State v Suitt, (04-1701) 11/15/2005

Appeal by defendant from judgment entered 29 March 2004 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 10 November 2005.

Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for the State.

Moshera H. Mohamed, for defendant-appellant.

TYSON, Judge.

Sharyn Denise Suitt (“defendant”) appeals from judgment entered revoking her probation and activating her suspended sentence of eleven to fourteen months imprisonment for obtaining property by false pretenses. We affirm.

     On 5 April 2001, defendant pled guilty pursuant to a plea agreement to obtaining property by false pretenses. Defendant was sentenced to a term of eleven to fourteen months imprisonment and ordered to make restitution. The trial court suspended defendant's sentence and placed her on supervised probation for thirty-six months.
    On 12 November 2003, a probation violation report was filedalleging defendant had failed to comply with the terms and conditions of her probation. The report alleged defendant: (1) had left her place of residence and failed to inform her probation officer of her new address; and (2) was in arrears on the monetary obligation of her probation.
    On 29 March 2004, a probation violation hearing was held. Defendant admitted to the monetary violation, but denied absconding. The State presented evidence that defendant's probation officer had gone to defendant's apartment, but the apartment was vacant and he could not locate her. Defendant presented no evidence. The trial court: (1) found defendant had willfully violated the terms and conditions of her probation without lawful excuse; (2) revoked defendant's probation; and (3) activated her suspended sentence. Defendant appeals.

    Defendant contends she was evicted because she was disabled, could not work, and could not pay rent. Defendant further argues that her disability prevented her from making payment toward her monetary obligation. Defendant argues her violation was not willful.
     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 [or her] 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 willful or without lawful excuse.

State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted).
     The State alleged that defendant violated her probation by absconding and failing to make payment towards her monetary obligation. The State presented evidence that defendant could not be located. Additionally, the probation officer's verified written report of the probation violation was admissible in evidence. State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846, disc. rev. improvidently allowed in part, 348 N.C. 508, 510 S.E.2d 670 (1998), aff'd in part per curiam, 350 N.C. 302, 512 S.E.2d 424 (1999) ; see also State v. Dement, 42 N.C. App. 254, 255, 255 S.E.2d 793, 794 (1979) (“Sufficient evidence was presented in the verified and uncontradicted violation report served upon the defendant to support the trial court's findings and conclusions.” (citing State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967)) . Competent evidence in the record supports the trial court's conclusion that defendant violated her probation.
    Once the State presented evidence that defendant had violated her probation, the burden shifted to defendant to show excuse orlack of willfulness. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). If the defendant fails to carry this burden, evidence of failure to comply may justify a finding that the violation was willful or without lawful excuse. Id.
     Here, defendant offered no competent evidence to explain or excuse her probation violations. Defendant's reasons why she failed to comply with the terms and conditions of her probation were related to the trial court solely through statements of her counsel. Counsel admitted that defendant had not complied with the monetary conditions of her probation, but denied absconding. Counsel claimed that defendant was disabled and could not pay her monetary obligation.
    Our Court held in Crouch that “counsel's statements were not competent evidence” and that the Court's “review of representative cases disclose[d] no circumstances where statements of counsel have been treated as evidence, while the cases repeatedly state that the findings and conclusions of the trial court in such hearings must be based on competent evidence.” Id. Defendant's assignment of error is overruled.