State v Blanton, (05-1115) 06/06/2006

Appeal by defendant from judgment entered 24 January 2005 by Judge David S. Cayer in Gaston County Superior Court. Heard in the Court of Appeals 15 March 2006.

Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams and Assistant Attorney General Melissa H. Taylor, for the State.

Office of the Public Defender, by Assistant Public Defender Julie Ramseur Lewis, for defendant.

    LEVINSON, Judge.

    Rebecca Blanton (defendant) appeals from an order revoking a probationary sentence, and activating the corresponding prison term. We affirm.
    Defendant was indicted 7 May 2001 in Gaston County, North Carolina, and charged with armed robbery in 01 CRS 53380. On 4 September 2001 defendant pled guilty to common law robbery, in violation of N.C. Gen. Stat. § 14-87.1. Defendant was sentenced to a suspended twenty-five to thirty month term of imprisonment. The term of probation was to begin at the expiration of the sentence imposed in another case.    On 30 August 2004 defendant's probation officer filed a violation report, alleging that defendant was in violation of the terms of her probation by: (1) failing to complete her community service hours; (2) being $50.00 in arrears on her payment for costs, fees, and restitution; and (3) being $30.00 behind on her payments for probation supervisory fees. Following a hearing, the trial court on 5 October 2004 found defendant in violation of probation. The trial court did not revoke defendant's probation. Instead, it modified the conditions of probation, and ordered defendant to return for a review hearing in ninety days. As modified, defendant's probationary sentence required her to serve 72 hours in jail instead of performing community service, and remitted the costs and fees, leaving only the restitution owing. At the review approximately ninety days later, the trial court found defendant in violation of her probationary terms, and on 5 October 2004 the court entered an order revoking defendant's probation. From this order, defendant appeals.

Preliminarily, we “consider the nature of a probation revocation hearing and the requisite burdens of proof. Our appellate courts have consistently held that proceedings to revoke probation are informal in nature such that the trial court is not bound by the strict rules of evidence. Additionally, once the State has presented competent evidence establishing a defendant's failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability tocomply with the terms. If the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation.” State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002) (citations omitted).

    At her first probation hearing, defendant admitted violating the terms of her original probation. The trial court entered an order finding defendant in violation, continuing her on probation with modified terms, and ordering defendant to return to court in ninety days for review of her compliance with the modified probationary sentence. On appeal, defendant argues that the trial court lacked jurisdiction to enter an order requiring defendant to return to court in ninety days for further review. We disagree.
    Defendant asserts that, given the specificity of the statutes governing probation revocation, it should be inferred that the trial court lacks jurisdiction to schedule a follow-up hearing as part of an order modifying probation. In support of her position, defendant cites cases addressing the trial court's authority to revoke probation after the probationary term has expired, or to enter a judgment that contradicts the express provisions of the relevant statute. However, defendant cites no authority suggesting that, upon defendant's admission of violation of probation, the trial court lacks the inherent authority to continue the defendant on probation, but require her to return for another review of her compliance with probation.     The State cites State v. Coltrane, 307 N.C. 511, 299 S.E.2d 199 (1983), as support of the trial court's authority to act in the instant case. In Coltrane, the defendant “appeared in superior court on 10 September 1981 for a probation revocation hearing. Defendant and her counsel were present during this hearing[,] . . . and on 11 September 1981 the court entered an order modifying the conditions of defendant's probation[.]” Id. at 512, 299 S.E.2d at 200. At a probation revocation hearing held a few weeks later, defendant's probation was revoked. On appeal defendant assigned error to the “failure of the [S]tate to provide her with notice of a probation revocation hearing held 28 September 1981.” Id. The North Carolina Supreme Court held that:
        The record shows that at the 10 September 1981 hearing, at which defendant was present and during which the conditions of defendant's probation were modified, Judge Hairston stated in open court that “[defendant] will have two weeks in which to find full time employment _ full time gainful employment. And if she does not, the case will be automatically returned to this Court next session, without further orders of this Court.” This statement was sufficient to notify defendant that if she failed to comply with the court's condition of probation, she would be required to appear for a hearing during the 28 September 1981 session of superior court.

Id. at 513, 299 S.E.2d at 201. Thus, in its discussion of the significance of the trial court's announcement of a second hearing, the North Carolina Supreme Court impliedly assumed the jurisdiction of the trial court to schedule such a hearing. Defendant argues that the precise issue of the trial court's authority to schedule the second hearing was not addressed in this case. However, theColtrane opinion is authority suggesting that the trial court in the instant case acted with authority. This assignment of error is overruled.

In her next two arguments, defendant argues that the trial court committed reversible error by revoking her probation based on violations of which defendant did not have the written notice required by statute. Defendant concedes, however, that she failed to object to the lack of notice at the hearing, and that this issue is not subject to review for plain error. Accordingly, defendant has waived appellate review of this issue.
Defendant urges us to exercise our authority under N.C.R. App. P. 2, to suspend the Rules of Appellate Procedure if necessary “'[t]o prevent manifest injustice to a party[.]' . . . Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice which appears manifest to the Court and only in such instances.” Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (quoting Rule 2) (emphasis added). We conclude that the instant case does not present exceptional circumstances justifying the application of Rule 2. These assignments of error are overruled.

    Defendant also argues that the trial court erred by finding and concluding that she had willfully violated the terms of her probation. We disagree.     The record supports the conclusion that defendant had failed to pay any money towards restitution, which defendant does not deny. At the hearing, defendant addressed the trial court. In her unsworn testimony, defendant told the court that she had no transportation, and that she had made great efforts to begin a new life free of drugs and crime. However, she offered no explanation for her failure to pay even one dollar towards restitution, and no evidence or testimony pertaining to an inability to pay any money towards this debt. In this regard:
        In a probation revocation proceeding based upon defendant's failure to pay a fine or restitution which was a condition of his probation the burden is upon the defendant to “offer evidence of his inability to pay money according to the terms of the [probationary] judgment.” . . . If defendant fails to offer evidence of his inability to pay money in accordance with the terms of the probationary judgment, “then the evidence which establishes that defendant has failed to make payments as required by the terms of the judgment is sufficient within itself to justify a finding by the judge that defendant's failure to comply was without lawful excuse.”

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)). We conclude that the trial court did not err by concluding that defendant violated her probation without lawful excuse. This assignment of error is overruled.
    We have considered defendant's remaining assignment of error and conclude it is without merit. The revocation of defendant's probation is
    Affirmed.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

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