STATE OF NORTH CAROLINA
v. Cumberland County
No. 02CRS61060
JAMES RAY GERALD
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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