Appeal by defendant from judgment entered 6 June 2005 by Judge
James M. Webb in Yadkin County Superior Court. Heard in the Court
of Appeals 18 September 2006.
Roy Cooper, Attorney General, by Diane Martin Pomper,
Assistant Attorney General, for the State.
Robert W. Ewing for defendant-appellant.
MARTIN, Chief Judge.
On 7 June 2004, defendant pled guilty, pursuant to a plea
agreement, to eight counts of aiding and abetting obtaining
property by false pretenses. He was sentenced to an active
sentence of not less than six nor more than eight months on one
count, followed by seven consecutive sentences of not less than six
nor more than eight months, which were suspended and the defendant
was placed on probation for five years. As conditions of
probation, defendant was ordered to make restitution of $578,519.65
jointly and severally with a co-defendant and to perform 50 hours
of community service within the first 150 days of probation.
Defendant also signed an Acknowledgment and Monetary Conditions aspart of his plea agreement in which he agreed to pay $9,500 per
month beginning 30 days after release from his active sentence,
with $35,000 to be paid by 6 February 2005.
Defendant was released from prison on 24 December 2004. On 8
February 2005, the probation officer filed a violation report on
each count alleging that defendant had failed to pay the $35,000
and that defendant had not completed the required 50 hours of
community service. At the revocation hearing on 6 June 2005, the
State presented evidence that defendant had not completed the 50
hours of community service. The State also presented evidence that
defendant had paid only $400 of the $35,000 due as a condition of
his probation.
Defendant presented evidence that he had completed the 50
hours of community service by sitting and listening to court in
Surry County. Defendant and his mother also testified that he had
planned to pay the $35,000 from a gift he expected from his
grandmother. By the time that defendant had finished serving his
active sentence, his grandmother had passed away and her assets
remained in probate awaiting distribution. Defendant also
developed health conditions that prevented him from working, and he
filed for SSI in February 2005.
Upon consideration of the evidence presented at the hearing,
the trial court found that the defendant had willfully violated
both the community service condition and the monetary condition of
his probation. The court entered orders revoking probation and
activating the suspended sentences. Defendant appeals.
On appeal, the defendant makes the following two arguments:
(1) the trial court abused its discretion when revoking the
defendant's probation because the evidence proved that defendant's
failure to comply with the monetary terms of his probation was not
a willful violation; and (2) the trial court abused its discretion
when revoking the defendant's probation because the evidence did
not support a finding that the defendant did not complete his
community service requirement. We hold that the trial court did
not abuse its discretion and properly revoked probation based on
defendant's violation of the monetary condition.
We first note the settled law relating to these issues. “Any
violation of a valid condition of probation is sufficient to revoke
defendant's probation.”
State v. Tozzi, 84 N.C. App. 517, 521, 353
S.E.2d 250, 253 (1987).
The alleged violation by the defendant of
a valid condition [of probation] need not be
proven beyond a reasonable doubt.
All that is required is that the evidence
be such as to reasonably satisfy the judge in
the exercise of his sound discretion that the
defendant has violated a valid condition upon
which the sentence was suspended.
State v. Robinson, 248 N.C. 282, 285-86, 103 S.E.2d 376, 379 (1958)
(internal citations omitted). Once the State presents evidence
that defendant has violated a condition of probation, the defendant
then bears the burden of proving that he was unable to comply with
conditions of probation and, thus, the violation was not willful or
was with lawful excuse.
Tozzi, 84 N.C. App. at 521, 353 S.E.2d at
253. Although a defendant may present such evidence, “[t]he trialjudge, as the finder of the facts, is not required to accept
defendant's evidence as true.”
State v. Young, 21 N.C. App. 316,
321, 204 S.E.2d 185, 188 (1974). N.C. Gen. Stat. § 15A-1345(e)
requires the court, at a probation revocation hearing, to make
findings of fact to support its decision. N.C. Gen. Stat. § 15A-
1345(e) (2005). “[A]lthough we encourage trial courts to be
'explicit in [their] findings by stating that [they] ha[ve]
considered and evaluated [the] defendant's evidence . . . and found
it insufficient to justify breach of the probation condition, [a]
failure to do so does not constitute an abuse of discretion.'”
State v. Belcher, 173 N.C. App. 620, 625, 619 S.E.2d 567, 570
(2005) (quoting
State v. Williamson, 61 N.C. App. 531, 535, 301
S.E.2d 423, 426 (1983) (alterations in original)). We will not
disturb the trial court's decision to revoke probation unless there
is a manifest abuse of discretion.
State v. Tennant, 141 N.C. App.
524, 526, 540 S.E.2d 807, 808 (2000).
We apply this body of law to the defendant's contention that
the evidence did not support the court's finding that he willfully
violated the monetary condition of his probation. Evidence was
presented that defendant paid only $400 toward the $35,000 owed as
a condition of his probation. This evidence reasonably satisfied
the court that defendant violated a condition of his probation.
Defendant presented evidence of his inability to comply with this
probation condition arising from the death of his grandmother and
his recent medical condition. After considering this evidence, the
court, within its discretion, found that defendant violated themonetary condition of his probation willfully and without lawful
excuse. Defendant has shown no manifest abuse of discretion, and
we decline to disturb the trial court's finding and order revoking
probation.
Having concluded there was no abuse of discretion in the trial
court's decision that defendant had willfully violated his
probationary sentence by failing to satisfy the monetary conditions
of probation, we need not consider his remaining argument with
respect to the community service condition of probation. “The
breach of any single valid condition upon which the sentence was
suspended will support an order activating the sentence.”
State v.
Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973).
Affirmed.
Judges ELMORE and JACKSON concur.
Report per Rule 30(e).
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