State v Kemp, (04-1664) 08/02/2005

Appeal by defendant from judgments entered 17 May 2004 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 18 July 2005.

Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State.

William D. Spence for defendant-appellant.

MARTIN, Chief Judge.

     On 1 March 2000, defendant pled guilty, pursuant to a plea agreement, to simple assault and no operator's license and was sentenced to forty-five days imprisonment. Defendant's sentence was suspended and he was placed on supervised probation for twenty- four months. On 8 December 2003, defendant pled no contest, pursuant to a plea agreement, to two counts of felony worthless check and was sentenced to a term of six to eight months imprisonment. In accordance with the terms of the plea agreement, defendant's sentence was suspended, he was ordered to make restitution, and he was placed on probation for thirty-six months.
    On 10 December 2003, a probation violation report was filedalleging that defendant had failed to comply with the terms of his probation for simple assault and no operator's license. Specifically, the report alleged that defendant: had failed to report to his probation officer; was in arrears on his monetary obligations; and was convicted on two counts of writing worthless checks. On 5 April 2004, a second probation violation report was filed alleging that defendant had failed to comply with the terms of his probation for writing worthless checks. Specifically, the report alleged that defendant had failed to make restitution as ordered, and had absconded.
    On 17 May 2004, a probation violation hearing was held in Craven County Superior Court. Defendant denied the allegations that he failed to report and absconded, but admitted that he had been convicted of writing worthless checks and that he was in arrears on his monetary obligations. Defendant testified that he had been treated for a mental condition and was placed on medication that affected his memory. He testified that for a period of time he was “very confused, disoriented.” Defendant denied willfully trying to violate his probation by hiding from his probation officer. However, the trial court found that defendant willfully violated the terms of his probation. Accordingly, the trial court revoked defendant's probation and activated his suspended sentences. Defendant appeals.
     Defendant first argues that the trial court abused its discretion by revoking his probation because all the evidence demonstrated that he was unable to comply with his probation due tomental illness and the medications he was taking.
     After careful review of the record, briefs and contentions of the parties, we find no error. This Court has stated:
    Any violation of a valid condition of probation is sufficient to revoke defendant's probation. All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse. The burden is on defendant to present competent evidence of his inability to comply with the conditions of probation; and that otherwise, 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)(citations omitted).
     In the case sub judice, it was alleged that defendant violated his probation by failing to comply with the monetary obligations of his probation. The defendant has the burden of showing excuse or lack of willfulness, and if the defendant fails to carry this burden, evidence of failure to comply is sufficient to support a finding that the violation was willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). Defendant admitted that he did not comply with this term of probation, and no evidence was offered of a lawful excuse. Defendant's evidence of lawful excuse was limited to explaining why he failed to report. Accordingly, we conclude it was within the trial court's discretion to revoke defendant's probation.
     Because there was sufficient grounds to revoke defendant's probation, we need not address defendant's contention with respect to the remaining probation violations found by the trial court.
     Defendant next argues the trial court failed to makesufficient findings of fact to support the probation revocation. Defendant contends that the trial court's findings do not disclose that the trial court considered his evidence of mental illness and treatment. We disagree.
    The trial court found, based on the record as well as the evidence presented by the parties, that defendant had violated the terms of his probation as alleged in the probation violation report. When the court prefaces its findings with words such as “based upon the evidence presented,” the court sufficiently shows that it considered all the evidence, including evidence presented by the defendant. See State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983). The court is not required to make specific findings of fact regarding each of the defendant's allegations. Id. This Court has stated:
        Although the Judge could have been more explicit in the findings by stating that he had considered and evaluated defendant's evidence . . . and found it insufficient to justify breach of the probation condition, we hold that his failure to do so does not constitute an abuse of discretion. It would not be reasonable to require that a judge make specific findings of fact on each of defendant's allegations tending to justify his breach of conditions.

Id. Accordingly, we find no error.
    No error .
    Judges HUNTER and STEELMAN concur.
     Report per Rule 30(e).

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