An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1661


Filed: 2 August 2005


         v.                        Cumberland County
                                No. 02CRS61060

    Appeal by defendant from judgment entered 7 September 2004 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 18 July 2005.

    Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State.

    Robert J. McAfee for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant James Ray Gerald pled guilty to common law robbery on 3 October 2002. The trial court sentenced defendant to 15-18 months imprisonment, which was suspended, and placed him on special probation for 36 months. The conditions of probation required, in pertinent part, that defendant (1) serve an active term of 30 days in the custody of the sheriff, (2) be placed on intensive probation for six months, (3) report for counseling and treatment, and (4) meet certain monetary conditions of probation.
    On or about 17 June 2004, defendant's probation officer filed a probation violation report, alleging that defendant (1) failed to report to his probation officer after 3 February 2004; (2) failedto make any payments on costs, restitution, attorney's fees and the community service fee provided in his 3 October 2002 judgment, and was $1,300 in arrears; (3) failed to complete anger management and had been removed from the program for failing to report to class; (4) moved from his residence without permission and failed to tell his probation officer where he was located; and (5) failed to provide proof that he had enrolled or completed the requisite substance abuse and alcohol treatment program. The violation report, along with a warrant for arrest, was served upon defendant on 2 September 2004.
    At the probation violation hearing, defendant was advised of his right to counsel and the possible punishment he could face if he were found to be in violation of his probationary conditions. When asked by the court what he “want[ed] to do about a lawyer,” defendant stated that he “want[ed] to represent [him]self.” Defendant then signed a waiver of assistance of counsel.
    Proceeding pro se, defendant admitted to two of the five alleged violations -- paragraphs number (2) and (5) in the violation report. Defendant also expressly admitted that the second violation was willful. After reviewing the alleged violations with defendant, the court determined that defendant did, in fact, admit to having violated the terms and conditions of his probation as alleged in paragraphs (2) and (5) of the violation report. In response, the prosecutor elected to proceed only on those two alleged violations. Defendant's probation officer recommended that defendant's probation be revoked, whereupon thecourt asked defendant if he wanted to be heard. When defendant began to explain why he moved from his residence as alleged in paragraph (4) of the violation report, the trial court intervened explaining that the court was only hearing arguments as to the two admitted violations. The court reminded defendant that the other alleged violations were no longer at issue.
    Defendant admitted making no payments toward the monetary conditions of his probation. After admitting that the violation was willful, defendant went on to explain to the court that he had a job making approximately $20-30 per day, and that he gave all of his wages to his girlfriend for their five children. In explanation of his failure to enroll and complete a substance abuse and alcohol treatment program, defendant explained that there was a discrepancy between what his probation officer and the program operators told him about the attendance policy. While defendant's probation officer told defendant that he could miss a class, the program operators told defendant that he could not.
    After reviewing the notes of defendant's former probation officer, the current probation officer noted that the records show that defendant had been previously brought to court for violating probation. The probation officer explained to the court that the records also revealed defendant had reported having difficulties in attending the required anger management program, and that the former officer had advised defendant to seek private counseling with a Mrs. Cardassi. The file reflected, however, that defendant “dropped out of sight,” failing to make any further contact withthe former probation officer. When defendant was located, he was working at a car wash in Carthage. He had been left undisturbed until he was arrested for non-support. Defendant's current probation officer reiterated his recommendation that defendant's probation be revoked.
    The trial court then determined that defendant, “ha[d] admitted the violations and willfulness thereof,” and revoked his probation and activated his suspended sentence. Defendant appeals.
    By his first two assignments of error on appeal, defendant argues that the trial court erred in entering judgment revoking his probation and activating his sentence, since there was not a sufficient factual basis offered in support of the claimed violations. We conclude, however, that there was plenary evidence to support the trial court's revocation of defendant's probation.
    It is well settled that probation is “'an act of grace by the State to one convicted of a crime.'” State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999)(quoting State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (1980)). “[A] proceeding to revoke probation is not bound by strict rules of evidence and an alleged violation of a probationary condition need not be proven beyond a reasonable doubt.” Id. “All that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation.” State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998). Although the State bears theburden of proof, this requirement is waived by a defendant's in- court admission of the willful or without-lawful-excuse violation as contained in the written probation violation report. State v. Williamson, 61 N.C. App. 531, 533, 301 S.E.2d 423, 425 (1983). Further, this Court has previously stated, “[a] sworn probation violation report constitute[s] competent evidence sufficient to support the order revoking [a defendant's] probation.” State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981).
    Once there is competent evidence before the court, which establishes a defendant's failure to comply with the terms of probation, “the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms.” State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002). “[O]therwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was wilful or without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). “If the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation.” Terry, 149 N.C. App. at 438, 562 S.E.2d at 540. This Court has long held, “[a]ny violation of a valid condition of probation is sufficient to revoke [a] defendant's probation.” Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253.
    In the instant case, defendant specifically admitted to having violated the terms and conditions of his probation, as alleged in paragraphs (2) and (5) of the 17 June 2004 violation report.Further, defendant admitted that the violation alleged in paragraph (2) of the report was willful. The defendant went on to explain to the court that he had elected to give his girlfriend all of his wages to support their five children. Defendant denied having willfully violated the terms and conditions of probation alleged in paragraph (5) of the violation report, explaining that he had been told by his probation officer that he could miss an alcohol and substance abuse class -- which was in direct conflict with the policy of the program operators. At the court's request, defendant's new probation officer consulted the notes of the previous probation officer to determine if there was any evidence to corroborate defendant's explanation as to his failure to enroll and/or complete an alcohol and substance abuse program. The new probation officer explained that the file notes showed defendant had complained of transportation problems in regard to attending an anger management program, but after the probation officer offered defendant an alternative to that program, defendant failed to take that option and disappeared.
    We note that once defendant admitted to the subject violations, the State was not required to offer any further evidence to prove that defendant violated those two conditions. Further, the trial court was not required to accept defendant's statement regarding the voluntary payment of other expenses in lieu of those that he was under court order to pay as a “lawful excuse” for the failure to comply with conditions of probation. See Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. Notably, defendant wasactually in jail for failure to pay court-ordered child support when he was served with the probation violation report, which makes questionable defendant's claims of supporting his children in lieu of making the monetary conditions of probation. Moreover, the court was not required to accept defendant's evidence as to his failure to comply with the condition of probation, as alleged in paragraph (5) of the violation report, as true. See id. We therefore conclude that the trial court did not abuse its discretion in finding that defendant willfully violated the terms and conditions of his probation, as alleged in paragraphs (2) and (5) of the 17 June 2004 probation violation report.
    Defendant also argues that his waiver of counsel was not knowing, intelligent and voluntary, in violation of N.C. Gen. Stat. § 15A-1242. Defendant contends that his “confusion over the legal standards applied [in] probation revocation hearings,” prevents his waiver of counsel from being knowing, intelligent and voluntary. We disagree.
     It is well settled that a criminal defendant enjoys the right to counsel, as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I of the North Carolina Constitution. State v. Montgomery, 138 N.C. App. 521, 524, 530 S.E.2d 66, 68 (2000). Inherent in that right is the right of an indigent defendant to appointed counsel. Id. A criminal defendant also has the right to represent himself without having the assistance of counsel forced upon him against his wishes. State v. Fulp, 355 N.C. 171, 174, 558 S.E.2d 156, 158 (2002). Before adefendant can waive counsel and represent himself, however, the trial court must conduct the inquiry required by N.C. Gen. Stat. § 15A-1242 to make certain that defendant's waiver of counsel is done knowingly, intelligently and voluntarily. State v. Evans, 153 N.C. App. 313, 315, 569 S.E.2d 673, 675 (2002).
    N.C. Gen. Stat. 15A-1242 provides,
            A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:

        (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;

        (2) Understands and appreciates the consequences of this decision; and

        (3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

N.C. Gen. Stat. § 15A-1242 (2003). While not definitive of the issue, this Court has held that the execution of a written waiver of counsel, regular in all respects, creates a presumption that the waiver was knowing, intelligent and voluntary. State v. Kinlock, 152 N.C. App. 84, 89-90, 566 S.E.2d 738, 741 (2002).
    The transcript shows that when defendant's case was called for hearing, the prosecutor informed the trial court that there were two matters on the docket for that day -- defendant and another case. The following exchange between the court and two defendants occurred:
        THE COURT: This is on Mr. Gerald, and this is on Mr. Davis. All right. Both of you folkshave a right to be represented by an attorney connected with the matter bringing you both before the Court, including a right to hire anybody you want to if you have the money to employ counsel. If you don't have the money to hire a lawyer, you have a right to request court-appointed counsel. That doesn't necessarily mean a free lawyer because if you are found to be in violation of probation or if you admit to being in violation of probation, counsel fees can be assessed against you.

        (The Court speaks with Mr. Davis about his probation violations.)

        THE COURT: Mr. Gerald, the judgment in your case reflects that you were convicted of common law robbery, sentence imposed is 15 months minimum, 18 months maximum. And you were placed on supervised probation for 36 months. Mr. Gerald, do you understand your rights relating to counsel?

        THE DEFENDANT: Yes, sir.

        THE COURT: All right. Do you understand the consequences -- the possible sentence that could be imposed --

        THE DEFENDANT: Yes, sir.

        THE COURT: -- if you elect to waive your right to counsel?

        THE DEFENDANT: Yes, sir.

        THE COURT: All right. What do you want to do about a lawyer?

        THE DEFENDANT: I mean, I want to represent myself.

        THE COURT: Do you want to waive or give up your right to court-appointed counsel?

        THE DEFENDANT: Yes, sir.

        THE COURT: You're ready to go forward today?

        THE DEFENDANT: (Nods head.)
        THE COURT: Okay. You'll need to sign a waiver.

Thereafter, defendant signed the waiver form, whereupon the court inquired as to whether defendant had received a copy of the violation report and whether he understood the allegations contained therein. Defendant answered affirmatively in each instance.
    Here, the signed waiver form created a presumption that defendant knowingly, intelligently and voluntarily waived assistance of counsel. Furthermore, the transcript of the proceedings supports that presumption. Indeed, the record evidence tends to show that the trial court wholly complied with the provisions of N.C. Gen. Stat. § 15A-1242 in that the court apprised defendant of his right to counsel, the nature of the proceedings, and reviewed defendant's sentence to which he would be exposed if his probation were revoked. The trial court did not proceed with the probation violation hearing until it had properly determined that defendant understood his right to counsel, which included his right to appointed counsel if he could not afford an attorney, or to represent himself if he wished; that defendant understood that he faced active jail time of 15-18 months imprisonment if his probation were revoked and his suspended sentence activated; and that he had been served with a copy of the probation violation report and understood the allegations against him. Though defendant contends that his waiver was not knowing, intelligent and voluntary because he did not understand the meaning of the word “willful” as it pertains to violating probation, we cannot agree. There is no statutory or case law that requires a trial judge to ascertain whether a defendant understands a substantive point of law before accepting his waiver of counsel. Since the trial court complied with N.C. Gen. Stat. § 15A-1242, defendant's third assignment of error is overruled.
    Having so concluded, we hold that the trial court did not err in revoking defendant's probation and activating his suspended sentence. However, we find the judgment and commitment improperly lists defendant as violating paragraphs 1-5 in the Violation Report Notice, when the transcript indicates defendant was only found guilty of violating paragraphs (2) and (5). To the extent that the judgment and commitment does not properly reflect the court's findings made in open court, this matter is remanded to the superior court for correction of this clerical error.
    Vacated and remanded for correction of clerical error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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