Appeal by defendant from a judgment dated 8 September 2005 by
Judge W. Erwin Spainhour in Richmond County Superior Court. Heard
in the Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Donald R. Teeter, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
Terry Glenn Taylor (defendant) appeals the revocation of his
probation and activation of his sentences by judgment dated 8
September 2005, entered after a hearing before the Honorable W.
Erwin Spainhour. We affirm the trial court's judgment.
Facts and Procedural History
Defendant pled guilty in Scotland County District Court on 6
May 2004 to driving while impaired. The court sentenced defendant
to a term of imprisonment of six months. The court suspended the
sentence and placed defendant on supervised probation for twenty-
four months. The Richmond County Probation Office subsequently
assumed supervision of defendant as a resident of that county. On 12 July 2004 and 7 December 2004, defendant's probation
officer filed violation reports. The Richmond County District
Court on 24 February 2005 conducted a hearing on both reports and
found that defendant committed the violations alleged in the report
dated 12 July 2004. The court revoked probation and activated
Defendant appealed to the Richmond County Superior Court for
a hearing de novo
. At the conclusion of the hearing on 8 September
2005, the Richmond County Superior Court found that defendant
willfully committed the violation alleged in the 7 December 2004
violation report. The court revoked probation and activated
defendant's sentence. Defendant appeals.
Defendant contends the court abused its discretion by revoking
probation because the evidence showed that defendant's failure to
comply with the terms of his probation was not willful. The
violation report filed 7 December 2004 charged that defendant
willfully violated the regular condition of probation requiring he
[r]emain within the jurisdiction of the Court unless granted
written permission to leave by the Court or the probation officer
in that on 7 October 2004, defendant failed to appear in Richmond
County District Court for a probation violation hearing[,]
defendant has eluded supervision and is unable to be located within
the jurisdiction[, and] defendant's whereabouts are unknown. The
court found that defendant willfully and without lawful excuse
committed the foregoing violation. A suspended sentence may be activated if the evidence be such
as to reasonably satisfy the judge in the exercise of his sound
discretion that the defendant has willfully violated a valid
condition of probation or that the defendant has violated without
lawful excuse a valid condition upon which the sentence was
suspended. State v. Hewett
, 270 N.C. 348, 353, 154 S.E.2d 476,
480 (1967). Evidence of the defendant's failure to comply with a
term or condition of probation is sufficient to support a finding
that the violation was willful or without lawful excuse unless the
defendant can successfully carry his burden of showing lawful
excuse or lack of willfulness. State v. Crouch
, 74 N.C. App. 565,
567, 328 S.E.2d 833, 835 (1985). The trial judge, as the fact
finder, is not required to accept the defendant's testimony or
evidence as true. State v. Young
, 21 N.C. App. 316, 321, 204
S.E.2d 185, 188 (1974). Evidence which contradicts or disputes the
prosecution's evidence merely creates credibility issues for the
trial judge to resolve. State v. Darrow
, 83 N.C. App. 647, 649,
351 S.E.2d 138, 140 (1986).
A decision addressed to the discretion of a trial judge will
not be disturbed unless it is shown that the ruling could not have
been the result of a reasoned decision. State v. Wilson
, 313 N.C.
516, 538, 330 S.E.2d 450, 465 (1985) (citation omitted). Judicial
discretion implies conscientious judgment, not arbitrary or willful
action. It takes account of the law and the particular
circumstances of the case, and 'is directed by the reason and
conscience of the judge to a just result.' Hewett
, 270 N.C. at353, 154 S.E.2d at 480 (quoting Langnes v. Green
, 282 U.S. 531,
541, 75 L.E. 520, 526 (1931)). Probation in lieu of an active
sentence is an act of grace extended to one convicted of a crime.
State v. Duncan
, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). A
probationer carries the keys to his freedom in his willingness to
comply with the court's sentence. State v. Robinson
, 248 N.C.
282, 285, 103 S.E.2d 376, 379 (1958).
The record shows that following imposition of the probationary
judgment by the Scotland County District Court on 6 May 2004,
supervision of defendant was transferred to Richmond County based
upon defendant's stating his residence address as 301 Vance Street
in Hamlet located in Richmond County. Defendant's probation
officer made several unsuccessful attempts to contact defendant at
this address and on 12 July 2004 filed the first violation report.
This report ordered defendant to appear in Richmond County District
Court on 9 September 2004. Defendant appeared in court on 9
September 2004 and executed a waiver of counsel. The court
continued the probation violation hearing to 7 October 2004.
Defendant's probation officer testified that defendant failed to
appear for this hearing. On 12 October 2004 a magistrate issued a
warrant for defendant's arrest due to defendant's failure to appear
in court on 7 October 2004. The warrant listed defendant's address
as 301 Vance S. Hamlet NC 28345. The return of service of this
warrant indicates that it was not served because the officer making
return was told defendant was living with his mother in Laurinburg,
located in Scotland County. A probation surveillance officer located defendant on 16
December 2004 and transported defendant from the Scotland County
Jail to Richmond County on 19 December 2004 to appear before a
magistrate. The magistrate assigned a date for defendant to appear
for a hearing on the charge the next month. On 31 January 2005 a
Richmond County magistrate issued another warrant for defendant's
arrest, alleging defendant failed to appear for a hearing on 27
January 2005. The return of service, dated 5 February 2005,
indicated that defendant was residing in Laurinburg with his
mother. On 24 February 2005 the Richmond County District Court
revoked defendant's probation and defendant appealed to the
superior court. A Richmond County magistrate issued yet another
warrant for defendant's arrest on 12 August 2005 alleging defendant
failed to appear in court on 8 August 2005.
The foregoing shows that defendant persistently failed to
appear for court hearings and failed to be at the address of record
when his probation officer visited. There is no evidence that
defendant ever notified his probation officer of his change of
address or that defendant ever received the prior permission of the
court or of his probation officer to move from Richmond County to
Scotland County. The foregoing conduct is not consistent with that
of a person who wants to retain his freedom.
We hold the court did not abuse its discretion in revoking
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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