An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-1584


Filed: 6 September 2005


         v.                        Pitt County
                                No. 04 CRS 7568

    Appeal by defendant from judgment entered 28 June 2004 by Judge W. Russell Duke, Jr. in the Superior Court in Pitt County. Heard in the Court of Appeals 22 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse, for the State.

    The Kelly Law Firm, by George E. Kelly, III, for defendant- appellant.

    HUDSON, Judge.

    Defendant pled guilty to obtaining property by false pretenses and was sentenced on 11 March 2003 to a minimum of five months and a maximum of six months in prison. The sentence was suspended and defendant was placed on supervised probation for 36 months. As a condition of probation he was ordered to pay the sum of $10,788.90 as restitution. A violation report was filed on 27 May 2004 alleging that defendant violated conditions of probation by (1) falling behind in the amount of $1,760 on the restitution as a condition of probation and (2) being arrested on another criminal charge.
    Defendant and his counsel appeared for a hearing on theviolation report on 28 June 2004. Defendant, through counsel, admitted that he committed the first violation. Counsel stated to the court that defendant had been incarcerated in the Lenoir County Jail on other pending charges, and consequently, had been unable to work to earn money in order to make payments. Defendant spoke to the court and promised to make the payments if the court continued probation. Notwithstanding defendant's plea for leniency, the court found a willful violation of probation and activated the sentence. Defendant appeals.
    Defendant contends that the court's finding that he willfully and without lawful excuse violated probation is not supported by evidence in the record. He also contends that the court erred in revoking probation and activating the sentence because there was substantial evidence to support modification or continuance of probation.
     To revoke probation “[a]ll 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 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 judge's finding of a willful violation, if 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).
    “If, upon a proceeding to revoke probation or a suspendedsentence, a defendant wishes to rely upon his inability to make payments as required by its terms, he should offer evidence of his inability for consideration by the judge. Otherwise, evidence establishing that defendant has failed to make payments as required by the judgment may justify a finding by the judge that defendant's failure to comply was willful or was without lawful excuse.” State v. Young, 21 N.C. App. 316, 320-21, 204 S.E.2d 185, 187 (1974). The defendant may not rely on unsworn statements of counsel, but must present evidence, in order to carry his burden of showing lawful excuse or lack of willfulness. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985).
    Here, defendant presented no evidence other than his statement of counsel that he had been incarcerated and therefore had been unable to make payments. He therefore failed to carry his burden of showing lawful excuse or lack of willfulness. We find no abuse of discretion by the court in activating the sentence.
    Judges MCGEE and LEVINSON concur.
    Report per Rule 30(e).

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