STATE OF NORTH CAROLINA
v. Pender County
Nos. 05 CRS 2923-24
JERMAINE DAVON GUSTUS,
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.
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.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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