An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA05-141

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

STATE OF NORTH CAROLINA

         v.                        Scotland County
                                No. 02 CRS 50524
                                    02 CRS 50526
TARA ANITRA DOUGLAS,                    02 CRS 53007
    Defendant.

    Appeal by Defendant from judgment entered 5 May 2004 by Judge E. Lynn Johnson in Superior Court, Scotland County. Heard in the Court of Appeals 3 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Gary A. Scarzafava, for the State.

    Bryan Gates, for defendant-appellant.

    WYNN, Judge.

     “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.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted). In this case, regardless of whether the trial court improperly admitted irrelevant evidence not related to the allegations in the violations report, Defendant admitted to willfully violating terms of her probation. Accordingly, we affirm the decision of the trial court.
     Defendant Tara Anitra Douglas pled guilty on 10 February 2003, to two counts of obtaining property by false pretenses. The courtsentenced Defendant to a minimum term of six months and a maximum term of eight months imprisonment. The court suspended the sentence and placed Defendant on supervised probation for twenty- four months.
    On 30 June 2003, Defendant pled guilty to common law robbery. The plea agreement provided that Defendant would receive a suspended sentence to run concurrently with any probationary sentence Defendant was then serving, that the conviction would not be a violation of her current probation, and that the sentence would be for sixteen to twenty months, suspended for thirty-six months of supervised probation, six months of intensive probation. The trial court sentenced Defendant in accordance with the plea agreement.
    On 10 March 2004, Defendant's probation officer filed violation reports alleging Defendant violated conditions of probation by (1) testing positive for marijuana on 26 August 2003, 21 October 2003, and 2 March 2004; and (2) failing to pay any amount toward the monetary condition of probation. Defendant appeared with counsel at the hearing and admitted that she willfully committed the above violations. The following transpired:    
        MS. MANIS [prosecutor]: Your Honor, the probation office had provided me with a recommendation on this defendant to place her on a hundred and twenty days electronic house arrest and recommend one week in jail. However, this defendant does _ has been placed on probation on two separate occasions. She was placed on probation and then she got a second case of probation. She currently has another pending charge that was on the trialcalendar for this week.

        She's paid absolutely no money. That doesn't indicate to me a good-faith effort. It appears that she's not really serious about this, and the State, in spite of the probation office's recommendation, would ask your Honor to revoke this defendant's probation.

        THE COURT: All right. You want to be heard in mitigation, Mr. Thompson?

        MR. THOMPSON [defense counsel]: Your Honor, I would ask the Court to rule on the probation officer's recommendation of electronic house arrest and spend one week in jail. And I would ask that that start Monday so she could be with her children on Mother's Day. She has two young children.

        And job-wise, the job market is a little tough in this area. So I would ask the Court to give her one last chance.

        THE COURT: What is the other pending charge?

        MS. MANIS: The current charge?

        THE COURT: Yes, ma'am.

        MS. MANIS: Is a motor vehicle rental charge involving a U-Haul. I would indicate to your Honor I processed the obtaining property offenses on the underlying. That also involved a U-Haul truck. The common-law robbery was actually reduced from an armed robbery charge by, I believe, Mr. Hardin.

        I'm aware of some other conduct of this defendant that violates her probation that's not alleged in the violation report; specifically, leaving the state and moving to New York with the U-Haul truck that's the subject of the pending charge, but she's not listed as an absconder on the violation. But she's been less than stellar in her performance of her probation.

        THE COURT: Were the probation judgments done on the same day and time or same session of court?
        MS. MANIS: No, sir.

        THE COURT: They were separate events?

        MS. MANIS: One was in February. The second one was in June. Is that correct? Isn't that correct?

        MR. SELLERS [probation officer]: February 10th, 2003; June 30th, 2003.

        THE COURT: And did the event on the June probation judgment, did that occur while she was on probation? Look at the date of the offense.

        MR. SELLERS: Date of offense for the common- law robbery that she was sentenced on June the 30th was July the 23rd of 2002.

        THE COURT: All right. And what was the date of the offense on the other one?

        MR. SELLERS: October the 5th, 2001, and September the 18th of 2001.

        THE COURT: So she was on pre-trial release at the time she committed the common-law robbery, or the armed robbery, alleged armed robbery?

        MR. SELLERS: Yes, sir. Excuse me. She was on probation at the time she committed the offense of common-law robbery.

        THE COURT: I'm sorry, what?

        MR. SELLERS: She was on probation in two counts of obtaining property by false pretenses at the time she committed the offense of common-law robbery.

        THE COURT: Mr. Clerk, may I see these two files, if you have them.

        (Bailiff hands files to Judge.)

        THE COURT: Ms. Douglas, are there drugs in your background that explain your conduct?

        THE DEFENDANT: Not since my last drug test.

        MR. THOMPSON: Your Honor, I believe if shegot this last chance she would do what the probation officer wants her to do. I'd ask the Court to give her one last chance.

        THE COURT: We'll be at ease for a moment. Let me just look at her files. (Pause; perusing documents.)

        Ms. Douglas, you were on unsupervised probation for giving a false report at the police station at the time you committed these offenses, the offense of obtaining property by false pretenses; is that not true?

        THE DEFENDANT: I was on unsupervised probation?

        THE COURT: Yes, ma'am.

        THE DEFENDANT: I mean, I know about that charge you talking about. I don't remember unsupervised probation.

        THE COURT: Well, the record shows that you had a false report at the police station in O1 CR 2227 that you were convicted of in Scotland County on June 27th, 2001. I'm not even talking about all the other charges that you've been convicted of.

        So you were on unsupervised probation when you committed the offense of obtaining property by false pretense?

        THE DEFENDANT: Uh-huh.

        THE COURT: Pardon?

        THE DEFENDANT: Yes, sir.

        THE COURT: Well, those dates were in September and October of the same year; is that not true?

        THE DEFENDANT: For which one? For the false --

        THE COURT: The date of the offenses, the obtaining property by false pretenses, were in September and October of 2001, and you had just been placed on unsupervised probation in the district court for making a false reportto the police department in June of that year; is that not true?

        THE DEFENDANT: I'm not saying it's not true.

        THE COURT: Well, it looks like you already, as of that date and time, had a little budding criminal history in that you had been convicted of allowing an unlicensed person to drive; shoplifting; injury to real property; simple assault, two counts; communicating threats; second-degree trespass; speeding; and then the false report to a police station; is all that not true?

        THE DEFENDANT: (Nods affirmatively.)

        THE COURT: Pardon?

        THE DEFENDANT: Yes, sir.

        THE COURT: Well, by the time you saw Judge Ellis on the second round, your record had even expanded to misdemeanor larceny in Cumberland County, speeding in Scotland, reckless driving to endanger in Scotland, motorcycle/moped helmet violation, misdemeanor larceny in Scotland County, and then the obtaining property by false pretenses.

        Mr. Thompson, you're an articulate attorney, but she is not a suitable candidate for continuation of probation. The Court finds the violations and the wilfulness thereof in each of the separate cases and orders activation of the underlying sentences of six to eight months for the obtaining property by false pretense, sixteen to twenty months for the common-law robbery. If I say nothing else, these sentences run concurrent as a matter of law, Mr. Thompson.

The court accordingly revoked probation and activated Defendant's sentences. Defendant appeals.
        __________________________________________
     Proceedings to revoke probation are informal or summary. State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 479 (1967). Formal rules of evidence do not apply. N.C. Gen. Stat. § 15A- 1345(e) (2004).
        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 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 wilful or without lawful excuse.

Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253 (citations omitted). Whether there is evidence that the defendant has violated a valid condition of probation is left to the trial judge's discretion. State v. Robinson, 248 N.C. 282, 287, 103 S.E.2d 376, 380 (1958). “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. at 353, 154 S.E.2d at 480 (quoting Langnes v. Green, 282 U.S. 531, 541, 75 L. Ed. 520, 526 (1931)).
    Defendant's sole contention is that the trial court improperly considered facts outside the allegations alleged in the violation report in deciding whether to revoke probation and to activate the sentence. Defendant cites to State v. Cunningham, 63 N.C. App. 470, 305 S.E.2d 193 (1983), to support her argument that the trial court improperly considered evidence of the pending charge and her absconding arising out of the rental of the U-Haul truck.     In Cunningham, the probation violation report charged that the defendant violated probation by playing loud music and by removing private property signs without his neighbor's permission. 63 N.C. App. at 475, 305 S.E.2d at 196. In revoking probation, the court found that in addition to playing loud music, the defendant trespassed upon and damaged real property belonging to his neighbors. Id. This Court held that evidence regarding the defendant's actions in damaging the real and personal property of his neighbor should not have been considered because the defendant was not given notice of this alleged violation in the violation report. Id., 305 S.E.2d at 196-97.     
    In this case, assuming arguendo that the trial court erred in allowing evidence of Defendant leaving the State of North Carolina and of a pending charge, there was still evidence supporting probation violations in the violation report relied upon by the trial judge. Defendant admitted to willful commission of the charged violations. See Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253 (“Any violation of a valid condition of probation is sufficient to revoke defendant's probation.”).
    Accordingly, we find no abuse of discretion and affirm the judgments.
    Affirmed.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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