STATE OF NORTH CAROLINA
v. Johnston County
Nos. 01CRS11348
MARK ANTONIO DUBOSE 01CRS56936
Attorney General Roy A. Cooper, III, by Assistant Attorney
General P. Bly Hall, for the State.
D. Tucker Charns for defendant-appellant.
HUNTER, Judge.
Mark Antonio Dubose (“defendant”) appeals from judgments
entered upon revocation of his probation. For the reasons stated
herein, we affirm.
On 28 November 2001, defendant pled guilty to possession with
intent to sell or deliver cocaine and possession of a firearm by a
convicted felon. The trial court sentenced him to consecutive
suspended prison terms totaling twenty-five to thirty-one months.
In reports filed 23 August 2004, defendant was charged with
violating five conditions of his probation, including the
requirement that he “[r]eport as directed by the court or his
probation officer to the officer at reasonable times and places[.]”
N.C. Gen. Stat. § 15A-1343(b)(3) (2005). Specifically, theviolation reports alleged that “defendant has failed to report to
the probation dep[artment] in any manner since [13 October 20]03.”
At a hearing held 14 March 2005, probation officer Jansen Lee
(“Lee”) testified that defendant reported to her office as
scheduled on 13 October 2003, failed to appear at his next
scheduled appointment on 27 October 2003, and completely
“disappeared” thereafter. Although defendant left Lee a phone
message on 27 October 2003, saying that he was working and would
have to reschedule his appointment, he did not contact or visit Lee
again. Defendant was arrested and jailed on other charges in July
of 2004. Lee next saw defendant when she visited him in jail on 20
January 2005.
At the beginning of defendant's testimony, the trial court
directed defense counsel to address the issue of “why [defendant]
didn't report as directed from October until he was jailed in
July[,]” in lieu of the other charged violations. When counsel
asked defendant whether he had reported to Lee between October of
2003 and July of 2004, he testified, “I can't recall. I think I
s[aw] her within the time frame of that, but I can't really
recall.”
Based upon the evidence, the trial court announced in open
court its finding that defendant “[w]illfully failed and refused to
contact his probation officer or report to his probation officer as
directed during the months of December 2003, January 2004, February
2004, March, April, May and June of 2004.” Finding defendant's
actions to be “a willful violation of the terms and conditions ofhis probationary judgments[,]” the court revoked his probation and
activated his suspended sentences. Defendant gave notice of appeal
in open court.
On appeal, defendant claims the trial court abused its
discretion by revoking his probation based upon written findings
that he violated the conditions of probation as alleged “in
paragraph(s) 1 in the Violation Report[s.]” Defendant points out
that paragraph 1 of the violation reports alleged that he failed
“to report to the probation dep[artment] in any manner since [13
October 20]03[,]” while the State's evidence showed that he left a
phone message for Lee on 27 October 2003.
“'[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)). Accordingly, our Courts have held that a probation
revocation hearing is an “informal or summary” proceeding in which
the formalities of a criminal trial do not adhere. State v.
Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 479 (1967); State v.
Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725 (1980). “All
that is required to revoke probation is evidence satisfying the
trial court in its discretion that the defendant violated a valid
condition of probation without lawful excuse.” State v. Tozzi, 84
N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). “'The findings of
the judge, if supported by competent evidence, and his judgment
based thereon are not reviewable on appeal, unless there is amanifest abuse of discretion.'” Tennant, 141 N.C. App. at 526, 540
S.E.2d at 808 (quoting State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d
148, 150 (1960)).
We find no abuse of discretion here. Although the trial
court's shorthand reference to paragraph 1 of the violation reports
does not account for the phone message left by defendant on 27
October 2003, this technical error in the temporal scope of the
court's written findings was completely harmless, affecting neither
the court's ultimate finding of defendant's willful violation of
probation nor its decision to revoke his probation based thereon.
Cf. State v. Crump, 277 N.C. 573, 583, 178 S.E.2d 366, 372 (1971)
(concluding that, although no evidence supported one of the trial
court's findings of fact on voir dire, the erroneous finding did
not undermine the court's ruling and did not prejudice the
defendant). The fact that defendant left a message for Lee on one
occasion after 13 October 2003 did not undermine the court's
finding that he willfully failed to report as directed to Lee at
reasonable times and places. The evidence showed defendant never
rescheduled the appointment he missed on 27 October 2003 and failed
to contact Lee in any manner for more than nine months thereafter.
Cf. State v. Coffey, 74 N.C. App. 137, 139, 327 S.E.2d 606, 607
(1985) (holding the evidence “support[ed] the court's finding that
defendant failed to report to the probation officer at reasonable
times and in a reasonable manner as directed by her probation
officer”). Moreover, the court's findings in open court reflect
that it elected to revoke defendant's probation and activate hissuspended sentences based upon his failure to report during the
period from December 2003 through June 2004.
The record on appeal includes an additional assignment of
error not addressed by defendant in his brief to this Court.
Pursuant to N.C.R. App. P. 28(b)(6), we deem it abandoned.
Affirmed.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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