STATE OF NORTH CAROLINA
v. New Hanover County
No. 04 CrS 4171-4181
JOHN A. BRODIE
Attorney General Roy Cooper, by Assistant Attorney General
Kathryn J. Thomas, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant-appellant.
STEELMAN, Judge.
Defendant appeals from revocation of probation and activation
of eleven sentences of eleven to fourteen months each imposed on
convictions of felonious breaking or entering.
Defendant pled guilty on 25 March 1996 to multiple counts of
felonious breaking or entering. The court sentenced defendant to
a combination of active sentences, split sentences (a short active
sentence coupled with probation), and probationary sentences, all
to run consecutively. After serving the active portions of the
sentences, defendant was released from the Department of
Corrections on 4 January 2004 to complete service of two
consecutive 60-month probationary sentences.
On 17 March 2004 defendant's probation officer filed violationreports alleging defendant violated conditions of probation by,
inter alia, testing positive for cocaine and marijuana on 24
February 2004 and 1 March 2004; failing to abide by curfew; failing
to maintain employment; and failing to make payments toward the
monetary conditions of probation. Defendant, who represented
himself at the hearing, admitted that he tested positive for the
drugs, that he failed to keep a scheduled office visit, that he
violated curfew six times, and that he had made no payments toward
the monetary conditions of probation.
At the conclusion of the hearing the court found that
defendant willfully committed the violations. It announced that it
would activate only one of the sentences. Defendant requested that
the court activate all of the sentences. The court asked defendant
whether that was really what he wanted, and allowed defendant a few
minutes to think about his request. Subsequently, the following
exchange took place:
THE DEFENDANT: I'll take the 11 to 14 months
that you offered me [the] first time, Your
Honor. And I have another request that upon
my release coming back on probation, that I do
not have Ms. Rawls as a probation officer,
please.
THE COURT: I am not getting into the
assignment of probation officers. And, quite
frankly, looks to me like, not a thing in the
world wrong, but she reported you mighty
quick, but --
THE DEFENDANT: I'll handle it. I know how to
get rid of her, I will do that, as a probation
officer.
THE COURT: Have the record reflect Court upon
review of the attitude of Mr. Brodie has
considered his responses before his request,has considered his prior record, and has
considered his statements upon being brought
back out, and, therefore, reconsiders his
prospects as a probationer, whether Mr. Brodie
is truly benefitting from the probation, is it
therefore ordered that his probation in toto
is revoked.
Mr. Sheriff, he's in your custody.
THE DEFENDANT: What did you just say?
THE COURT: I said it's time for a recess.
(This concluded these proceedings.)
R. 125-26.
In his sole argument before us, defendant contends that the
court abused its discretion by revoking his probation and
activating all of the sentences after initially revoking probation
in only one case. He argues the court had no additional evidence
to support revocation of probation in all cases. We disagree.
Proceedings to revoke probation are informal or summary,
State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 479 (1967), and
formal rules of evidence do not apply, N.C. Gen. Stat. § 15A-
1345(e) (2004).
“[A]ll that is required to revoke a suspension of
a sentence in a criminal case, and to put the sentence into effect
is that the evidence shall satisfy the judge in the exercise of his
sound discretion that the defendant has violated, without lawful
excuse, a valid condition upon which the sentence was suspended and
that the judge's findings of fact in the exercise of his sound
discretion are to that effect.” State v. Robinson, 248 N.C. 282,
287, 103 S.E.2d 376, 380 (1958). A decision addressed to the
discretion of a trial judge will not be disturbed on appeal unless
it is shown that the ruling “could not have been the result of areasoned decision.” State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d
450, 465 (1985). “Judicial discretion implies conscientious
judgment, not arbitrary or willful action. It takes account of the
law and the particular circumstances of the case, and 'is directed
by the reason and conscience of the judge to a just result.'”
Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967), quoting
Langnes v. Green, 282 U.S. 531, 541, 75 L.E. 520, 526 (1931).
Probation in lieu of an active sentence is an act of grace
extended to one convicted of a crime. State v. Duncan, 270 N.C.
241, 245, 154 S.E.2d 53, 57 (1967).
A probationer “carries the
keys to his freedom in his willingness to comply with the court's
sentence.” Robinson, 248 N.C. 282, 285, 103 S.E.2d 376, 379
(1958). As the court's undisputed findings demonstrate, defendant
willfully committed multiple violations of probation less than two
months after being released from years of active incarceration.
Defendant's request for the court to assign a different probation
officer and his statement he knew “how to get rid of” his probation
officer further illustrate his disinclination to abide by the terms
and conditions of probation.
Defendant effectively threw away the
keys to his freedom. We find no abuse of discretion.
Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P. Rule
28(b)(6)(2005).
AFFIRMED.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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