State v McClain, (04-378) 05/03/2005

Appeal by defendant from judgments entered 15 December 2003 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 21 February 2005.

Attorney General Roy Cooper, by Assistant Attorney General Elizabeth L. Oxley, for the State.

George E. Kelly, III for defendant-appellant.

GEER, Judge.

    Defendant Stephanie Cartiss McClain appeals from the trial court's judgments revoking her probation, arguing primarily that the court's decision is not supported by sufficient evidence. Based on our review of the record, we disagree and, therefore, affirm.
    In May 2000, defendant pled guilty to eight charges of obtaining property by false pretenses. The trial court sentenced defendant to two consecutive eight to ten month sentences, suspended the sentences, and placed defendant on 60 months of supervised probation. On 24 November 2003, defendant's probation officer filed two identical probation violation reports, stating that defendant had violated her probation by: (1) failing tocomplete community service; (2) failing to report to her probation officer; (3) being away from her residence during specified hours set by her probation officer; (4) not making required monetary payments; (5) failing to obtain/retain satisfactory employment; and (6) failing to report for her TASC assessment. In an addendum, defendant's probation officer also stated that defendant had left her place of residence without first receiving permission from her probation officer.
    Judge E. Lynn Johnson held a probation violation hearing on 15 December 2003. Defendant's probation officer testified that defendant had paid only $900.00 of the $7,146.00 restitution amount. With respect to her address, the probation officer testified that he had "repeatedly told [defendant] that she has to make her whereabouts known to me everyday," but that defendant still left her mother's residence and did not tell her probation officer where she had gone. He reported to the trial court that this was the fourth time defendant had "been violated" and he did not "think that she's going to do anything on probation."
    Defendant, representing herself, admitted the violations with the exceptions of violations (1) and (6). She testified that she had moved from her mother's house after 30 days because her mother was in Section 8 housing. She stated that she had not told her probation officer about this move because she did not have a stable residence until 8 or 9 December 2003. Defendant further testified that she started working at the Sports Authority on 25 or 26 November 2003 and promised that she would make payments towards herrestitution. Defendant asked that her probation be reinstated.
     After hearing all the evidence, the trial court found that supervised probation no longer served a useful purpose and activated the underlying sentences. In its judgment and commitments upon revocation of probation entered 15 December 2003, the trial court found that defendant had violated the conditions of her probation as set forth in paragraphs 2, 3, 4, and 5 in the Violation Report or Notice dated 24 November 2003 and "the defendant violated each condition willfully and without valid excuse . . . ." The court also found that each violation was in and of itself a sufficient basis upon which to revoke defendant's probation. Accordingly, the trial court activated defendant's original sentences. Defendant appeals.
    The sole issue before this Court is whether the trial court erred in revoking defendant's probation and activating her suspended sentence. It is well settled that "'[p]robation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime.'" State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)). In a hearing to revoke probation, the evidence must be such as to "reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended." State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). A verifiedprobation violation report is competent evidence sufficient to support revocation of probation. State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981). Once the State meets its burden, the burden then shifts to defendant to "present competent evidence of his inability to comply with the conditions of probation; . . . otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was wilful or without lawful excuse." State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). "Any violation of a valid condition of probation is sufficient to revoke [a] defendant's probation." Id.
    We conclude the State presented sufficient evidence to show that defendant willfully violated the conditions of her probation without lawful excuse. Here, defendant admitted violations 2, 3, 4, and 5. Moreover, defendant's probation officer testified that defendant "did not tell me where she was." With respect to the issue of willfulness or lawful excuse, defendant offered no explanation at all for failing to obtain/retain satisfactory employment prior to obtaining employment at the Sports Authority or for failing to make prior restitution payments; she simply promised to make payments in the future. As for the other violations relating to her failure to report to her probation officer and being away from her residence, the only explanation provided by defendant for these violations was her assertion that she did not have a stable residence. This explanation did not constitute a lawful excuse for the violations.    Accordingly, defendant's admissions, without offering any accompanying evidence to justify the violations, were sufficient to sustain the trial court's finding that she violated her conditions of probation and that her failure to comply was without lawful excuse. Id. ("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.").
    Defendant next argues that the trial court should nonetheless have continued and/or modified her probation and her restitution payment schedule. A trial court's decision to revoke probation will not, however, be reversed absent a manifest abuse of discretion. Tennant, 141 N.C. App. at 526, 540 S.E.2d at 808. Based on the record, the trial court's decision to revoke defendant's probation rather than give her another opportunity to comply _ after, according to the probation officer, multiple prior violations _ was not manifestly unreasonable and thus does not constitute an abuse of discretion.

    Affirmed.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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