STATE OF NORTH CAROLINA
v. Scotland County
No. 02 CRS 50524
02 CRS 50526
TARA ANITRA DOUGLAS, 02 CRS 53007
Defendant.
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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