STATE OF NORTH CAROLINA
Cumberland County
v. Nos. 99CRS59947
99CRS59949-50
GREGORY DELTAROSA SPELL
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Donald R. Teeter, for the State.
Moshera H. Mohamed for defendant-appellant.
HUNTER, Judge.
Gregory Deltarosa Spell (defendant) pled guilty on 10 May
2001 to three counts of felonious child abuse. The court imposed
three terms of twenty-three to thirty-seven months to run
consecutively. The court suspended the sentences and placed
defendant on intensive probation. Defendant's probation officer
signed violation reports on 21 March 2002, 5 June 2002 and 9 July
2002. On 15 July 2002, defendant appeared for a probation
revocation hearing before Judge James Floyd Ammons, Jr. Judge
Ammons continued the hearing for two weeks. Defendant failed to
appear for this hearing. On 21 January 2003, defendant appeared
for a probation revocation hearing before Judge Ola M. Lewis. At
the conclusion of the proceeding, Judge Lewis ordered activation ofdefendant's sentences. On 18 June 2003, defendant filed a motion
for appropriate relief. Judge E. Lynn Johnson reviewed the file
and the transcripts of prior hearings, and on 8 October 2003
entered an order concluding that while defendant admitted to the
violations, the court failed to make findings that any violation
had occurred, as required by N.C. Gen. Stat. § 15A-1345.
Consequently Judge Johnson awarded defendant a new probation
revocation hearing. Judge Ammons conducted the probation
revocation hearing on 18 November 2003. Defendant appeared before
the court and admitted that he committed the violations alleged in
the reports. Defendant offered reasons and explanations for
committing the violations. Judge Ammons found and concluded that
defendant willfully and without lawful excuse committed the
violations. He entered judgment revoking probation and activating
the sentences. He ordered that the sentences run concurrently.
By his sole assignment of error, defendant contends that the
court erred in finding that he willfully violated his probation.
He argues the evidence shows that he made a good faith effort to
comply with the monetary conditions of probation.
Probation is an act of grace by the State to one convicted of
a crime. State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723,
725, disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (1980). A
probationer carries the keys to his freedom in his willingness to
comply with the court's sentence. State v. Robinson, 248 N.C.
282, 285, 103 S.E.2d 376, 379 (1958). To revoke probation:
All that is required . . . is that the
evidence be such as to reasonably satisfy thejudge 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).
The defendant has the burden of showing excuse or lack of
willfulness and if the defendant fails to carry this burden,
evidence of failure to comply is sufficient to support a finding
that the violation was willful or without lawful excuse. State v.
Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). The
judge's finding of a willful violation that is supported by
competent evidence will not be disturbed on appeal absent a showing
of manifest abuse of discretion. State v. Guffey, 253 N.C. 43, 45,
116 S.E.2d 148, 150 (1960).
The court found defendant willfully committed the following
violations: (1) he failed to schedule or complete any community
service hours; (2) he failed to pay his court indebtedness, having
fallen in arrears in the amount of $80.00; (3) he failed to pay the
monthly probation supervision fee, having fallen in arrears in the
amount of $130.00; and (4) he failed to keep scheduled appointments
with TASC and failed to follow TASC's recommendation for substance
abuse treatment. At the hearing, defendant stated that he waited
too late to sign up for community service. He further acknowledged
that he was in arrears in the monetary obligations. He stated that
he would allow the arrearage to accrue to $300.00 before he would
pay. He also stated that he refused to attend TASC treatment
sessions and to submit to urinalysis for the presence of controlledsubstances because of a counselor's impatience with defendant in
producing a urine sample. After being assigned to mental health
treatment, defendant told the instructor that he was there playing
a game.
The foregoing statements of defendant demonstrate that he
willfully and without lawful excuse violated the conditions of
probation. The court's finding of a willful violation is supported
by evidence and the court did not abuse its discretion by revoking
probation and activating the sentences.
The judgments are
Affirmed.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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