STATE OF NORTH CAROLINA
v. Vance County
Nos. 94 CRS 664; 2643
LOLA ALLEN 94 CRS 6713-17
Attorney General Roy Cooper, by Assistant Attorney General
Donna B. Wojcik, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
defendant-appellant.
MARTIN, Chief Judge.
Defendant Lola Allen was placed on probation in 1994. In
August of 1996, defendant's probation officer filed several
probation violation reports. All of the probation reports in
paragraphs four and five alleged that: (1) defendant violated
regular condition of probation number six by failing to report as
directed by her probation officer and (2) defendant violated
regular condition of probation number five by leaving the
jurisdiction of the court without permission.
Judge Henry W. Hight, Jr., held a probation violation hearing
on 10 January 2005. Defendant admitted the violations but denied
willfulness. Defendant testified that she failed to makeappointments with her probation officer because she “was having to
go from one job and one move from house to another because I wasn't
working on a steady job[.]” Defendant further testified that
although she knew she had to notify her probation officer about
moving, “it was a couple of times when I had to move so suddenly,
I didn't have time to let her know before I moved.” She stated
that she was “getting put out” because she could not pay her bills.
On cross-examination, defendant admitted that she did not have any
contact with her probation officer after March of 2000.
Defendant's probation officer informed the trial court that
“[defendant] failed to appear in court [in March of 2000] and I
never saw her again until she was captured in November of [2004].”
Defendant's probation officer further testified that defendant did
not have permission to leave her residence and that defendant had
absconded twice. The trial court found defendant willfully
violated probation and revoked defendant's probation. By judgments
entered 13 January 2005, the trial court activated defendant's
original sentences and had them run concurrently. Defendant
appeals.
The sole issue is whether defendant willfully violated a
condition of her probation without lawful excuse.
It is well settled that “'[p]robation 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 hearingto 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). 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
wilful or without lawful excuse.” 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 [a] defendant's
probation.” Id.
We conclude the State presented sufficient evidence to show
that defendant willfully violated the conditions of her probation
without lawful excuse. Here, the State presented evidence through
the testimony of defendant's probation officer and the violation
report that defendant failed to report. Defendant admitted all of
the violations in the report and specifically admitted that she had
no contact with her probation officer after March of 2000.
Although defendant admitted the violation, she offered no competent
evidence to explain or to excuse her probation violation. Rather,defendant merely stated that she would have to move from house to
house. Defendant's vague justification for not contacting her
probation officer was insufficient evidence of a lawful excuse for
her probation violation. Thus, because defendant presented no
competent evidence showing excuse or lack of willfulness as to any
of the probation violations set forth in the probation violation
report, she failed to carry her burden. Since the court need find
only one violation was willful to revoke probation and defendant
failed to meet her burden regarding this violation, we conclude it
was within the trial court's discretion to revoke defendant's
probation. The order of the court is affirmed.
Affirmed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***