STATE OF NORTH CAROLINA
v. Yadkin County
Nos. 03 CRS 2054-60
DANNY FRANK TALLEY
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Michael E. Casterline; and the Law Offices of J. Darren Byers,
P.A., by J. Darren Byers, for defendant appellant.
McCULLOUGH, Judge.
On 7 June 2004, defendant pled guilty pursuant to a plea
agreement to twenty-eight counts of obtaining property by false
pretenses. The convictions were consolidated into eight judgments.
Defendant was sentenced to one active term of six to eight months'
imprisonment, and seven consecutive suspended terms of six to eight
months' imprisonment. Defendant was placed on supervised probation
for sixty months and ordered to pay restitution in excess of
$500,000.
On 8 March 2005, probation violation reports were filed
alleging that defendant: (1) was in arrears on his monetary
obligation, and (2) had admitted taking a pain medication that hadnot been prescribed to him by a physician.
The trial court held a hearing on 28 March 2005. Defendant
admitted violating the conditions of his probation. Defendant did
not testify at the hearing. Counsel argued that defendant did not
have sufficient income to meet the monetary obligation of his
probation. The trial court found that defendant willfully violated
the conditions of his probation as alleged in the violation
reports. The trial court revoked defendant's probation and
activated his suspended sentences. Defendant appeals.
Counsel appointed to represent defendant has been unable to
identify any issue with sufficient merit to support a meaningful
argument for relief on appeal and asks that this Court conduct its
own review of the record for possible prejudicial error. Counsel
has also shown to the satisfaction of this Court that he has
complied with the requirements of Anders v. California, 386 U.S.
738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d
1377 (1967), and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665
(1985), by advising defendant of his right to file written
arguments with this Court and providing him with the documents
necessary for him to do so.
Defendant has not filed any written arguments on his own
behalf with this Court and a reasonable time in which he could have
done so has passed.
However, defendant, through attorney J. Darren
Byers, has filed a motion for appropriate relief. Counsel argues
that the original judgment was in error because the trial court set
restitution at an amount greater than defendant's ability to pay. This motion for appropriate relief is meritless.
At the outset, we note that defendant's motion for appropriate
relief presents impermissible collateral attack on the judgment of
the court. See State v. Rush, 158 N.C. App. 738, 741, 582 S.E.2d
37, 39 (2003)
. Defendant has neither moved to withdraw his plea
nor sought a writ of certiorari to review the original judgment.
He, therefore, has waived any challenge to the original judgment,
and may not attack it via a motion for appropriate relief. Id.
Furthermore, we note that failure to pay restitution was only
one of the grounds for revocation. The probation violation report
also alleged that defendant had admitted to taking medication that
was not prescribed for him by a physician.
This Court has stated
that:
Any violation of a valid condition of
probation is sufficient to revoke defendant's
probation. 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. The burden is on
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)
(citations omitted).
The probation officer's written report of the probation
violation was admissible in evidence. State v. White, 129 N.C.
App. 52, 58, 496 S.E.2d 842, 846 (1998), aff'd in part and disc.
review dismissed in part, 350 N.C. 302, 512 S.E.2d 424 (1999);
seealso State v. Dement, 42 N.C. App. 254, 255, 255 S.E.2d 793, 794
(1979)
("Sufficient evidence was presented in the verified and
uncontradicted violation report served upon the defendant to
support the trial court's findings and conclusions.")
.
Once the
State presented evidence that defendant had violated his probation,
the burden shifted to defendant to show excuse or lack of
willfulness. If the defendant fails to carry this burden, evidence
of failure to comply may justify a finding that the violation was
willful or without lawful excuse. State v. Crouch, 74 N.C. App.
565, 567, 328 S.E.2d 833, 835 (1985).
Here, defendant admitted the
violation, but offered no competent evidence to explain or to
excuse his probation violation. Thus, because defendant presented
no competent evidence showing excuse or lack of willfulness as to
his illegal use of medication, he failed to carry his burden.
Therefore, because there was sufficient grounds to revoke
defendant's probation, consideration of his remaining probation
violations are moot.
Moreover, in accordance with Anders, we have fully examined
the record to determine whether any issues of arguable merit appear
therefrom. We have been unable to find any possible prejudicial
error and conclude that the appeal is wholly frivolous.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
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