STATE OF NORTH CAROLINA
v. Pender County
Nos. 05 CRS 2923-24
JERMAINE DAVON GUSTUS,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General J.
Philip Allen, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
appellant.
HUDSON, Judge.
Defendant appeals from the revocation of his probation and the
modification of the conditions of his remaining probation. We
affirm.
Although the underlying judgments are not included in the
record on appeal, it appears from other documents in the record
that on 31 March 2005 defendant was convicted of two drug offenses
and received suspended sentences of 10 to 12 months and 16 to 20
months. Defendant was placed on supervised probation for 36 months
and was under electronic house arrest for at least a portion of his
probation period. On 6 July 2005, defendant's probation officer
filed a probation violation report alleging that defendant hadviolated his probation conditions as follows: (1) defendant tested
positive for marijuana on 27 May 2005; (2) defendant tested
positive for marijuana and cocaine on 28 June 2005; and (3) cocaine
and two small pipes were found during a search of defendant's
bedroom and bathroom on 6 July 2005. Defendant's probation officer
filed two additional probation violation reports on 12 August 2005,
alleging defendant had been charged with possession of a Schedule
II controlled substance on 6 July 2005 and was convicted of that
offense in Pender County on 10 August 2005.
During a hearing on 22 August 2005, defendant admitted the
allegations in the probation violation reports. Defendant's
probation officer recommended that defendant be placed back on
electronic house arrest and be ordered to participate in a 90-day
drug and alcohol treatment program. The trial court, however,
revoked defendant's probation in Pender County File No. 05 CRS 2923
and activated his 10 to 12 month sentence. The trial court also
modified the conditions of his probation in Pender County File No.
05 CRS 2924 by imposing additional conditions of probation,
including ordering defendant to report to his probation officer
within forty-eight hours of his release from the Department of
Corrections, submitting to warrantless searches, and submitting to
drug testing.
In his sole argument on appeal, defendant contends that the
trial court abused its discretion by revoking his probation in 05
CRS 2923 and by modifying the conditions of his probation in 05 CRS
2924. We disagree. This Court has stated: 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)(internal citations omitted).
Here, defendant admitted he violated the conditions of his
probation. Nevertheless, he argues that the trial court abused its
discretion by failing to adequately consider alternatives to
activating his suspended sentence and by imposing additional
conditions on his remaining probation. In particular, defendant
argues that the trial court should have followed his probation
officer's recommendation that he be placed back on electronic house
arrest and be ordered to participate in the 90-day treatment
program for his probation violations. As acknowledged by
defendant, however, the trial court was not required to consider
alternatives to revocation of his probation. See State v. Jones,
78 N.C. App. 507, 337 S.E.2d 195 (1985). Accordingly, this
assignment of error is overruled.
Affirmed.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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