NO. COA03-1633
Appeal by defendant from judgment entered 9 June 2003 by Judge
Timothy L. Patti in Mecklenburg County Superior Court. Heard in
the Court of Appeals 25 October 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
Thomas E. Fulghum for defendant-appellant.
TIMMONS-GOODSON, Judge.
Defendant Kevin Lamonte Handy appeals from a judgment revoking
his probation and activating his suspended sentence. On appeal,
he contends that the trial court erred in finding that he violated
the terms and conditions of his probation as set forth in
paragraphs two and four of his probation violation report, and
revoking his probation and activating his suspended sentence.
These arguments are unpersuasive, and therefore, we affirm the
judgment of the trial court.
________________________
On or about 25 June 2001, defendant pled guilty to two counts
of taking indecent liberties with children and two counts ofintercourse and sexual offenses with students. In accordance with
his plea agreement, the trial court sentenced defendant to a
mitigated term of ten to twelve months imprisonment for the
intercourse and sexual offenses with students convictions, and
nineteen to twenty-three months imprisonment for the indecent
liberties convictions. The nineteen to twenty-three month sentence
for the indecent liberties convictions was, however, suspended and
defendant was placed on supervised probation. The terms and
conditions of defendant's probation included requirements that he
complete community service as directed by the community service
coordinator; “[r]emain within the jurisdiction of the Court unless
granted permission to leave by the Court or the probation officer”;
and “[r]eport as directed by the Court or the probation officer to
the officer at reasonable times and places and in a reasonable
manner, permit the officer to visit at reasonable times, answer all
reasonable inquiries by the officer and obtain prior approval from
the officer for, and notify the officer of, any change in address
or employment.”
On 12 March 2003, defendant's probation officer, Thomas
Dalton, filed a verified probation violation report alleging the
defendant had violated probation as follows: (1) he failed to
demonstrate that he had completed any of the required seventy-two
hours of community service; (2) he traveled from Maryland to
Georgia without permission, had not reported to his Maryland
probation officer, and when ordered to report back to Charlotte,
North Carolina, by 5 March 2003, he failed to do so; (3) he had abalance of $85.00 due to the specialized sexual offender program
that he attended; and (4) he traveled from Maryland to Georgia
without permission from the State of Maryland or the State of North
Carolina. A probation violation hearing was held in the superior
court on 9 June 2003.
After electing not to proceed on the first allegation in the
probation violation report, the State presented the testimony of
defendant's probation officer, Thomas Dalton, regarding the
remaining three allegations. Dalton explained that defendant
approached him in December 2002 about having his probation
transferred to Maryland. Dalton thereafter issued a travel permit
to defendant to travel to Maryland, where he was to report to
probation and parole officials there. Dalton subsequently received
information, from Agent Aladegoke Akinsola in Hyattsville,
Maryland, through the interstate compact division in Raleigh, North
Carolina, that defendant's probation was denied for transfer to
Maryland because defendant failed to report as directed and was
currently in Atlanta, Georgia, without permission from Akinsola.
At Dalton's request, Akinsola sent a letter dated 7 March 2003,
which detailed his reasons for rejecting defendant's probation
transfer request. The letter stated that defendant, who had been
assigned to Akinsola for investigation of interstate probation
transfer, failed to report to Akinsola by 13 January 2003 as
directed. Further, the letter stated that defendant failed to
demonstrate that he registered with the Maryland State Police
through the Prince George's Police Department as a sex offender. In fact, the letter stated that defendant went to Atlanta without
Akinsola's permission, and therefore, Akinsola opined that
defendant was a danger to the community and recommended that
defendant be returned to North Carolina immediately. Dalton also
testified that on 24 February 2003, after receiving the initial
communication from Agent Akinsola, he telephoned defendant and
instructed defendant to report to his office on 5 March 2003.
Defendant failed to report to Dalton until 24 March 2003, at which
time he was arrested for violating his probation. Dalton also
testified that defendant failed to pay the balance due to Blue
Ridge Behavior Systems for sex offender treatment received by
defendant, an amount of $85.00.
Defendant testified that he paid $440.00 to Blue Ridge
Behavior Systems, that he gave Dalton's assistant a receipt for his
records, and that he was told that the bill was paid in full.
Defendant further testified that he did register as a sex offender
in Maryland, and submitted documentation in support of his
testimony. However, defendant admitted that he did not have
permission to go to Georgia. He testified that when he talked to
Dalton in February 2003, Dalton instructed defendant to continue to
call Dalton and said that he had not talked to anyone from Maryland
yet. Defendant denied that Dalton told him to report to Dalton's
office on 5 March 2003. Defendant stated that he returned to North
Carolina a week before his arrest on 24 March 2003, during which
time he made appointments with Dalton, went to Dalton's office and
waited to see him, but that he did not see Dalton until the date ofhis arrest.
After hearing the testimony and arguments of counsel, the
trial court dismissed the third allegation, but found that
defendant had willfully and without lawful excuse violated the
terms and conditions of his probation as set out in paragraphs two
and four of the violation report. The court therefore revoked
defendant's probation and activated his suspended sentence.
Defendant appeals.
The sole issue before this Court on appeal is whether the
trial court erred in revoking defendant's probation and activating
his sentence. It is well settled that
since probation is “'an act
of grace by the State to one convicted of a crime,'...
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.”
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)). “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 thetrial 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 evidence of record tends to show that
defendant's probation officer, Thomas Dalton, filed a verified
violation report in the superior court on or about 12 March 2003,
alleging that defendant violated four terms and conditions of his
probation. At the violation hearing, the State elected not to
proceed on the issues presented in the first paragraph of the
violation report, and the trial court dismissed the allegations of
the third paragraph of the violation report. The State presented
the testimony of Dalton, which was in conformity with the remaining
allegations of his violation report. Dalton also explained the
procedure necessary for defendant to travel outside of Maryland.
Notably, Dalton testified that if defendant had been given
permission by Agent Akinsola in Maryland, a third-party travel
permit would have been issued to defendant and North Carolina would
have been notified that defendant was going to Georgia. Dalton
noted that neither he nor Akinsola gave defendant permission to go
to Georgia. No third-party travel permit was issued to defendant.
Defendant testified at the revocation hearing and admitted to
traveling to Atlanta, Georgia without permission of Akinsola orDalton. Initially, defendant contended that he attempted to get
permission from Akinsola, but Akinsola was not in his office.
Defendant further testified that he left telephone messages
explaining that he would not be present for a pre-arranged meeting
with Akinsola because he was traveling to Georgia for a job
interview. However, defendant subsequently testified that he spoke
with Akinsola about his interview in Georgia, and had been told by
Akinsola only “to contact him as soon as [he] could.” Defendant
further testified that he called Dalton as soon as he got to
Georgia, and Dalton told him to “hold tight, just continue to call,
he hadn't talked to anybody yet.” Defendant denied that Dalton
told him to report to his office on 5 March 2003; he testified that
Dalton told him only that “[he] needed to get back to North
Carolina but he didn't give [him] a date.” Defendant testified
that when he asked Dalton if there was a problem, Dalton assured
him that there was not. Defendant stated that he was in North
Carolina for a week before meeting with Dalton and being arrested,
that he had called Dalton on numerous occasions before that time,
and that he kept making appointments, but was unable to meet with
Dalton. Defendant denied absconding from the jurisdictions of
North Carolina and Maryland, or deliberately failing to comply with
the terms and conditions of his probation.
We conclude that the evidence was sufficient to satisfy the
trial court that defendant willfully and without lawful excuse
violated the terms and conditions of his probation as set forth in
paragraphs two and four of the violation report. Though defendantdenies willfully absconding from the jurisdictions of Maryland and
North Carolina, he did admit to having gone to Georgia without
permission from Agent Akinsola or Dalton. This, in and of itself,
is sufficient to support the trial court's revocation of
defendant's probation.
See Tozzi, 84 N.C. App. at 521, 353 S.E.2d
at 253. As to defendant's argument that Akinsola implicitly agreed
to allow him to travel to Georgia, we note that Akinsola's 7 March
2003 letter states that defendant went to Georgia without his
permission. Additionally, Dalton testified that if permission had
been granted for defendant to travel to Georgia by Maryland
officials, a third-party travel permit would have been issued by
Maryland and North Carolina would have been notified that defendant
was traveling to Georgia. No such third-party travel permit has
been shown to exist. Moreover, though defendant denied that he was
told to report back to Charlotte by 5 March 2003, the State
presented evidence to the contrary. It appears that the trial
court, as fact-finder, gave little weight to defendant's testimony
and contentions that his actions were not in willful and unlawful
disregard of the terms and conditions of his probation.
In light of the foregoing, we conclude that the trial court
did not abuse its discretion in revoking defendant's probation and
activating his suspended sentence. The judgment of the trial court
is, therefore, affirmed.
Affirmed.
Judges CALABRIA and LEVINSON concur.
Report per Rue 30(e).
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