An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 October 2006
STATE OF NORTH CAROLINA
v. Guilford County
No. 04 CRS 85958
Appeal by defendant from judgment entered 18 October 2005 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 2 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
John W. Mann, for the State.
James N. Freeman, Jr., for defendant-appellant.
Deshon Manuel (defendant) appeals from judgment entered
revoking his probation and activating his suspended sentence. We
Although the underlying judgment is not included in the record
on appeal, it appears from other documents before us that defendant
pled guilty to possession of cocaine in October 2004. Defendant
received a suspended prison sentence of eight to ten months and was
placed on supervised probation.
On 15 June 2005 after being released from prison on an
unrelated charge, defendant began intensive probationary
supervision. Defendant's probation officer, Angela Williams(Officer Williams), met with defendant shortly after his release
from prison and provided the conditions of defendant's probation,
including: (1) completing community service; (2) appearing at
scheduled visits with his probation officer; (3) paying court
costs; and (4) providing proof of obtaining or retaining
On 29 August 2005, Officer Williams filed a probation
violation report and addendum alleging defendant violated the
conditions of his probation by failing to, inter alia: (1)
complete his community service requirements; (2) appear at
scheduled visits with his probation officer; (3) be at his
residence during curfew hours; (4) pay court costs; and (5) provide
proof of obtaining or retaining employment.
At a probation hearing held on 18 October 2005, the State
informed the trial court that it was proceeding only on violations
1, 2, 4, and 5, as set out above. The trial court asked defense
counsel whether defendant admitted wilfully violating his probation
without lawful excuse with respect to allegations 1, 2, 4, and 5,
as alleged in the violation report. Defense counsel responded,
[h]e admits the violations and that they are without lawful
Officer Williams testified at the hearing that she recommended
defendant's probation be revoked. Thereafter, defense counsel
represented to the trial court that defendant was unable to fulfill
his community service requirements and attend visits with his
probation officer because of problems with his mother anddifficulties obtaining transportation. Defense counsel also
explained that defendant was unable to show proof of obtaining
employment because he was working under the table at a janitorial
service and the company had refused to write him a letter verifying
his employment. Defense counsel represented to the court that
defendant's family would assist defendant in paying off his
monetary obligations and argued that defendant's probation should
The trial court found defendant had wilfully violated
conditions of his probation without lawful excuse. The trial court
revoked defendant's probation and activated his suspended sentence.
Defendant argues: (1) insufficient evidence was presented
that his failure to comply with the conditions of probation were
wilful or without lawful excuse and (2) the trial court erred by
failing to make sufficient findings of fact showing it considered
his purported evidence that his probation violations were not
wilful, as required by N.C. Gen. Stat. § 15A-1345(e).
III. Revocation Hearing
Defendant argues 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 conditionon which the sentence was suspended. State v. Tozzi, 84 N.C. App.
517, 520-21, 353 S.E.2d 250, 252-53 (1987) (quotation omitted).
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. Id. at 521, 353 S.E.2d at 253.
In a proceeding to revoke probation, if a defendant fails to
offer evidence of his inability to comply, evidence establishing
his non-compliance is sufficient to justify a finding that the
failure was wilful or without lawful excuse. State v. Bryant, 73
N.C. App. 647, 648, 326 S.E.2d 910, 911 (1985). Here, defendant,
through counsel, admitted that he violated four conditions of his
probation without lawful excuse. This admission alone is
sufficient to support the trial court's finding that defendant
violated conditions of his probation without lawful excuse.
Defendant argues he presented evidence showing his violations
were not wilful. Defendant did not present any evidence at the
probation violation hearing. Defendant's alleged inability to
comply with the conditions of his probation was relayed to the
Court through the statements of his counsel at the hearing.
We have previously held that defense counsel's statements in
a probation revocation hearing are not competent evidence. State
v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985) (Our
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 thetrial court in such hearings must be based on competent evidence.)
This Court explicitly stated it was aware that formal rules of
evidence do not apply at revocation hearings. Id. Defendant
admitted he violated four conditions of his probation without
lawful excuse and failed to present any competent evidence of his
inability to comply with the conditions of his probation. We hold
the trial court did not abuse its discretion in revoking
IV. Findings of Fact
Defendant contends the trial court erred by failing to make
sufficient findings of fact showing it considered his purported
evidence that his probation violations were not wilful, as required
by N.C. Gen. Stat. § 15A-1345(e). N.C. Gen. Stat. § 15A-1345(e)
(2005) requires the trial court to make findings to support its
decision to revoke a defendant's probation. The written judgment
contains express findings of fact showing it considered defendant's
evidence and arguments:
After considering the record . . . together
with the evidence presented by the parties and
the statements made on behalf of the State and
the defendant, the Court finds . . . the
condition(s) violated and the facts of each
violation are as set forth in paragraph(s) 1,
2, 4, 5 in the Violation Report or Notice
. . . .
Each violation is, in and of itself, a
sufficient basis upon which this Court should
revoke probation and activate the suspended
These findings of fact are sufficient to support the trialcourt's conclusion to revoke defendant's probation and activate his
suspended sentence. This assignment of error is overruled.
The trial court made sufficient findings of fact to support
its conclusion to revoke defendant's probation and activate his
suspended sentence. Defendant failed to show the trial court
abused its discretion revoking his probation. The trial court's
judgment is affirmed.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***