STATE OF NORTH CAROLINA,
No. 02 CRS 1261
ROBERT LEE LONGS, JR. 02 CRS 50910-11
Attorney General Roy Cooper, by Assistant Attorney General
Yvonne B. Ricci, for the State.
Mercedes O. Chut for defendant-appellant.
On 24 February 2003, defendant, Robert Lee Longs, Jr., pled
guilty to sale/delivery of cocaine (02 CRS 1261), maintaining a
dwelling for the purposes of keeping and selling a controlled
substance (02 CRS 1261), and two counts of assault on a government
official (02 CRS 50910, 02 CRS 50911).
The trial judge entered two separate judgments suspending defendant's sentences and placing him on probation. The first judgment was for the charge of sale/delivery of cocaine. The judge placed defendant on supervised probation for thirty-six months, the first six of which were for intensive probation, ordered defendant pay restitution in the amount of $2,027.20, imposed regular conditions of probation, and imposed special conditions ofprobation. The special conditions of probation included that defendant: (1) submit to warrantless searches; (2) not use, possess, or control any illegal drug or controlled substance unless prescribed by a licensed physician; (3) supply a breath, urine, and blood specimen when instructed to do so by his probation officer; (4) report for an initial evaluation at a drug treatment facility; (5) not possess or consume alcohol or go anywhere alcohol is sold except a grocery store; and (6) obtain and maintain employment of at least thirty-five hours per week. The second judgment suspending sentence encompassed the charges of maintaining a dwelling to keep controlled substances, as well as the two counts of assault on a government officer. The judge placed defendant on supervised probation for thirty-six months, and ordered defendant's compliance with the regular conditions of probation, as well as the special conditions of probation imposed in the first judgment. On 18 January 2004, the trial court modified the terms of both judgments to include a requirement that defendant attend and successfully complete the drug treatment program offered by the Criminal Justice Partnership Program (CJPP).
Defendant's probation and parole officer, Kelly Cartrette prepared a probation violation report on 11 March 2004. The report alleged the following violations: (1) defendant tested positive for marijuana on 16 February 2004; (2) defendant was $320.00 in arrears in the payment of monies due; and (3) defendant had been in possession of a controlled substance, was subsequently charged with possession with intent to sell and deliver cocaine, withmaintaining a vehicle to keep controlled substance, and with simple possession of a schedule VI controlled substance.
Officer Cartrette prepared two additional probation violation reports on defendant on 24 May 2004. The reports alleged these additional violations of defendant's probation: (1) defendant admitted to marijuana and cocaine use within the past three weeks and (2) defendant was discharged from the CJPP for non-compliance. The trial court held a hearing on the alleged probation violations. Following the hearing, the trial court found defendant to be in willful and knowing violation of the terms and conditions of his probation. The trial court revoked defendant's probation with respect to all charges and activated the suspended sentences. Defendant appeals.
In defendant's first argument he contends the trial court erred by failing to make written findings of fact on the two judgments and commitments revoking his probation and activating his sentence. Defendant contends the oral findings of fact made by the trial judge cannot satisfy the requirements of N.C. Gen. Stat. § 15A-1345(e) as interpreted by this Court in State v. Williamson, 61 N.C. App. 531, 301 S.E.2d 423 (1983).
N.C. Gen. Stat. § 15A-1345(e) (2004) provides in pertinent part that [b]efore revoking or extending probation, the court must, unless the probationer waives the hearing, . . . make findings to support the decision and a summary record of the proceedings. In order to comport with the minimum requirements of due process in a final probation revocation hearing, as well asN.C. Gen. Stat. § 15A-1345(e), there must be a written judgment by the judge which shall contain (a) findings of fact as to the evidence relied on, [and] (b) reasons for revoking probation. Williamson, 61 N.C. App. at 533-34, 301 S.E.2d at 425 (emphasis added). Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Thus, we are bound by the holding in Williamson, which requires the trial court's findings in support of its revocation of probation to be in writing.
However, reviewing the record and transcript of the probation violation hearing, it is clear that the absence of findings on the judgment and commitment forms was a clerical error. See State v. Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18 (2003) (defining a clerical error as an error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination) (citations and internal quotation marks omitted). See also State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349 (2000)(determining there was a clerical error where the findings of aggravating and mitigating factors on the judgment form were inconsistent with the trial court's actual findings); State v. Westbrooks, 345 N.C. 43, 54-55, 478 S.E.2d 483, 490 (1996)(reviewing the record and transcript to determine whether a clerical error existed); State v.Thomas, 153 N.C. App. 326, 341, 570 S.E.2d 142, 151 (2002)(finding a clerical error existed where the trial court's actual findings were inconsistent with the AOC form).
Based on the transcript it is apparent the trial court made specific findings of fact concerning the violations, and concluded defendant was in willful violation of his probation. We remand this matter to the trial court for correction of this clerical error.
In defendant's second argument he contends the trial court erred in revoking his probation and activating his sentence for the charges of maintaining a dwelling and two counts of assault on a government officer. He asserts the probationary judgment suspending his sentence did not impose any special condition of probation prohibiting defendant from using illegal drugs. We disagree.
A review of the original probation judgments in these cases clearly shows the trial incorporated the conditions of probation set forth in the judgment for the sale/delivery of cocaine charge into the judgment for maintaining a dwelling and assault on a government officer. The judgment contains the following language: 5. The defendant shall comply with the conditions set forth in file number 02 CRS 1261-51. The judgment suspending sentence in file number O2 CRS 1261-51 for the offense of sell/delivery of cocaine includes a special condition of probation that defendant not use, possess, or control any illegal drug or controlledsubstance unless prescribed by a licensed physician. This argument is without merit.
In defendant's third argument he contends the trial court erred in revoking his probation because the record does not contain sufficient evidence for the trial court to find that he willfully violated a condition of probation.
In the instant case, the trial court made findings in support of its decision to revoke defendant's probation, which were contained in the transcript of the hearing. As we discussed above, the failure to reduce those findings to writing was a clerical error. Therefore, we rely on the trial court's findings of fact and conclusions of law contained in the transcript in reviewing this argument.
Since probation revocation hearings are not formal criminal proceedings, the State is not required to prove the defendant violated a condition of probation beyond a reasonable doubt. State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000). 'All that is required is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended.' Id. (quoting State v. Robinson, 248 N.C. 282, 285-86, 103 S.E.2d 376, 379 (1958)).
The trial court found defendant had violated two conditions of his probation: (1) he engaged in the prohibited use of a controlled substance and (2) he failed to attend and complete the CJPP. At the revocation hearing, defendant's probation officer testifieddefendant tested positive for marijuana use. Furthermore, defendant admitted at the hearing that he tested positive and had used marijuana while on probation. In addition, defendant did not present any evidence of a lawful excuse for testing positive for marijuana. See id. at 527, 540 S.E.2d at 808 (holding the trial court may not activate a suspended sentence for a defendant's failure to comply with a term of probation unless his failure to comply is willful or without lawful excuse).
Based upon the evidence presented at the revocation hearing, as well as defendant's own admission, we conclude there was sufficient evidence to support the trial court's finding that defendant knowingly and willfully violated his probation. As such, it was within the trial court's discretion to revoke defendant's probation. Id. Since the breach of any single valid condition upon which the sentence was suspended will support an order activating the sentence[,] State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973), we need not determine whether there was sufficient evidence that defendant failed to attend and complete the CJPP. This argument is without merit.
In defendant's fourth argument he contends the trial court erred in revoking his probation where the violation reports were inadequate to give notice of a violation.
Defendant concedes in his reply brief that this argument is without merit following an amendment to the record on appeal, therefore we need not address it. In defendant's fifth argument he contends the trial court erred in revoking his probation where it relied on impermissible hearsay evidence from his probation officer concerning his participation in the CJPP.
Since the breach of any single valid condition upon which the sentence was suspended will support an order activating the sentence[,] id., and we determined there was sufficient evidence that defendant violated the condition of probation prohibiting illegal drug use, we need not reach this argument.
In defendant's sixth and final argument he contends the trial court erred in considering evidence of his pending criminal charges when revoking his probation. We disagree.
When a criminal charge is pending, that charge cannot be the trial court's sole basis for revoking a defendant's probation and activating their suspended sentence. State v. Monroe, 83 N.C. App. 143, 145, 349 S.E.2d 315, 317 (1986). However, the trial court made no findings concerning defendant's pending criminal charges. Further, since any single violation is sufficient grounds to revoke defendant's probation, Braswell, 283 N.C. at 337, 196 S.E.2d at 188, defendant's argument that the court used his pending criminal charges to revoke probation is without merit.
For the reasons discussed herein, we affirm the trial court's judgment revoking defendant's probation and activating the suspended sentence, and remand this matter to the trial court for correction of its clerical error.
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR IN THE JUDGMENT. Judges HUDSON and JACKSON concur.
Report per Rule 30(e).
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