State v Staton, (04-1408) 08/16/2005

Appeal by defendant from judgments entered 19 February 2004 by Judge E. Penn Dameron in Buncombe County Superior Court. Heard in the Court of Appeals 15 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General Gary A. Scarzafava, for the State.

Eric A. Bach, for defendant.

LEVINSON, Judge.

     William M. Staton (defendant) appeals from revocation of probation and activation of sentences imposed on six counts of forgery and uttering and one count of felonious larceny. The violation reports variously charged that defendant violated conditions of probation by (1) testing positive for the presence of cocaine on twelve different dates and for the presence of marijuana on one of those dates; (2) failing to keep scheduled appointments with his probation officer on fourteen different dates; (3) failing to abide by curfew on three different dates; (4) failing to pay restitution; and (5) failing to pay supervision fees.
    At the call of the case for hearing, defendant admitted tocommission of all of the violations except the curfew violations. Defendant noted that two of the violations of curfew occurred after the six-month term of probation had expired. Defendant testified that on the remaining occasion, he left his residence after curfew to get something for his pregnant girlfriend. He further testified that he had difficulty finding employment, and that when he did find employment, the employment would be terminated after his probation officer contacted the employer. After his girlfriend became pregnant, he was the only one in the household working so he fell behind in his monetary payments to the court. He attributed the positive drug tests to a longstanding addiction to drugs.
    After hearing arguments of counsel and defendant's own personal appeal for leniency, the court made the following statement:
        All right, sir. In this case, Mr. Staton, as I read the file, it looks like it started off with thirty charges or thereabouts. They were consolidated into seven for sentencing, and Judge Downs made one of those active, as I read the file, and suspended the other six. Obviously what he was trying to do was, because he felt there was some active sentence that was justified, give you some time and give you enough time still hanging over you after you got out so that you would make this restitution and make an effort to comply with the conditions of your probation, and I don't see that you've made any effort. And I can't put myself in his position, but if I had imposed the sentence that he did when he was sitting here, I think that he would say that there's not anything that you've done that justified his hope and faith in giving you that suspended sentence, and I don't see it, either, so I'm going to revoke your probation. As a condition of any work release or early release I'm going to require that you support your dependents and that you make therestitution that you're required to make, but I am going to revoke your probation and activate your sentence.

The court also signed multiple judgments, each of which consisted of a preprinted order completed by the court as follows:

FINDINGS

         After considering the record contained in the files numbered above, together with the evidence presented by the parties and the statements made on behalf of the State and the defendant, the Court finds:

        1.    The defendant is charged with having violated specified conditions of the defendant's probation as alleged in the:
        .    a. Violation Report(s) on file herein,
            which is incorporated by reference.
            . . . .

        2.    Upon due notice or waiver of notice, (check a. or b.)
        .    a. a hearing was held before the Court and, by the evidence presented, the Court is reasonably satisfied in its discretion that the defendant violated each of the conditions of the defendant's probation as set forth below.
            . . . .

        3.    The condition(s) violated and the facts of each violation are as set forth (check a. and/or b.)
        .     a. in paragraph(s) in the Violation Report or Notice dated .
             b. on the attached sheet.

        4.    Any allegation of a violation stated in the Violation Report, Notice, or otherwise, which is not set forth above is dismissed.

        5.    Each of the conditions violated as set forth above is valid; the defendant violated each condition willfully and without valid excuse;and each violation occurred at a time prior to the expiration or termination of the period of the defendant's probation.
        .    Each violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence.

        6.    The Judgment for attorney's fees previously entered in this case shall be docketed, if it has not already been docketed.

    Defendant contends the court erred by failing to make adequate findings of fact to support its judgments. Defendant argues the court failed to make findings regarding specific violations committed by defendant. He also argues the court failed to make findings as to whether the violations were willful and without lawful excuse.
    “Before revoking or extending probation, the court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings.” N.C.G.S. § 15A-1345(e) (2003). The critical inquiry at the hearing is whether the probationer has willfully “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). Whether or not a probationer has willfully and without lawful excuse violated valid terms of probation is a question of fact to be decided by the presiding judge in the exercise of his sound discretion. State v. Hewett, 270 N.C. 348, 352, 154 S.E.2d 476, 479 (1967). The trial court must make findings giving someindication that it considered the evidence. State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). A written judgment containing findings of fact indicating the court's reasons for revoking probation is a minimum requirement of due process. State v. Williamson, 61 N.C. App. 531, 533-34, 301 S.E.2d 423, 425 (1983).
    Here, the orders revoking the suspended sentences do not include a finding that defendant violated any one or more conditions of probation. The line immediately following the word “paragraph(s)” in finding number three is left blank, as well as the blank referencing a dated violation report. Even though the box associated with finding of fact number 3a is checked, the failure to identify a specific violation is fatal; this is because finding of fact number four states that any allegation of a violation “not set forth above is dismissed.” This is an oversight which may be remedied on remand, something correctly conceded by counsel for defendant.
    Reversed and remanded.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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