defendant,
through counsel, admitted to having gone to Florida to work.
Counsel, however, explained that there was some confusion becausedefendant believed his previous attorney had made arrangements with
his probation officer entitling him to do so. Defendant returned
to North Carolina when he finished his contract and was arrested
for probation violations.
The court next heard from defendant's probation officer, who
recommended that defendant be required to pay the $8,000
restitution payment that was currently due. Due to the problem of
trying to keep up with defendant and his other pending cases in
various other counties, the probation officer recommended that the
court revoke defendant's probation but suggested that the court
give defendant an opportunity to “purge” himself of the revocation
by paying the next restitution payment at the next session of
court. The court then heard from the victim, as to the amount
still owing to him. Finally, the court conversed at length with
defendant and counsel, who assured the court that two of
defendant's workers were coming from Florida with funds to cover
the $8,000 restitution payment. Thereafter, the trial court found
that defendant had willfully violated the terms and conditions of
his probation and continued the matter until Monday, 3 November
2003.
When court reconvened on 3 November 2003, defendant had not
paid the restitution owed. The trial court entered judgment
revoking defendant's probation and activating his sentences.
Defendant appeals, asserting the trial court erred in allowing the
victim to decide whether his probation should be revoked.
Defendant contends that the trial court violated the “minimumrequirements of due process” when it abdicated its decision-making
authority to the victim in this case. We agree.
“'[P]robation 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)). Accordingly, “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. Rather, “[a]ll 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., 149 N.C. App. at 438, 562 S.E.2d at
540. As there are no issues concerning whether there was a willful
violation of a valid condition of probation, our review is limited
to whether the trial court properly exercised its discretion in
revoking defendant's probation.
During the 28 October 2003 hearing, the trial court noted ithad already “adjudicated the case,” and indicated it would revoke
defendant's probation if defendant failed to make the necessary
restitution payment on or before 3 November 2003. While that may
appear, initially, to be dispositive of defendant's appeal, we note
the trial court made several comments in the subsequent 3 November
hearing which belie the trial court had, in fact, determined to
revoke defendant's probation. These statements by the trial court
at the 3 November hearing include the following: (1) “I'm going to
send you to prison for the entire term unless [the victim] says
give him another chance because it's his money[,]” (2) “I'm not
going to [let you out] unless [the victim] asks me to . . . I am
going to leave it in his hands[,]”, (3) “If [the victim] want[s] me
to give [defendant] another chance, I will do so. If not, I'll
send him to prison today[,] (4) “If you [the victim] want me to, I
will continue [defendant] on probation . . . . I want you [the
victim] to make that decision.” After these comments, the victim
and trial court engaged in the following dialogue:
[The victim]: My decision is, Your Honor,
that he's in too much trouble . . . . I think
he needs to go somewhere and grow up.
The Court: Okay.
[The victim]: That's my thoughts.
The Court: You want me to send him on?
[The victim]: Yes, sir.
The trial court reiterated that defendant willfully violated the
terms and conditions of his probation and revoked defendant's
probation. These comments by the trial court indicate it did not
exercise its discretion in revoking defendant's probation. We
agree with defendant that, under the unusual circumstances in thiscase, the trial court abdicated its duty to exercise its discretion
and, instead, allowed the victim to determine whether defendant's
probation should be revoked. As noted in Terry, the decision to
activate a defendant's probation lies within the trial court's
“sound discretion” and that discretion cannot be given over wholly
to another to determine the appropriate outcome with respect to
whether a defendant's probation should be revoked.
The State argues, in the alternative, that defendant cannot
show a different result would have been reached at trial absent the
alleged error because “[d]efendant admitted the violations and
regardless of [the] victim's input, his sentence could be
activated.” The State is correct in noting that defendant's
sentence could be activated. It is equally true, however, that the
trial court was not obligated to activate defendant's sentence.
Where the trial court failed to determine whether to activate
defendant's sentence and, instead, allowed the victim to revoke
defendant's probation, we are of the opinion that prejudicial error
has occurred. Accord State v. Phillips, 185 N.C. 614, 621-22, 115
S.E. 893, 897 (1923) (noting that the court alone has “power to
pass upon the . . . guilt of a defendant or his liability to
punishment” and reversing the imposition of punishment on a
suspended sentence upon observing that “[t]he judge should have
ascertained whether the allegation of the state that the prisoner
had violated the condition on which the judgment was suspended had
been shown, and . . . [i]f he decided upon competent evidence that
it had been so violated, [the judge] should then have proceeded toimpose such punishment as, in his sound discretion, the
circumstances of the case and the law required”). As in Phillips,
we hold defendant was not properly sentenced and is entitled “to
have and receive such punishment for his offense as the judge may
impose and as the law allows.” Id.
Reversed and remanded.
Chief Judge MARTIN and Judge GEER concur.
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