State v Singletary, (04-1700) 10/18/2005

Appeal by Defendant from judgment entered 29 March 2004 by Judge Catherine C. Eagles in Superior Court, Forsyth County. Heard in the Court of Appeals 3 October 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Kathryn Jones Cooper, for the State.

    Moshera H. Mohamed, for defendant-appellant.

WYNN, Judge.

     “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.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted). Because we find that the State presented competent evidence to support the trial court's finding that Defendant willfully, and without lawful excuse, violated terms of his probation, we affirm the decision of the trial court.
    On 3 August 2001, Defendant Javon Lamont Singletary pled guilty to breaking and entering, and the trial court imposed a sentence of ten to twelve months imprisonment. The trial courtsuspended that sentence and placed Defendant on supervised probation for thirty-six months. The terms of Defendant's probation were twice modified -- once “for good cause without charge of violation,” and once based upon allegations of violation. On 7 August 2003, Defendant's probation officer filed a violation report alleging various violations of the regular and special conditions of probation.
    This matter was first heard by Judge Victoria L. Roemer in District Court, Forsyth County on 26 September 2003. After hearing the evidence, Judge Roemer found and concluded that Defendant had willfully and without lawful excuse, violated certain terms and conditions of his probation, as alleged in the 7 August 2003 violation report. The judge, then, revoked Defendant's probation and activated his suspended sentence. Defendant appealed to the superior court, and this matter was heard by Judge Catherine C. Eagles in Superior Court, Forsyth County on 29 March 2004.
    At the hearing on the violation report, Defendant denied the willfulness of his alleged violations, and thereafter, the State presented the testimony of Defendant's probation officer, Jonathan Wilson. The officer testified in accordance with his 7 August 2003 violation report that Defendant had violated the terms and conditions of his probation as follows: (1) Defendant tested positive for marijuana on 2 May and 29 July 2003; (2) he failed to report as directed to his probation officer on four occasions; (3) he failed to comply with curfew on twenty-three occasions; (4) he was $130 in arrears on the original monetary obligation of $690,having a balance of $660; (5) he failed to obtain employment, and failed to provide proof of any effort to find employment; and (6) he was convicted of felony possession with intent to sell and deliver marijuana on 14 August 2003, and felony breaking and entering and felony larceny after breaking and entering on 5 February 2004.
    Defendant presented evidence which tended to show that he had been working for a lawn service, but was told to quit the job “due to the fact that . . . it wasn't a permanent place.” Defendant testified that he spoke with Wilson and his surveillance officer about needing another job and he had applied at numerous fast food restaurants, the Urban League and the unemployment office. Defendant explained that he missed his scheduled appointments with Wilson due to health problems and difficulty with the environment in which he was living after his mother lost her house. Defendant and his witnesses explained that he had a severe case of hemorrhoids, and an intestinal condition which made it difficult or impossible for him to work at times. Defendant admitted to being on probation in two other cases, and stated that if given a chance he could successfully complete the probationary periods in those cases and the present case. Defendant stated that the time spent in jail, awaiting a hearing on his probation violation in this case, had taught him a lesson.
    After hearing the evidence and the arguments of counsel, Judge Eagles found that Defendant had willfully and without valid excuse violated the terms and conditions of probation alleged in the 7August 2003 violation report. Judge Eagles then revoked Defendant's probation and activated his ten to twelve month suspended sentence. From that judgment, Defendant appeals.
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    Defendant's sole argument on appeal contends that the trial court erred in finding him in violation of his probation because there was no finding of fact that he willfully violated the conditions of his probation. Defendant's argument appears to be based upon the fact that Defendant presented evidence that health problems prevented him from working and attending some of the scheduled appointments with his probation officer. We find this argument to be unpersuasive.
    It is well settled that “'[p]robation . . . comes as an act of grace to one convicted of . . . a crime.'” State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)). Hence, “[a]ll that is required in a hearing of [probation violations] 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 defendant bears the burden of presenting competent evidence of his inability to comply with a probation condition, and if he fails to meet his burden, evidence of his failure to comply may justify a finding that the failure tocomply was willful or without lawful excuse. Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. Significantly, the trial judge, sitting as the finder of fact, may reject any or all of a defendant's evidence as untrue. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983).
    In the instant case, the State presented evidence which tended to show that Defendant failed to obtain satisfactory employment, missed several scheduled appointments with his probation officer, and failed to make monetary payments required by the terms and conditions of his probation. Defendant presented evidence that his health problems and frustration with his environment rendered him unable to comply with those particular conditions of his probation. The uncontradicted evidence, however, tends to show that Defendant tested positive for marijuana on two occasions, had twenty-three curfew violations, and had been convicted of two felonies during his probationary period -- all in violation of certain terms and conditions of his probation.
    Here, the record shows that the trial court heard and evaluated the State's evidence as to Defendant's failure to comply with the terms and conditions of his probation, as well as Defendant's evidence regarding his inability to comply with those terms and conditions. The trial court then rejected, as it may, Defendant's explanation for his failure to comply with the terms and conditions of his probation. See Williamson, 61 N.C. App. at 535, 301 S.E.2d at 426. Further, there was uncontroverted evidence as to at least three of the alleged violations. We, therefore,conclude that there was competent evidence to support the trial court's finding that Defendant willfully, and without lawful excuse, violated certain terms and conditions of his probation. Accordingly, the trial court properly revoked Defendant's probation and activated his suspended sentence.
    Affirmed.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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