State v Avery, (05-232) 09/06/2005

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 15 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General Nancy E. Scott, for the State.

Anne Bleyman, for defendant-appellant.

STEELMAN, Judge.

    On 15 January 2003, defendant pled guilty in Person County Superior Court to four counts of obtaining property by false pretenses (02 CrS 52792, 53576, 53528, 52965) and three counts of worthless check (02 CrS 3058, 52909, 53096). The court entered suspended sentences and placed defendant on supervised probation. On 26 April 2004, defendant pled guilty in Durham County District Court to four counts of common law uttering (02 CrS 60233-36). The court imposed an additional suspended sentence for these offenses. As a condition of probation, the court ordered defendant to “[e]nroll in and successfully complete Adult Drug Treatment Court.”The court authorized transfer to Person County for supervision.
    On 9 May 2004, Judge W. Osmond Smith III entered an order in Person County Superior Court finding defendant had violated conditions of the 15 January 2003 probationary judgment. He continued defendant on probation and as an additional condition of probation, ordered defendant “to enroll in and complete the Person County Drug Treatment Court and abide by all rules and regulations of that program until discharged.”
    On 9 July 2004, defendant's probation officer filed violation reports in all of the cases charging that defendant violated conditions of probation by failing to comply with the drug treatment court program.
    At the probation revocation hearing on 13 October 2004, defendant's probation officer testified that defendant failed to successfully complete the drug treatment program because she failed to attend treatment classes and meetings. On or about 30 June 2004, defendant told him that she had been prevented from attending drug treatment court because she had been bitten by a spider. He told defendant that she needed to provide medical papers or documentation. Defendant failed to provide the documentation and she was terminated from the program on 17 August 2004.
    Defendant testified that she was prevented from attending the drug treatment court meetings because she was recovering from spider bites. She was treated with antibiotics and pain killers. At one time she was on crutches because of the bites. She produced documents from a hospital emergency room excusing her fromattending classes on 13 May 2004 through 5 June 2004, 7 June 2004 through 9 June 2004, and 14 June 2004 to 19 June 2004. She further testified that she did not deliver these documents to her probation officer or the drug treatment class because of car troubles, and that she did call the drug court to notify it that she had medical excuses explaining her absences.
    At the conclusion of the hearing, Judge Smith found that defendant willfully violated the condition requiring her to enroll and complete the Person County Drug Treatment Court Program and abide by all rules and regulations of the program. Based upon this violation, Judge Smith revoked probation and activated defendant's sentences.
    Defendant contends the court erred in finding that she willfully violated the condition of probation and abused its discretion in revoking probation and activating the sentence. She argues the court failed to consider her evidence of lawful excuse or lack of willfulness.
     To revoke probation “[a]ll that is required . . . 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). The defendant has the burden of showing excuse or lack of willfulness and if the defendant fails to carry this burden, evidence of failure to comply is sufficient to support a findingthat the violation was willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). A defendant's evidence which contradicts or disputes the prosecution's evidence merely creates credibility issues for the trial judge to resolve. State v. Darrow, 83 N.C. App. 647, 649, 351 S.E.2d 138, 140 (1986). The trial judge, as the fact finder, is not required to accept the defendant's testimony or evidence as true. State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). The judge's finding of a willful violation, if supported by competent evidence, will not be disturbed on appeal absent a showing of manifest abuse of discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
    We find neither error nor abuse of discretion. Judge Smith had previously found defendant in violation of terms of probation and had modified the terms of probation to require as an additional condition that she attend the Person County Drug Treatment Court. It is undisputed that defendant did not successfully complete the drug treatment court program and that she did not provide her probation officer or officials of the drug treatment court program with documentation of medical excuses for her absences. “Probation is an act of grace by the State to one convicted of a crime.” State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (1980). A probationer “carries the keys to his freedom in his willingness to comply with the court's sentence.” State v. Robinson, 248 N.C. 282, 285, 103 S.E.2d 376, 379 (1958). Nothing in the record indicates thatdefendant was prevented from mailing the medical excuses or documents or obtaining transportation from others so she could deliver the documents.
    The judgments are affirmed.
    Affirmed.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

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