State v Nelson, (05-97) 09/06/2005

Appeal by defendant from judgments entered 5 August 2004 by Judge Mark E. Klass in Davidson County Superior Court. Heard in the Court of Appeals 08 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General Dorothy Powers, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.

STEELMAN, Judge.

    On 16 September 2002, defendant pled guilty to sixteen counts of obtaining property by false pretenses. The trial court consolidated the offenses for judgment and sentenced defendant to six consecutive prison terms of eleven to fourteen months, suspended, with sixty months of supervised probation.
    In a report filed 14 June 2004, defendant was cited for four probation violations in 02 CRS 055314: (1) failing to attend three scheduled appointments with her probation officer; (2) failing to satisfy the monetary conditions of her probation, having accumulated a $3,625.00 arrearage in her monthly payment obligations; (3) lying to her probation officer concerning newcharges for embezzlement, and refusing to answer the officer's inquiries concerning the charges; and (4) failing to remain gainfully employed. Additional reports filed 14 June 2004 in 02 CRS 055315-19 charged defendant with three of the four violations alleged in 02 CRS 055314, but did not cite defendant with the monetary violation of her probation.
    In an addenda filed 27 July 2004 to the above report, defendant's probation officer cited her with submitting a fraudulent doctor's excuse for a missed appointment.     At the beginning of her 5 August 2004 hearing, defendant moved for a continuance, claiming insufficient notice of the violation contained in the addenda.
    The trial court denied defendant's motion. The prosecutor then reviewed the four allegations raised in the report filed in 02 CRS 055314. Defendant admitted the first violation (missed appointments), admitted but denied the wilfullness of the second violation (arrearage in monetary conditions), admitted the third violation (failure to report criminal charges), and denied the fourth violation (failure to maintain employment). She also denied the violation contained in the addenda. After hearing the parties' evidence, the trial judge found that defendant “willfully, without lawful excuse, violated her probation” and activated her suspended sentences. The trial court found as violations each of the four violations contained in the 14 June 2004 report, and further found that “[e]ach violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate thesuspended sentence.”
    On appeal, defendant claims the trial court erred in denying her motion for a continuance for the purpose of addressing the allegation raised in the 27 July 2004 addenda to her violation reports. She avers that she “was both constitutionally and statutorily entitled to sufficient written notice of the allegations against her.” Defendant did not raise her constitutional claim in the trial court, however, and may not do so for the first time on appeal. See State v. Lloyd, 354 N.C. 76, 86- 87, 552 S.E.2d 596, 607 (2001) (citing State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)).
    "'[P]robation is an act of grace by the State to one convicted of a crime.'" State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999) (quoting State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. rev. denied, 301 N.C. 99, 273 S.E.2d 304 (1980)). It is well established that a defendant's violation of even a single condition of probation provides sufficient grounds for the trial court to revoke probation and to activate a suspended sentence. See, e.g., State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). Here, defendant's assignment of error concerns only the violation charged in the addenda filed on 27 July 2004. The defendant admitted to the first violation contained in the report of 14 June 2004. The trial court found that this violation, in and of itself, was a sufficient basis for revocation. Therefore, the denial of defendant's motion for a continuance is irrelevant to this appeal and assuming arguendo that it was, it washarmless.
    The record on appeal contains additional assignments of error not addressed by defendant in her brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
    AFFIRMED.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

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