STATE OF NORTH CAROLINA
v. Lee County
No. 02 CRS 6916
LACY LEROY MURCHISON, JR.
Attorney General Roy Cooper, by Special Deputy Attorney
General Sharon Patrick-Wilson, for the State.
William D. Spence, for defendant-appellant.
CALABRIA, Judge.
On 27 June 2002, Lacy Leroy Murchison, Jr. (“defendant”) pled
guilty to discharging a weapon into occupied property and larceny
from the person. Defendant was sentenced to a term of 23 to 37
months' imprisonment. In accordance with the plea agreement,
defendant's sentence was suspended and defendant was placed on
supervised probation for twenty-four months. Defendant's probation
was modified on 27 February 2003. As a condition of the modified
probation, defendant was required to pay monetary fees and to attend
and participate in the local Criminal Justice Partnership Program
(TASC). On 25 April 2003, a probation violation report was filed
alleging defendant had failed to comply with the terms of his
probation. Specifically, the report alleged defendant was in
arrears for the monetary obligation of his probation and had failed
to attend or participate in the TASC program. On 20 October 2003,
a probation violation hearing was held in Lee County Superior Court.
Defendant admitted to the allegations in the probation violation
report. Defendant's probation officer, Nicola Blue (“Ms. Blue”),
stated that defendant's main violation was the monies in arrears.
Ms. Blue's understanding was that the defendant's girlfriend was
prepared to pay $200 on the amount owed. Ms. Blue went on to say
that the defendant claimed not to know he was required to attend the
TASC program. Defendant did not offer any excuse for his
violations, simply stating that he worked with his father driving
trucks, as he had done for years. The court revoked defendant's
probation and activated his suspended sentence. Defendant appeals.
I. Revocation of Probation
Defendant first argues that the trial court erred in revoking
his probation based solely on unsworn statements from the district
attorney, probation officer, and defense attorney. Defendant
specifically argues that the probation violation hearing was a
criminal prosecution and, therefore, any testimony should have been
given under oath. We are not persuaded.
Proceedings revoking “probation [are] often regarded as
informal or summary.” State v. Tennant, 141 N.C. App. 524, 526, 540S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241, 246,
154 S.E.2d 53, 57 (1967)). In State v. Monk, this Court stated:
A proceeding to revoke probation is not a
criminal prosecution but is a proceeding solely
for the determination by the court whether
there has been a violation of a valid condition
of probation so as to warrant putting into
effect a sentence theretofore entered; and
while notice in writing to defendant, and an
opportunity for him to be heard, are necessary,
the court is not bound by strict rules of
evidence, and all that is required is that
there be competent evidence reasonably
sufficient to satisfy the judge in the exercise
of a sound judicial discretion that the
defendant had, without lawful excuse, willfully
violated a valid condition of probation.
132 N.C. App. 248, 252, 511 S.E.2d 332, 334-35 (1999) (quoting State
v. Pratt, 21 N.C. App. 538, 540, 204 S.E.2d 906, 907 (1974)
(citations omitted)). Besides the statement by defendant's
probation officer that defendant was behind on his payments and that
the defendant had not been attending or participating in the TASC
program, defendant admitted to the probation violations. As such,
this appeal does not implicate the issue of whether the unsworn
statements are sufficient to support defendant's probation
revocation, and this assignment of error is overruled.
II. Due Process of the Law
The defendant's second argument is that he was denied due
process at his probation revocation hearing. Specifically,
defendant contends his due process rights were denied because he was
not “invited to speak [,] . . . present relevant information [or]
. . . cross-examine the witnesses against him.” However, the
transcript reveals that neither defendant, nor his attorney, eitherasked to address the court or attempted to present relevant
information (through presentation of witnesses, cross-examination,
or otherwise) concerning the probation violations. Indeed, the
record and defendant's brief are bereft of any mention of the
“relevant information” that defendant alleged he was not permitted
to proffer. Thus, we conclude defendant has not been denied due
process of the law.
III. Findings of Fact Sufficient to Support Revocation of Probation
Defendant's third argument is that the court erred in revoking
defendant's probation without making sufficient findings of fact as
to each condition that it deemed to be violated. We disagree. The
Judgment and Commitment Upon Revocation of Probation, form AOC-CR-
607, was completed in every essential detail. In this document, the
trial court made findings that defendant violated the first and
second paragraphs of the probation violation report at issue.
Although a trial court is required to fully consider the wilfulness
of a defendant's probation violations and any proffered lawful
excuses, “the burden is on the defendant to present competent
evidence of his inability to comply; . . . otherwise, evidence of
defendant's failure to comply may justify a finding that defendant's
failure to comply was willful or without lawful excuse.” State v.
Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). In the
instant case, with respect to at least one of the violations, the
arrearage on the money defendant was ordered to pay as a condition
of probation, defendant admitted to the violation and did not assert
that his noncompliance was not willful. Rather, defendant requestedthat the trial court not revoke his probation because he was willing
to rectify the violation by making a payment. As the trial court
found that each violation, standing alone, was a sufficient basis
to revoke defendant's probation, and defendant offered no
explanation of why he violated the monetary payment condition of his
probation, the trial court's finding as to this violation is clearly
sufficient, and this finding supports the trial court's decision to
revoke defendant's probation.
IV. Abuse of Discretion in Revoking Probation
Defendant's fourth argument is that the trial court abused its
discretion in revoking defendant's probation and activating his
sentence. Defendant contends the probation officer's statement that
defendant's girlfriend was prepared to make a payment on the monies
owed by defendant implied that neither the State nor the probation
officer was seeking revocation. Defendant also contends that he was
not made aware of the requirement that he attend and participate in
the TASC program.
After careful review of the record, briefs and contentions of
the parties, we find no error. “Any violation of a valid condition
of probation is sufficient to revoke [a] defendant's probation. All
that is required to revoke probation is evidence satisfying the
trial court in its discretion that the defendant violated a valid
condition of probation without lawful excuse.” State v. Tozzi, 84
N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). Once the State has
met its burden of proving the existence of a probation violation,
which was in this case proven by defendant's admission, the burdenshifts to the defendant to present competent evidence of his
inability to comply with the conditions of the probation. State v.
Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). In the
case sub judice, it was alleged that defendant violated his
probation by failing to pay his monetary fees. Defendant admitted
the violation and offered no lawful excuse. The fact that
defendant's girlfriend was in court and prepared to pay money on
defendant's obligation does not excuse defendant's prior failure to
pay the monetary fees. Accordingly, we conclude that it was within
the trial court's discretion to revoke defendant's probation.
No error.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
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