An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-30


NORTH CAROLINA COURT OF APPEALS

Filed: 4 October 2005

STATE OF NORTH CAROLINA

v .                         Person County
                            Nos. 00 CRS 6799
DECARLOS MOSS                        00 CRS 6800
                                01 CRS 4790
                                01 CRS 50629

    Appeal by defendant from judgments entered 13 October 2004 by Judge W. Osmond Smith, III, in Person County Superior Court. Heard in the Court of Appeals 14 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Clinton C. Hicks, for the State.

    Terry F. Rose, for defendant-appellant.

    TYSON, Judge.

    DeCarlos Moss (“defendant”) appeals from the trial court's revocation of his probation and the activation of his suspended sentences. We remand for resentencing.

I. Background
    On 14 February 2001, defendant pled guilty to one count of breaking and entering and one count of conspiracy to commit breaking and entering. Defendant was sentenced to a suspended term of six to eight months imprisonment on the conspiracy charge and six to eight months imprisonment on the breaking and entering charge to run consecutively with the sentence imposed on the conspiracy charge. Defendant served a two month active sentence asa condition of special probation and was placed on regular supervised probation for a period of thirty-six months. Defendant received credit for the two months he served.
    On 16 January 2002, defendant pled guilty to possession of a firearm by a felon and felonious assault with a deadly weapon. He was sentenced to a suspended term of fifteen to eighteen months imprisonment. Defendant served 135 days incarceration as a condition of special probation and was given credit for time served. Defendant's previous probation was modified and he was placed on intensive supervised probation for a period of six months.
    On 26 April 2002, an arrest warrant was issued charging defendant with murder. On the same day, an order was issued for defendant's arrest for violating his probation. Defendant was charged with failing to: (1) abide by his curfew; (2) attend a day reporting program; (3) obtain his G.E.D.; and (4) pay toward his financial obligations. Defendant was jailed on a $25,000.00 secured bond for the probation violations, which he was unable to post. The probation revocation hearing was calendared for 13 May 2002.
    Defendant remained in jail from the time of his arrest, through trial, and was convicted of first-degree murder. He was sentenced to life in prison without parole on 28 May 2004. Defendant's probation violation hearing was held on 13 October 2004. At the conclusion of the hearing, the court found defendant had willfully violated his curfew. Defendant's six to eight monthterm of imprisonment imposed on the breaking and entering charge was activated to run consecutively with all sentences he was obligated to serve. The six to eight month sentence imposed on the conspiracy to commit breaking and entering charge was activated to run concurrently with the breaking and entering sentence and the first-degree murder sentence. The fifteen to eighteen month imprisonment for possession of a firearm and assault imposed on 16 January 2002 was activated to run at the expiration of the breaking and entering sentence. Defendant appeals.
II. Issues
    The issues on appeal are whether: (1) the trial court violated defendant's Sixth Amendment right to confront witnesses at the probation revocation hearing when the trial court allowed hearsay testimony by a probation officer concerning statements made by an out of court third party to a different out of court probation officer; (2) defendant was denied his constitutional right to a speedy trial and due process; (3) the trial court erred when it activated defendant's sentences for probation violation when he was served with orders for arrest for probation violations on 26 April 2002 and the revocation hearing was not held until 13 October 2004; and (4) the trial court erred in refusing to grant defendant credit for time awaiting trial when he was served with orders for arrest for probation violations on 26 April 2002 and remained incarcerated until the hearing on 13 October 2004.
III. Sixth Amendment Right to Confront Witnesses
    Defendant argues the trial court violated his right to confront and cross-examine witnesses at the probation revocation hearing because the trial court allowed testimony by one probation officer concerning what a third party told a second probation officer. We disagree.
    Defendant's Intensive Probation Officer, Robby Carver (“Officer Carver”), testified at the probation revocation hearing. Defendant's probation imposed a curfew requiring him to be at his residence from 7:00 p.m. until 6:00 a.m. Officer Carver alleged defendant was away from his residence between these hours on six occasions and that his whereabouts were unknown.
    Officer Carver testified that he visited defendant's residence at 8:14 p.m. on 18 February 2002 and a female household member advised defendant was not home. He further testified that at 8:38 p.m. on that same evening, a surveillance officer visited defendant's residence and was told by defendant's sister that defendant was not home and his whereabouts were unknown. Defendant objected to Officer Carver's testimony regarding what defendant's sister told the surveillance officer as impermissible hearsay evidence.
    Officer Carver then testified that he visited defendant's residence at 9:54 p.m. on 27 March 2002 and no one answered the door. He further testified that a surveillance officer visited defendant's residence at 8:37 p.m. on that evening and was told by a fifteen-year-old girl that defendant was not at the residence. Defendant also objected to the testimony regarding what thefifteen-year-old girl told the surveillance officer as impermissible hearsay evidence.
    Officer Carver also testified he visited defendant's residence again on the evening of 2 April 2002 and no one answered the door. On 18 April 2002, a surveillance officer visited defendant's residence and no one answered the door. On 22 April 2002, Officer Carver visited defendant's residence and was advised by defendant's sister that defendant was not home and had not been there since the previous Wednesday. On the evening of 25 April 2002, Officer Carver again visited defendant's residence and defendant was not there.
    Revocation of probation proceedings are “often regarded as informal or summary” because “probation or suspension of sentence is an act of grace and not of right.” State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 57 (1967). “[T]he rights of an offender in a proceeding to revoke his conditional liberty under probation or parole are not coextensive with the federal constitutional rights of one accused in a criminal prosecution.” Id. at 246, 154 S.E.2d at 58 (citations omitted). A revocation of parole proceeding is not a criminal prosecution and no formal trial is required. Id. at 245, 154 S.E.2d at 57. The trial court is not bound by strict rules of evidence. Id. “All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended.” Id.    Defendant erroneously relies on State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967), for the proposition that a trial court may not rely on hearsay evidence as the sole basis for making factual determinations at a probation revocation hearing. In Hewett, our Supreme Court held that some of the trial court's findings of fact were based on hearsay evidence and should not have been considered, but there was enough evidence in the record to support the trial court's finding that the defendant willfully violated the conditions of his probation. 270 N.C. at 356, 154 S.E.2d at 482.
    Here, as in Hewett, substantial evidence, in addition to the testimony to which defendant objected, supports the trial court's finding that defendant willfully failed to abide by his curfew. Officer Carver personally visited defendant's residence between the hours of 7:00 p.m. and 6:00 a.m. on 27 March 2002 and 2 April 2002. A surveillance officer visited defendant's residence between those hours on 18 April 2002. No one answered the door at defendant's residence on these three occasions. Officer Carver also personally visited defendant's residence between the hours of 7:00 p.m. and 6:00 a.m. on the evenings of 18 February 2002, 22 April 2002, and 25 April 2002. On all three occasions, Officer Carver was advised by someone at defendant's residence that defendant was not home. “In determining whether the evidence warrants the revocation of a suspended sentence, the credibility of the witnesses and the evaluation and weight of their testimony, are for the judge.” State v. Robinson, 248 N.C. 282, 286, 103 S.E.2d 376, 379 (1958) (citations omitted). Substantial evidence in the record based uponthe personal knowledge of Officer Carver in addition to that objected to by defendant exists upon which the trial court could have reasonably found that defendant violated the conditions of his probation. This assignment of error is overruled.
IV. Sixth Amendment Right to a Speedy Trial
    Defendant next contends his Sixth Amendment right to a speedy trial under the United States Constitution was violated due to the length of time between his arrest for probation violations on 26 April 2002 and the probation revocation hearing held on 13 October 2004. We disagree.
    “The Sixth Amendment, which guarantees to the accused 'in all criminal prosecutions' a speedy and public trial 'by an impartial jury of the state and district wherein the crime shall have been committed,' is inapposite here.” State v. Green, 29 N.C. App. 574, 576, 225 S.E.2d 170, 172 (1976) (quoting State v. Braswell, 283 N.C. 332, 196 S.E. 2d 185 (1973)). Hearings to determine whether the terms of a suspended sentence have been violated are not “criminal prosecutions” for the purpose of invoking the right to a speedy trial under the Sixth Amendment of the United States Constitution. Id. This assignment of error is overruled.
V. Activation of Defendant's Suspended Sentences
    Defendant next contends the trial court erred when: (1) his sentences were activated to begin at the expiration of any sentences he was currently serving; (2) the probation revocation hearing was not until 13 October 2004; and (3) he was sentenced tolife in prison without parole on charges filed subsequent to the probation violation charges. We disagree.
    Defendant was placed in custody on allegations of violating his probation on 26 April 2002. Defendant's bond and conditions of release were set on the same day. Defendant was unable to post the required bond. The notice of hearing indicated that defendant's probation violation hearing was scheduled to be held on 13 May 2002. Defendant was also arrested and charged with murder on 26 April 2002. No conditions of release were set. The probation revocation hearing was held on 13 October 2004. On 28 May 2004, prior to the probation revocation hearing, defendant was convicted of first-degree murder and sentenced to life imprisonment without parole.
    Defendant argues the revocation hearing should have been held within a reasonable time period after he was arrested for the probation violations. Defendant asserts that if the probation revocation hearing had been held when scheduled, his activated suspended sentences would have run before, rather than after, his life sentence. Defendant has failed to argue or show how he was prejudiced by the fact that his suspended sentences were activated to consecutively run with the life sentence without possibility of parole. This assignment of error is dismissed.
VI. Credit for Time Spent Incarcerated
    Defendant finally contends the trial court erred in refusing to grant him credit for time awaiting trial. We agree.
    N.C. Gen. Stat. § 15-196.1 (2003) provides:        The credit provided shall be calculated from the date custody under the charge commenced and shall include credit for all time spent in custody pending trial, trial de novo, appeal, retrial, or pending parole, probation, or post-release supervision revocation hearing: Provided, however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject.

On 28 May 2004, defendant received a credit for 695 days incarceration awaiting trial under the first-degree murder conviction. Defendant spent 763 days incarcerated from 26 April 2002 until 28 May 2004. Defendant is entitled to an additional sixty-eight days credit towards his sentences. N.C. Gen. Stat. § 15-196.2 (2003) provides:
        In the event time creditable under this section shall have been spent in custody as the result of more than one pending charge, resulting in imprisonment for more than one offense, credit shall be allowed as herein provided. Consecutive sentences shall be considered as one sentence for the purpose of providing credit, and the creditable time shall not be multiplied by the number of consecutive offenses for which a defendant is imprisoned.
Defendant's first-degree murder sentence and parole violation sentences are treated as one sentence for the purpose of determining credit for pre-conviction incarceration. It is therefore irrelevant to which of the consecutive sentences the sixty-eight days credit applies. State v. Richardson, 295 N.C. 309, 319, 245 S.E.2d 754, 761-62 (1978). We disagree with defendant's contention that he is entitled to credit on his activated probationary sentences for the time served from his first-degree murder conviction on 28 May 2004 until his probationrevocation hearing on 13 October 2004. Defendant was serving an active life sentence during that period of time. We decline to hold that defendant is entitled to credit on the activated sentences for the entire time he was incarcerated and for which he received credit for time served.
    Defendant also served a number of active days incarcerated as part of special probation. He served two months as a condition of special probation on the breaking and entering offense and 135 days as a condition of special probation on the possession of a firearm by a felon and assault with a deadly weapon offenses. “[A] defendant who has served, pursuant to special probation, an active sentence, is entitled to credit for that time on any sentence imposed upon revocation of probation.” State v. Farris, 111 N.C. App. 254, 256, 431 S.E.2d 803, 805 (1993). None of the judgments activating defendant's sentences on the probation violations reflect whether the trial court determined what, if any, credit defendant was due or received.
    The granting of credit for time served incarcerated is not within the discretion of the trial court. N.C. Gen. Stat. § 15-196.1. Defendant is entitled to credited for two months time served on the six to eight month sentence for the breaking and entering offense and 135 days credit on the fifteen to eighteen month sentence for the possession of a firearm by a felon and assault with a deadly weapon offenses. Defendant is entitled to receive credit for the time he served pursuant to special probation and credit for the sixty-eight days he served prior to his first-degree murder conviction if he has not previously received credit for time served.
VII. Conclusion
    Defendant failed to show prejudicial error in the trial court's admitting hearsay testimony in his probation revocation hearing or in activating his suspended sentences to run consecutively with his life sentence. Defendant is entitled to credit for the sixty-eight days he was incarcerated prior to his first-degree murder conviction for which he did not receive credit and for days he was actually incarcerated pursuant to special probation. We remand this case to the trial court for resentencing of defendant consistent with this opinion.
    Remanded.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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