Appeal by defendant from judgment entered 1 August 2005 by
Judge Christopher M. Collier in Iredell County Superior Court.
Heard in the Court of Appeals 16 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General Ann
Stone, for the State.
Brannon Strickland, PLLC, by Robin E. Strickland and Anthony
M. Brannon, for defendant-appellant.
Michael Wayne Stoner (defendant) appeals from the revocation
of his probation and the activation of his suspended sentence. For
the reasons stated below, we affirm the trial court's judgment.
On 18 August 2003, defendant pled no contest to assault with
a deadly weapon inflicting serious injury. The trial court
sentenced defendant to a term of twenty-three to thirty-seven
months imprisonment, then suspended the sentence and placed him on
supervised probation for thirty-six months. On 29 May 2005,
defendant's probation officer filed a violation report which
alleged that defendant had willfully violated his probation byleaving at approximately 0912 hrs, . . . his place of residence
. . . without having authorized leave time. Defendant returned at
1352 hrs and left again at 1402 hrs. At approximately 1459 hrs,
defendant returned to his residence. Probation Officer David Hines
left a note on defendant's door at approximately 1110 hrs
instructing defendant he had no leave time. On 24 June 2005,
defendant's probation officer filed a second violation report which
alleged that defendant had willfully violated two conditions of his
probation by testing positive for cocaine and by being $360.00 in
arrears on the monetary conditions of his probation.
At a probation violation hearing on 1 August 2005, defendant
through his appointed counsel admitted violating his probation.
After defendant consented to having the probation officer summarize
the matter, the probation officer testified defendant violated his
probation on 29 May 2005 by initially leaving his residence without
authorized leave time at 9:12 a.m. for three hours and fifty
minutes. Probation Officer David Hines left a note on defendant's
door at approximately 11:10 a.m. which informed defendant that he
had no leave time. Defendant returned at approximately 1:02 p.m.,
but left again at 2:02 p.m. for about thirteen minutes. The
probation officer further testified that defendant tested positive
for cocaine on 15 June 2005 and was $360.00 behind in making
payments on the monetary conditions of his probation.
At the conclusion of the hearing, the trial court stated in
open court that it was satisfied in its discretion that defendant
had violated the conditions set forth in the two violation reports. After finding that the violations were willful and without lawful
excuse and that they had occurred at a time prior to the expiration
of defendant's probation, the trial court determined that each
violation was sufficient cause for defendant's probation to be
revoked and ordered that defendant's suspended sentence be
activated. While the trial court's judgment entered that same day
incorporated the two violation reports by reference, the judgment
only listed the violation contained in the 29 May 2005 violation
report. The trial court then found the one violation to be a
sufficient basis upon which to revoke the probation and activate
the suspended sentence. From the trial court's judgment, defendant
Defendant presents two issues on appeal: (I) whether the
trial court erred in finding that defendant admitted to violating
his probation; and (II) whether the trial court failed to make
sufficient findings of fact before revoking defendant's probation,
in violation of N.C. Gen. Stat. 15A-1345(e).
Defendant first contends the trial court erred in finding that
he admitted the alleged probation violations. He argues the trial
court erroneously relied upon his defense counsel's assertions, and
he states he did not personally admit the violations nor did he
waive a hearing. Defendant's arguments are not persuasive.
Statements of an attorney are admissible against his client
provided that they have been within the scope of his authority andthat the relationship of attorney and client existed at the
time. . . . The burden is upon the client to prove lack of
authority to the satisfaction of the court. State v. Watson
N.C. 533, 538, 279 S.E.2d 580, 583 (1981) (citations omitted).
Because the record contains no indication that defense counsel was
acting contrary to defendant's wishes when he admitted the
violation of probation, defendant has failed to establish the
absence of authority on his attorney's part. This argument is
therefore overruled. As for defendant's argument that he did not
waive a probation revocation hearing, it is inapposite. The
hearing was not waived, but was in fact held by the trial court on
1 August 2005 to determine whether to revoke or extend
probation[.] N.C. Gen. Stat. § 15A-1345(e) (2005). This argument
is without merit.
Defendant next contends the trial court did not articulate
sufficient findings of fact to comply with N.C.G.S. § 15A-1345(e)
before revoking his probation. He argues while sufficient
evidence may have been presented to the trial court to support
proper findings of fact, the court simply failed to articulate
findings sufficient to comply with the mandates of N.C. Gen. Stat.
§ 15A-1345(e). Defendant's argument is not persuasive.
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.
State v. Tozzi
, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The State presented competent evidence in the form of the probation
officer's testimony as to the violations alleged in the two
violation reports. [T]he burden is on the defendant to present
competent evidence of his inability to comply; . . . otherwise,
evidence of defendant's failure to comply may justify a finding
that defendant's failure to comply was willful or without lawful
excuse. State v. Crouch
, 74 N.C. App. 565, 567, 328 S.E.2d 833,
Defendant declined to address the trial court and did not
testify as to any of the alleged violations. The State having
presented competent evidence of each of the violations and
defendant having presented no evidence to the contrary, the trial
court in its written judgment did not abuse its discretion by
finding that defendant had willfully and without lawful excuse
violated the condition of probation found in the 29 May 2005
violation report. Because the breach of any one condition is
sufficient grounds to revoke probation, see State v. Seay
, 59 N.C.
App. 667, 670-71, 298 S.E.2d 53, 55 (1982), appeal dismissed and
disc. rev. denied
, 307 N.C. 701, 301 S.E.2d 394 (1983), the trial
court did not err by revoking defendant's probation and activating
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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