State v Graham, (04-784) 04/05/2005

Appeal by defendant from judgment entered 11 December 2003 by Judge Henry E. Frye, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 14 February 2005.

Attorney General Roy Cooper, by Assistant Attorney General Barbara A. Shaw, for the State.

Marilyn G. Ozer for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was indicted as an habitual felon on one count of felony possession with intent to sell and deliver marijuana and two counts of possession with intent to sell and deliver cocaine. On 7 December 2000, defendant pled guilty to possession with intent to sell and deliver cocaine and to his status as a habitual felon pursuant to a plea agreement with the State. The trial court entered judgment imposing a sentence of sixty to eighty-one months of imprisonment, which was suspended and defendant was placed on supervised probation for thirty-six months. As a special term of his probation, defendant was required to serve an active term of six months in the custody of the sheriff.
    On 3 September 2003, defendant's probation officer, MonicaStewart (Stewart), issued a violation report alleging five willful violations of defendant's probation including: (1) defendant failed to report to a class on violent crimes on 19 May 2003, (2) defendant admitted to using marijuana on 5 February 2002, 23 October 2002 and 27 December 2002, (3) defendant failed to gain successful employment, (4) defendant was arrested on 31 May 2004 for assault on a female, and (5) defendant was arrested on 11 June 2003 for possession with intent to manufacture, sell, and deliver a Schedule I controlled substance. The State declined to proceed on the fourth violation.
    At the hearing on 11 December 2003, Stewart testified that she and her supervisor, Jay Waller, instructed defendant to report to the Violent Crimes Task Force Notification on 19 May 2002. Stewart attended the entire meeting but defendant never reported. According to Stewart's records, defendant tested positive after a drug test for marijuana use on 5 February 2002, admitted to using marijuana on 23 October 2002 and either tested positive or admitted to use of marijuana on 27 December 2002. Defendant was employed by Corza, a metal fabrication company, when Stewart first started working with him but he stopped working there sometime after 26 March 2002.
    According to defendant, since he did not have violent crime charges, neither he nor Stewart thought it was necessary that he attend the violent crimes class. He denied using marijuana, claiming that on one occasion there was not a large enough sample to test and on another occasion, it was most likely second-handsmoke that made him test positive. He also testified that he stopped working sometime after 28 January 2003 because he had been shot and was unable to work due to this injury. Finally, defendant claimed he was innocent of the pending charges.
    After hearing the evidence the court made findings of fact and concluded defendant had violated the conditions of probation. The court revoked defendant's probation and activated his suspended sentence.

    First, defendant argues that the trial court lacked jurisdiction to revoke his probation because the hearing was not held until after his probationary period expired. We disagree.
    N.C. Gen. Stat. . 15A-1344 provides in pertinent part:
    The probation period shall be tolled if the probationer shall have pending against him criminal charges in any court of competent jurisdiction, which, upon conviction, could result in revocation proceedings against him for violation of the terms of this probation. . . . If a convicted defendant violates a condition of probation at any time prior to the expiration or termination of the period of probation, the court . . . may revoke the probation and activate the suspended sentence imposed at the time of initial sentencing.

N.C. Gen. Stat. § 15A-1344(d) (2003). Black's Law Dictionary defines “toll” as “to stop the running of; to abate.” Black's Law Dictionary 1495 (7^th ed. 1999). Therefore, the statute provides that the probation period is automatically suspended when new criminal charges are brought against a convicted defendant.
    Defendant's thirty-six month probation expired on 7 December 2003. However, on 11 June 2003, before the expiration of hisprobation, defendant's arrest on the pending drug charges automatically tolled his probation period. Defendant admitted at the hearing that the charges were still pending. Defendant's 11 June arrest tolled his probationary period and the court, pursuant to N.C. Gen. Stat. § 15A-1344(d), was vested with jurisdiction to activate defendant's suspended sentence.

    Defendant next contends the trial court erred in using the pending criminal charge against him as the sole basis for his probation revocation. While we agree that when a criminal charge is pending “then that charge cannot be the single basis for revoking probation and activating a suspended sentence,” State v. Monroe, 83 N.C. App. 143, 145, 349 S.E.2d 315, 317 (1986), cert. denied, 322 N.C. 484, 370 S.E.2d 232 (1988), it is also true that any single violation is sufficient grounds to revoke defendant's probation. State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). Here, the court found violation of four separate conditions of defendant's probation. Any single violation was sufficient to revoke probation and defendant's argument that the court used only his criminal charge to revoke probation is without merit.
    In addition, defendant claims that the revocation of his probation was not supported by the evidence or by the findings of fact. To revoke a defendant's probation, the evidence must only “be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a validcondition 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). There was clearly sufficient evidence presented at the hearing on each of the four violations to reasonably satisfy the court that defendant had violated the conditions of his probation.
    Defendant also claims that the findings of fact, as submitted on the form for Judgment and Commitment, AOC-CR-607, were not specific and definite as to the violation of each condition and were therefore inadequate. The form was complete in every detail and stated, albeit mostly in preprinted text, (1) that the record together with the evidence presented had been considered, (2) that defendant was charged with violation of probation conditions as alleged in the Violation Report, which was incorporated by reference, (3) that the conditions were violated as set forth in paragraphs 1, 2, 3, 4, and 5 of the report dated 23 September 2003, and (4) that each violation was sufficient to revoke probation. We conclude this form, together with the Violation Report which was incorporated by reference, contained sufficient findings of fact to support revocation of defendant's probation.

    Defendant assigns as error the trial court's conclusion that defendant violated the conditions of probation as it relates to employment on the grounds that it was not supported by the findings of fact. “[W]here a defendant has presented competent evidence of his inability to comply with the terms of his probation, he isentitled to have that evidence considered and evaluated before the trial court can properly order revocation.” State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 834 (1985). However, “the burden is on the defendant to present competent evidence of his inability to comply; and that otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was willful or without lawful excuse.” Id. at 567, 328 S.E.2d at 835. Defendant failed to meet this requirement.
    Defendant testified that he was in the hospital for approximately two and a half months and that after his release, he attended physical therapy to learn to walk again. Although defendant claims he called Stewart to tell her he was unable to report to her, Stewart made no mention of this in her testimony. According to Stewart, defendant informed her he was going to attend truck driving school even though she knew this was unlikely since he did not have a license. After that conversation, defendant never verified to her that he had employment nor reported any reason why he was unable to work.
    Defendant failed to meet his burden to prove he was unable to comply with the condition of employment. Furthermore, the findings of fact stated that the court had considered the record, along with the evidence presented. The assignment of error is overruled.

Defendant next argues the court erred in finding defendant in violation of probation for not attending the violence session since it was not a written condition of his probation and a modificationhad not been entered. The conditions of probation required defendant to “[r]eport as directed by the Court or the probation officer to the officer at reasonable times and places” and to “abide by all rules and recommendations setforth [sic] by probation.” Defendant failed to abide by the instructions given to him by both his probation officer and her supervisor to attend the class. The trial court did not err in finding defendant violated this condition of probation.

    Finally, defendant alleges the trial court erred in concluding defendant violated his probation by using drugs when the court failed to consider defendant's evidence refuting his drug use. In determining whether a defendant has violated probation, there must be enough evidence to reasonably satisfy the judge that defendant has willfully violated a condition of his probation, Hewett, 270 N.C. at 353, 154 S.E.2d at 480; however, there may be evidence which supports a different conclusion. Here, there was sufficient evidence that defendant used drugs on three separate occasions. The assignment of error is overruled.
    The judgment revoking defendant's probation and activating the suspended sentence is affirmed.
    Affirmed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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