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.
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.)
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).
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***