An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1185


Filed: 15 November 2005


    v.                            Buncombe County
                                Nos. 00 CRS 1097
DEBRA SHELTON JONES,                    00 CRS 51649

    Appeal by defendant from judgments entered 18 December 2003 by Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in the Court of Appeals 26 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Christine Goebel, for the State.

    K.E. Krispen Culbertson for defendant-appellant.

    GEER, Judge.

    Defendant Debra Shelton Jones appeals from the judgment revoking her probation. Her sole argument on appeal is that the trial court erred in finding her mentally competent to proceed with the probation violation hearing. Because the record contains evidence supporting the trial court's determination that defendant was competent, we affirm.


    On 2 February 2000, defendant was cited for driving with a revoked licence, driving without insurance, and driving while impaired. She was initially tried in district court and, on 3 October 2001, the court entered judgment convicting defendant of driving while her license was revoked, suspended the 45-daysentence, and placed defendant on 36-months probation. The next day, the district court entered judgment convicting defendant of driving while impaired, suspended the two-year sentence, and placed defendant on 36-months probation, with defendant ordered to serve an active sentence of 30 days.
    Defendant's probation officer subsequently filed a violation report in each case alleging that defendant failed to: (1) report to her probation officer; (2) comply with monetary requirements; (3) provide proof of employment; and (4) provide proof of substance abuse assessment or treatment. On 7 November 2003, the district court entered judgments in both cases, revoking defendant's probation. Defendant appealed to the superior court for a trial de novo.
    Prior to the probation violation hearing, defendant's attorney informed the court that defendant displayed a limited understanding that the revocation of her probation would restrain her liberty and requested an order for an evaluation of defendant. The trial court entered an "Order Appointing Local Certified Forensic Examiner" to determine if defendant had the mental capacity to proceed with the probation violation hearing.
    Staff Psychologist Barbara J. Bailey of the Blue Ridge Center examined defendant at the detention facility and submitted her report to the trial court. In her report, Bailey concluded that "Ms. Jones will have difficulty participating in her defense, due to her mental condition and impaired memory" and recommended that defendant "be assessed further for medical and/or neurologicalproblems."
    On 18 December 2003, the trial court held a competency hearing. After hearing testimony from Bailey and defendant's probation officer, the trial court determined defendant was competent to proceed. Thereafter, defendant waived reading of the violation report and admitted the allegations contained therein. The trial court found defendant to be in violation of her probation and activated her sentences. Defendant appeals.

    Defendant contends there was insufficient evidence from which the court could conclude she was competent to proceed. The test to determine a defendant's mental capacity to proceed to trial is found in N.C. Gen. Stat. § 15A-1001(a) (2003), which states:
        No person may be tried, convicted, sentenced, or punished for a crime when by reason of mental illness or defect [the person] is unable to understand the nature and object of the proceedings . . ., to comprehend [the] situation in reference to the proceedings, or to assist in his [or her] defense in a rational or reasonable manner.

A defendant may raise the issue of competency by motion under N.C. Gen. Stat. § 15A-1002(a) (2003). The defendant bears the burden of proof on that issue. State v. Baker, 312 N.C. 34, 43, 320 S.E.2d 670, 677 (1984).
    When the capacity of a defendant to proceed is questioned, the trial court is required to conduct a hearing. N.C. Gen. Stat. § 15A-1002(b). A trial court's determination on the issue of competency is conclusive on appeal if supported by the evidence. State v. Willard, 292 N.C. 567, 575, 234 S.E.2d 587, 592 (1977). "Although the better practice is for the trial court to make findings and conclusions when ruling on a motion under G.S. 15A-1002(b), it is not error for the trial court to fail to do so where the evidence would have compelled the ruling made." State v. Gates, 65 N.C. App. 277, 283, 309 S.E.2d 498, 502 (1983).
    Pursuant to defendant's motion in the present case, on 18 December 2003, the trial court conducted a hearing prior to the probation violation hearing to determine defendant's capacity to proceed. At the hearing, defendant presented the testimony of psychologist Bailey while the State presented the testimony of defendant's probation officer, Lori Owenby. Our Supreme Court has held that lay witnesses may testify on the issue of competency and it is error for a trial court to disregard such testimony. State v. Silvers, 323 N.C. 646, 654, 374 S.E.2d 858, 864 (1989).
    Bailey testified that she evaluated defendant in November 2003; that defendant "didn't seem to understand what revoking probation meant"; and that defendant "appeared to be perhaps in the mild [mentally retarded] to borderline range of intelligence." She ultimately testified as follows:
    Q.    And you weren't able to formulate an opinion in this case, were you, other than she needs further evaluation?

    A.    Other than she needed further evaluation, yes.

    . . . .

    Q.    You were able to surmise that she might potentially be mildly mentally retarded or borderline?

    A.    Yes, based on her presentation thatday; but, again, not having any other information, I would think she would need a full evaluation to determine that.

Defendant presented no evidence other than the testimony of Bailey.
    Defendant's probation officer, Lori Owenby, testified that she was first assigned to defendant in May 2003. Their first meeting lasted a half-hour, and Owenby felt that defendant understood what was going on and what was expected of her. Between that first meeting and the date of the competency hearing, Owenby met with defendant seven or eight times. Owenby testified that at each appointment, defendant responded appropriately to Owenby's questions, and defendant "would tell me that she would make an attempt to do whatever [defendant] needed to do to be in compliance with her probation." Owenby also testified that defendant appeared "to understand what was going on" at her probation violation hearing in district court.
    Owenby's testimony thus provides competent evidence to support the trial court's determination. Given Bailey's unwillingness to express an opinion regarding defendant's competency, we hold that the trial court did not err in determining that defendant was mentally competent to proceed, and any error in failing to make findings of fact and conclusions of law was harmless.


    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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