Appeal by defendant from judgments entered 14 December 2004 by
Judge James F. Ammons, Jr. in Cumberland County Superior Court.
Heard in the Court of Appeals 30 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Laura J. Gendy, for the State.
Sue Genrich Berry for defendant.
BRYANT, Judge.
Patricia Ann Boykin (defendant) appeals from judgments entered
14 December 2004 revoking her probation and sentencing her to a
term of forty to forty-eight months imprisonment.
On 6 November 2000, defendant was indicted on four felony
counts of embezzlement in violation of N.C. Gen. Stat. § 14-90
(2003). On 8 February 2001, defendant pleaded guilty to all four
counts of embezzlement. Defendant's active sentences of ten to
twelve months imprisonment in each of the four counts were
suspended, and she was placed on supervised probation for a period
of sixty months on the condition she provided repayment of costs
and fines totaling $30,069.25. On 6 March 2002, defendant's probation was modified to require
payments of $635.00 per month, effective 1 April 2002. On 8
November 2004, defendant's probation officer filed probation
violation reports alleging that defendant willfully violated the
monetary terms of her probation. Defendant was tried at the 13
December 2004 session of Cumberland County Superior Court before
the Honorable James F. Ammons, Jr. After a hearing on the merits,
the trial court found a willful violation of defendant's probation
and activated defendant's sentences. Defendant appeals.
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The dispositive issue on appeal is whether the trial court
erred in revoking defendant's probation for failure to comply with
the monetary conditions of her probation in violation of the Fifth,
Sixth and Fourteenth Amendments to the U.S. Constitution.
Defendant argues the trial court erred as a matter of law or, in
the alternative, abused its discretion by revoking her probation
for her failure to comply with monetary conditions. Defendant
further alleges the trial court erred when it revoked her probation
with respect to both the U.S. and North Carolina Constitutions.
Specifically, defendant contends that because (1) she was an
indigent and (2) the trial court failed to consider whether she
made bona fide efforts to pay, there were insufficient grounds to
warrant probation revocation. We disagree.
In order to preserve a question for appellate review, a party
must have presented the trial court with a timely request,
objection or motion, stating the specific grounds for the rulingsought if the specific grounds are not apparent. The complaining
party must also obtain a ruling upon his request, objection or
motion. N.C. R. App. P. 10(b)(1) (2003);
State v. Eason, 328 N.C.
409, 420, 402 S.E.2d 809, 814 (1991). In the present case,
defendant did not make an exception or lodge an objection at the
trial court level. Thus, she has failed to preserve this issue for
appellate review in the manner dictated by N.C. R. App. P. 10(b)
(1).
Defendant now seeks to convince this Court that her probation
was wrongfully activated by making federal and state constitutional
arguments. However, constitutional issues which are not raised and
passed upon at the trial court level will be deemed as waived and
will not be considered for the first time on appeal.
State v.
Smith, 352 N.C. 531, 557-58, 532 S.E.2d 773, 790 (2000),
cert.
denied, 532 U.S. 949, 149 L. Ed. 2d 360 (2001). “Defendant may not
swap horses after trial in order to obtain a thoroughbred upon
appeal.”
State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519
(1988). Here, defendant did not raise constitutional issues during
the course of her probation violation hearing and may not do so for
the first time on appeal. Accordingly, defendant has not preserved
this issue for review on constitutional grounds and we will not
consider this issue.
However, defendant also challenges the trial court's ruling
was is violation of N.C. Gen. Stat. § 15-1345(e). While
defendant's allegation of a statutory violation is encompassed in
her only assignment of error, such violation is not specificallyargued in her brief, and is therefore deemed abandoned. N.C. R.
App. P. 28(b)(6). Even if defendant had properly argued this
matter, we determine defendant's assignment of error lacks merit.
N.C.G.S. § 15-1345(e) provides that “[b]efore revoking or
extending probation, the court must, unless the probationer waives
the hearing, hold a hearing to determine whether to revoke or
extend probation and must make findings to support the decision and
a summary record of the proceedings.” The State bears the burden
of showing that the defendant has violated one of the conditions of
his probation.
State v. Tennant, 141 N.C. App. 524, 527, 540
S.E.2d 807, 808 (2000). “In a probation revocation proceeding
based upon defendant's failure to pay a fine or restitution which
was a condition of [her] probation, the burden is upon defendant to
'offer evidence of his inability to pay money according to the
terms of the probationary judgment.'”
State v. Jones, 78 N.C. App.
507, 509, 337 S.E.2d 195, 197 (1985) (quoting
State v. Williamson,
61 N.C. App. 531, 534, 301 S.E.2d 423, 426 (1983)). The trial
court's judgment will not be disturbed unless there is a showing of
abuse of discretion, procedural conduct prejudicial to the
defendant, or circumstances which manifest inherent unfairness.
State v. Wilkins, 297 N.C. 237, 246, 254 S.E.2d 598, 604 (1979).
Defendant argues she was indigent and did not have the means
to pay her obligations, and that the trial court incorrectly
focused on the cancellation of her first debt rather than
determining whether she made bona fide efforts to pay restitutionto her victims. The trial court had ample evidence to support its
findings that defendant willfully violated the monetary conditions
of her probation. Despite the fact defendant earned approximately
$8,000.00 per year and received at least $6,000.00 in gifts from
family members over the past three years, she made absolutely no
restitution payments for months, and even years, at a time.
Defendant's probation officer testified that “[e]very month I have
practically begged [defendant] to make some type of payment, even
a good-faith payment, to pay 10, 20, or 30 dollars just to show
good-faith.” These “good-faith” payments were significantly less
than $635.00 per month, yet defendant repeatedly refused to take
steps to reduce her debt and never attempted to work with her
probation officer to construct a payment plan. Furthermore, it is
clear from the record defendant had previously been involved in
probation revocation hearings for other embezzlement crimes. Since
the mid-1990's, she had been placed on probation for no less than
seven separate counts of embezzlement. At the present revocation
hearing, defendant testified she was familiar with the probation
system and the mechanism of a probation revocation hearing and had
been absolved of having to pay restitution on other embezzlement
convictions. These facts show that the trial court carefully
considered the evidence. There was no abuse of the trial court's
discretion when it activated defendant's sentences.
State v.
Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (“Any
violation of a valid condition of probation is sufficient to revoke
defendant's probation. All that is required to revoke probation isevidence satisfying the trial court in its discretion that the
defendant violated a valid condition of probation without lawful
excuse.”) (citations omitted). Here, the trial court had ample
evidence from which to find that defendant willfully violated a
valid condition of probation, without lawful excuse.
Affirmed.
Judges TYSON and CALABRIA concur.
Report per Rule 30(e).
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