An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 June 2006
STATE OF NORTH CAROLINA
No. 01 CRS 53380
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.
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.
Standard of Review
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
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
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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