STATE OF NORTH CAROLINA
v. Pitt County
No. 04 CRS 7568
MOSES MULLINS,
Defendant.
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.
Affirmed.
Judges MCGEE and LEVINSON concur.
Report per Rule 30(e).
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