An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-460


Filed: 15 November 2005


    v.                        Henderson County
                            Nos. 02 CRS 4482
SCOTT DAVID ARIAS                    02 CRS 4483

    Appeal by defendant from judgment entered 11 January 2005 by Judge C. Prestion Cornelius in Henderson County Superior Court. Heard in the Court of Appeals 10 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State.

    Gary C. Rhodes, for defendant-appellant.

    TYSON, Judge.

    Scott David Arias (“defendant”) appeals from judgment entered revoking his probation and activating his sentence of eight to ten months for obtaining property by false pretenses. We affirm.

I. Background
     Defendant pled guilty on 23 January 2003 to two counts of obtaining property by false pretenses. The trial court imposed a sentence of a minimum of eight months and a maximum of ten months. The court suspended defendant's sentence and placed him on supervised probation for eighteen months.
    On 6 July 2004, the court found that defendant had violated the terms and conditions of his probation. The court modified the terms and conditions of probation to extend the duration ofprobation for an additional year, from 23 July 2004 until 23 July 2005. As an additional term and condition of probation, the court ordered defendant to attend or reside in the DART program for a period of ninety days.
    On 7 October 2004, defendant's probation officer executed a violation report alleging defendant violated conditions of his probation by leaving the DART program on or about 28 August 2004 prior to completion or discharge, without permission of the supervising officer, and without making his whereabouts known.
    At the hearing on 11 January 2005, defendant admitted that he committed the violations. Defendant testified that he left the DART program after four to five days because he was not allowed to consume medications that had been prescribed for various medical conditions he suffers. These conditions include Crohn's disease, acid reflux, allergies, anxiety, and depression. He had been receiving Social Security disability payments for these conditions. While he was in the DART program and not taking the medications, he experienced more episodes of diarrhea, loss of sleep, rectal pain, and internal and rectal bleeding.
    Defendant talked to the director of the program, who stated that defendant could not receive the medications because they were controlled narcotic substances. He then called his probation officer seeking advice. His probation officer told him to report to the probation office. However, defendant did not report to the probation officer until a month after he left the DART program. He did not report because he “wanted to be there for the holidays for[his] daughter.”
    At the conclusion of all the evidence, the trial court commented that while the aggravation of defendant's medical conditions may have been an acceptable reason for his failure to complete the DART program, defendant's failure to report to his probation officer was unacceptable and willful. The court found that defendant willfully and without lawful excuse committed the violations. The court entered judgment revoking defendant's probation and activating his sentence. Defendant appeals.
II. Issues
    The issues on appeal are whether the trial court erred by: (1) entering an order revoking defendant's probation in the absence of competent and persuasive evidence that defendant had the present ability to comply with the terms of his probation; and (2) failing to dismiss the violation report upon the grounds that the report was filed and served after the expiration of the term of probation imposed upon defendant.
III. Revoked Probation
    By his first assignment of error, defendant contends the court erred and abused its discretion by revoking probation “in the absence of competent and persuasive evidence that the Defendant had the present ability to comply with the terms of his probation.”
        [A]ll that is required to revoke a suspension of a sentence in a criminal case, and to put the sentence into effect is that the evidence shall satisfy the judge in the exercise of his sound discretion that the defendant has violated, without lawful excuse, a valid condition upon which the sentence was suspended and that the judge's findings offact in the exercise of his sound discretion are to that effect.

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.'” State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967) (quoting Langnes v. Green, 282 U.S. 531, 541, 75 L. Ed. 520, 526 (1931)). The discretion of a trial judge will not be disturbed on appeal unless it is shown that the ruling “could not have been the result of a reasoned decision.” State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985).
    Probation in lieu of an active sentence is an act of grace extended to one convicted of a crime. State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). A probationer “carries the keys to his freedom in his willingness to comply with the court's sentence.” Robinson, 248 N.C. at 285, 103 S.E.2d at 379. Defendant's own testimony established that his probation officer expressed a willingness to work with defendant in helping him to comply with the condition of probation but that defendant deliberately failed to meet with or report his whereabouts to his probation officer. Under these circumstances, the trial court did not abuse its discretion in revoking defendant's probation. Defendant's assignment of error is overruled.
IV. Timely Filing of Violation Report
    By his remaining assignment of error, defendant contends thetrial court erred by failing to dismiss the violation report on the ground it was filed after his term of probation had expired. Based upon the original record on appeal filed with this Court, this assignment of error may have had merit. However, this Court allowed the State's motion to amend the record on appeal to add the judgment which modified the original judgment to extend the term of probation by one year, making the probation violation report timely filed. This assignment of error is overruled.
V. Conclusion
    We find no abuse of discretion by the trial court in revoking defendant's probation and activating his suspended sentence due to his willful failure to comply with the terms and conditions of his probation. The probation violation report was timely filed. The trial court's judgment is affirmed.
    Judges MCCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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