STATE OF NORTH CAROLINA
v. Chatham County
No. 03 CRS 2233
EDWARD W. BURNETTE,
Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Barry Bloch, for the State.
Robert T. Newman, Sr., for defendant-appellant.
JACKSON, Judge.
On 23 January 2001, a jury found defendant Edward W. Burnette
guilty of felony possession of cocaine. The trial court sentenced
defendant to four to five months imprisonment, suspended the
sentence and placed defendant on thirty months supervised
probation. On 29 May 2003, defendant's probation officer filed a
probation violation report alleging that defendant had failed to:
(1) report to his probation officer on two dates; (2) pay his
monetary obligation; (3) notify his probation officer of his change
in employment; (4) left his residence and refused to make his
whereabouts known; (5) provide proof that he obtained a substance
abuse assessment. A warrant for defendant's arrest was issued thesame day, and defendant was served with the warrant on 3 July 2004
while he was in the custody of the Yadkin County detention
facility.
Judge Steve Balog held a probation violation hearing on 25
October 2004. At the hearing, defendant admitted violations (1),
(2) and (4) and the assistant prosecutor withdrew violations (3)
and (5). Defendant's probation officer, Lisa M. Robinson,
testified that the allegations in paragraphs (1), (2) and (4) were
true; that defendant had not paid any money since July of 2004;
that defendant had absconded within a month of her taking the case;
and that she had not seen defendant after 29 May 2003 until his
arrest in Yadkin County in July of 2004. Defendant testified that
he had problems with paying his obligation because he has “two
child-support fees to pay per month.” He further testified that
“using bad judgment, that's what kept me from seeing Ms. Robinson
at that time[.]”
At the conclusion of the hearing, the trial court concluded
that defendant willfully and without lawful excuse violated the
conditions of his probation in paragraphs (1), (2) and (4) . In a
judgment and commitment entered 25 October 2004, however, the trial
court found that “by the evidence presented” defendant violated the
conditions of his probation set out in paragraphs (1) and (2) of
the probation violation report. The trial court further found that
each violation is a sufficient basis upon which the court should
revoke probation. The trial court revoked defendant's probation
and activated defendant's sentence. Defendant appeals. The dispositive issue is whether defendant willfully violated
a condition of his probation without lawful excuse.
It is well settled that “'probation or suspension of sentence
comes as an act of grace to one convicted of, or pleading guilty
to, a crime.'” State v. Tennant, 141 N.C. App. 524, 526, 540
S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241, 245,
154 S.E.2d 53, 57 (1967)). “All that is required in a hearing [to
revoke probation] is that the evidence be such as to reasonably
satisfy the judge in the exercise of his sound discretion that the
defendant has willfully violated a valid condition of probation or
that the defendant has violated without lawful excuse a valid
condition upon which the sentence was suspended.” State v. Hewett,
270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). A verified
probation violation report is competent evidence sufficient to
support revocation of probation. State v. Gamble, 50 N.C. App.
658, 661, 274 S.E.2d 874, 876 (1981) (citing State v. Duncan, 270
N.C. 241, 154 S.E.2d 53 (1967)). Once the State meets its burden,
the burden then shifts to 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 willful or
without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353
S.E.2d 250, 253 (1987) (citing State v. Crouch, 74 N.C. App. 565,
567, 328 S.E.2d 833, 835 (1985)). “Any violation of a valid
condition of probation is sufficient to revoke [a] defendant's
probation.” Id. (citing State v. Freeman, 47 N.C. App. 171, 176,266 S.E.2d 723, 723 (1980)).
We conclude the State presented sufficient evidence to show
that defendant willfully violated the conditions of his probation
without lawful excuse. Here, defendant admitted to violations (1),
(2) and (4). Although defendant informed the trial court that he
did not comply with the monetary conditions of his probation
because of his child support obligations, defendant offered no
excuse for violating the condition requiring that he report to his
probation officer. In fact, defendant testified that he missed his
visits due to “bad judgment.” Defendant's admission, without
offering any evidence to justify not meeting with his probation
officer, was sufficient within itself to sustain the trial court's
finding that his failure to comply was without lawful excuse. See
State v. Alston, 139 N.C. App. 787, 794-95, 534 S.E.2d 666, 671
(2000). We conclude that there is evidence in the record to
support the judge's findings that defendant willfully and without
lawful excuse violated the conditions of his probation by failing
to meet with his probation officer.
Defendant next contends the trial court failed to make the
required findings of fact to support revocation pursuant to North
Carolina General Statutes, section 15A-1345.
Here, the revocation judgment incorporated the violation
report by reference. The trial court further found that the
defendant had committed two different violations of the terms and
conditions of his probation; that the terms and conditions violated
were valid, that defendant violated each condition willfully andwithout valid excuse; and each violation occurred prior to the
expiration or termination of defendant's probation. These ultimate
findings of fact are quite sufficient to support the trial court's
judgments of revocation. Contrary to defendant's assertion, the
trial court was not required to make evidentiary findings of fact
on all of the contentions raised by defendant in his explanations
to the court. See State v. Williamson, 61 N.C. App. 531, 301
S.E.2d 423 (1983).
Defendant further argues that the trial court erred in
revoking his probation because there is no evidence in the record
that the State complied with North Carolina General Statutes,
section 15A-1344.
When the trial court suspends a sentence and places a
defendant on probation on certain named conditions, the court may,
after notice and hearing, modify or revoke probation at any time
prior to the expiration or termination of the probation period.
N.C. Gen. Stat. § 15A-1344(d); See also State v. Camp, 299 N.C.
524, 263 S.E.2d 592 (1980). After the probation period has
expired, however, the trial court may revoke probation pursuant to
North Carolina General Statutes, section 15A-1344(f) which
provides:
Revocation after Period of Probation -- The
court may revoke probation after the
expiration of the period of probation if:
(1) Before the expiration of the period of
probation the State has filed a written motion
with the clerk indicating its intent to
conduct a revocation hearing; and
(2) The court finds that the State has made
reasonable effort to notify the probationer
and to conduct the hearing earlier.
Here, defendant's probation officer signed and dated the
violation report on 29 May 2003, two months before defendant's
probation was to expire. Furthermore, a warrant for defendant's
arrest was issued the next day. Because defendant absconded,
defendant was not served with the arrest warrant for his violations
until July 2004. Defendant signed the probation violation report
on 3 July 2004 and the trial court subsequently conducted a
probation hearing in October 2004. This evidence indicates that
the State filed a written motion with the clerk of its intent to
conduct a revocation hearing and, therefore, the State met its
burden of perfecting the trial court's jurisdiction for a probation
revocation hearing after defendant's period of probation had
expired and that defendant was put on notice that a hearing would
be conducted. See N.C. Gen. Stat. § 15A-1344(f).
Affirmed.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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