STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 03 CRS 252301
SYLVESTER STEWART MILLER
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Lauren M. Clemmons, for the State.
Anne Bleyman for defendant appellant.
JACKSON, Judge.
On 17 November 2003, the Mecklenburg County Grand Jury issued
an indictment charging Sylvester Miller (“defendant”) with one
count of conspiracy to commit robbery with a dangerous weapon.
Thereafter, on 5 January 2004, the grand jury issued an amended
indictment for that charge, adding the names of defendant's co-
conspirators and correcting the spelling of the victim's name. On
that same date, the grand jury also issued two separate indictments
each charging defendant with one count of robbery with a dangerous
weapon.
On 7 June 2004, defendant pled guilty to common law robbery
and conspiracy to commit robbery with a dangerous weapon pursuantto a plea arrangement with the State. Pursuant to the terms of the
plea agreement, the State dismissed one of the charges against
defendant for robbery with a dangerous weapon. The trial court
sentenced defendant to twelve to fifteen months imprisonment for
common law robbery and to a consecutive term of twenty-nine to
forty-four months imprisonment for conspiracy to commit robbery
with a dangerous weapon. The trial court suspended the sentence
for the conspiracy conviction, placed defendant on supervised
probation for thirty-six months, and ordered defendant to pay court
costs, a fine, and restitution. The trial court also imposed
regular conditions of probation, including requiring that defendant
remain suitably employed, report to his probation officer at
reasonable times, and remain within the jurisdiction of the court
unless given permission to leave. Further, the trial court imposed
special conditions of probation, including requiring defendant to
pass the General Education Development Test during the first
eighteen months of probation, report for initial evaluation by a
licensed local agency within thirty days for further treatment or
counseling, and submit to the intensive supervision program for a
period of six months.
After serving his sentence for common law robbery, defendant
began his probationary period. He reported for intensive probation
on one occasion in December 2004, but failed to report again. On
11 February 2005, Probation Officer Katherine Williams (“Officer
Williams”) filed a probation violation report alleging defendant
violated six conditions of his probation in that he: (1) failed toreport as directed to the probation officer by missing scheduled
office visits on 22 December 2004, 29 December 2004, 5 January
2005, and 12 January 2005; (2) missed curfew on eight separate
dates from 15 December 2004 through 11 January 2005 in violation of
a special condition of his probation; (3) failed to make the
monetary payments in the sum of $778.16, as ordered by the trial
court; (4) failed to make any of the monthly probation supervision
fees, totaling $210.00 at the time the probation violation report
was filed; (5) failed to notify his probation officer of his change
in address; and (6) failed to notify his probation officer that he
failed to obtain or retain employment.
A probation violation hearing was held on 25 August 2005 in
Mecklenburg County Superior Court. At the beginning of the
hearing, the trial court asked defense counsel if defendant
admitted the six allegations contained in the probation violation
report and if defendant waived a formal reading of it. Defense
counsel replied, “We waive a formal reading. My client has
authorized me to tender an admission to the allegations.”
Thereafter, at the request of the trial court, Probation
Officer Williams commented about the allegations in the probation
violation report, stating the last time she saw defendant was in
December 2004 when he reported once for intensive probation.
Officer Williams further stated that defendant moved from his
residence without informing her. Based upon his violations,
Officer Williams recommended defendant's probation be revoked.
Defense counsel represented to the trial court that whendefendant began his probation after serving his sentence for the
common law robbery conviction, he was homeless and unemployed, he
did not have any money and he did not know what to do to prevent
himself from immediately going back into custody. Defense counsel
further represented that at the time of the probation violation
hearing, defendant had a place to live and his mother and
girlfriend were supporting him. Defense counsel stated that
defendant routinely had called him to update him on defendant's
living arrangements and attempts to find work. Accordingly,
defense counsel requested the trial court allow defendant an
opportunity to continue with an intensive period of probation or
electronic house arrest.
The trial court found defendant willfully had violated
conditions of his probation. Accordingly, the trial court revoked
defendant's probation and activated his suspended sentence.
Defendant appeals from the revocation of his probation. Based upon
our review of the record, we hold the trial court did not err and,
therefore, we affirm.
Defendant first contends the indictment charging him with
conspiracy to commit robbery with a dangerous weapon is deficient
in that it fails to allege the elements of the conspired offense,
robbery with a dangerous weapon. This Court has explained that “a
conspiracy indictment need not describe the subject crime with
legal and technical accuracy because the charge is the crime of
conspiracy and not a charge of committing the subject crime.”
State v. Nicholson, 78 N.C. App. 398, 401, 337 S.E.2d 654, 657(1985). “'A criminal conspiracy is an agreement between two or
more persons to do an unlawful act or to do a lawful act in an
unlawful way or by unlawful means.'” State v. Jackson, 103 N.C.
App. 239, 244, 405 S.E.2d 354, 357 (1991) (citation omitted),
aff'd, 331 N.C. 113, 413 S.E.2d 798 (1992).
Here, the amended indictment charged that defendant:
did unlawfully, willfully, and feloniously
conspire with Allison Reece, Richard Long,
Darius Coaldwell, and Kevin Marvelis to commit
the felony of robbery with a dangerous weapon,
G.S. 14-87, against Michel Fernald.
The indictment sufficiently charged that an agreement between two
or more persons existed to commit an unlawful act. Accordingly, we
overrule this assignment of error.
Next, defendant contends there was insufficient evidence to
support the trial court's finding and conclusion that defendant's
failure to comply with the conditions of probation was willful or
without lawful excuse because he purportedly offered competent
evidence that he was unable to comply with the conditions
immediately after his release from prison. We disagree.
“[E]vidence at a probation revocation hearing 'need be such
that reasonably satisfies the trial judge in the exercise of his
sound discretion that the defendant has violated a valid condition
on which the sentence was suspended.'” State v. Tozzi, 84 N.C.
App. 517, 520-21, 353 S.E.2d 250, 252-53 (1987) (citation omitted).
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 trialcourt 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.
Id. at 521, 353 S.E.2d at 253 (internal citations omitted).
Here, defendant admitted he violated the conditions of his
probation as set forth in the probation violation report. Further,
Officer Williams' written report of defendant's probation
violations was admissible into evidence. See State v. White, 129
N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998), aff'd in part, disc.
review dismissed in part, 350 N.C. 302, 512 S.E.2d 424 (1999);
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.”) (citing State
v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967)). Thus, there was
competent evidence in the record to support the trial court's
finding and conclusion that defendant violated his probation.
Once the State presented evidence that defendant had violated
conditions of his probation, the burden shifted to defendant to
present competent evidence of his inability to comply with the
conditions. Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. If a
defendant fails to carry this burden, evidence of failure to comply
may justify a finding the violation was willful or without lawful
excuse. Id. Here, defendant presented no evidence. Rather, his position
with respect to his inability to comply immediately with the
conditions of his probation was related through the statements of
his counsel. This Court previously has held that defense counsel's
statements in a probation revocation hearing were not competent
evidence. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833,
835 (1985) (stating “[o]ur review of representative cases discloses
no circumstances where statements of counsel have been treated as
evidence, while the cases repeatedly state that the findings and
conclusions of the trial court in such hearings must be based on
competent evidence.”) In reaching that decision, this Court
explicitly stated it was aware that formal rules of evidence did
not apply at revocation hearings. Id. Because defendant admitted
the allegations in the probation violation report and failed to
present any competent evidence of his inability to comply with the
conditions of his probation, we overrule this assignment of error.
Accordingly, we conclude the trial court did not abuse its
discretion in revoking defendant's probation.
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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