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Probation and Parole_revocation_admission of violation--through counsel
There is no requirement that the court personally examine defendants about their
admissions of probation violations. Here, the trial court did not err by revoking defendant's
probation where he received notice of the alleged violations, a hearing was held, defendant
admitted through counsel two of the violations contained in the violation report, the court heard
from the probation officer, and defendant then addressed the court.
Attorney General Roy Cooper, by Assistant Attorney General
Charlene Bell Richardson, for the State.
Robin E. Strickland for defendant-appellant.
WYNN, Judge.
In North Carolina, a probation revocation hearing is not a
formal trial and, as such, due process does not require that the
trial court personally examine a defendant regarding his admission
that he violated his probation.
(See footnote 2)
Here, Defendant Thomas Sellers
contends that activation of his prison sentence was in error
because he did not waive a violation hearing nor did he personallyadmit he had violated the conditions of his probation. Because we
find that a hearing was held and that Defendant's admission through
counsel that he had violated his probation conditions was
sufficient to meet due process, we affirm the activation of his
sentence.
On 11 January 2006, Defendant pled guilty to common law
robbery and was sentenced to a term of fourteen to seventeen
months' imprisonment. The trial court suspended Defendant's
sentence and placed him on supervised probation for thirty-six
months.
On 15 May 2006, a probation violation report was filed,
alleging that Defendant (1) had tested positive for marijuana, and
(2) was in arrears on his court and supervision fees. On 21 June
2006, the trial court modified Defendant's probation and required
him to participate in a “structured day program” for six to twelve
months.
Nevertheless, on 24 August 2006, another probation violation
report was filed, asserting that Defendant had: (1) tested positive
for marijuana on five different occasions; (2) violated his curfew
on two occasions; (3) violated the rules of the structured day
program by threatening to harm a staff member and by making
sexually inappropriate remarks; and (4) failed to attend the GED
program.
The trial court held a probation violation hearing in
Mecklenburg County Superior Court on 13 and 14 September 2006.
Defendant, through counsel, admitted to the first and secondviolations alleged in the report but denied the third and fourth
allegations. The trial court also heard from Defendant's probation
officer regarding the alleged violations. Defendant then addressed
the court, admitted that he uses drugs, and apologized for
“whatever I did in Structured Day Program.” The trial court found
that Defendant willfully violated the terms of his probation,
revoked Defendant's probation and activated his suspended sentence.
Defendant now appeals, arguing that the trial court erred by
finding that he waived the probation violation hearing and admitted
to violating his probation. Defendant contends that the trial
court relied on the assertions of his counsel and failed to make an
adequate personal inquiry regarding his waiver and admissions.
Defendant argues that these decisions were personal decisions, akin
to pleading guilty, that cannot be made without his consent, and
that he was prejudiced by deprivation of his due process and
statutory rights. We disagree.
“A proceeding to revoke probation is not a criminal
prosecution, and we have no statute in this State requiring a
formal trial in such a proceeding. Proceedings to revoke probation
are often regarded as informal or summary.” State v. Hewett, 270
N.C. 348, 353, 154 S.E.2d 476, 479 (1967). The “minimum
requirements of due process in a final probation revocation
hearing” require:
(1) a written notice of the conditions
allegedly violated;
(2) a court hearing on the violation(s)
including:
(a) a disclosure of the evidence against
him, or,
(b) a waiver of the presentation of the
State's evidence by an in-court admission
of the willful or without lawful excuse
violation as contained in the written
notice (or report) of violation,
(c) an opportunity to be heard in person
and to present witnesses and evidence,
(d) the right to cross-examine adverse
witnesses;
(3) a written judgment by the judge which
shall contain
(a) findings of fact as to the evidence
relied on,
(b) reasons for revoking probation.
State v. Williamson, 61 N.C. App. 531, 533-534, 301 S.E.2d 423, 425
(1983) (citations omitted).
Here, Defendant received notice of his alleged probation
violations, and a hearing was held. Defendant admitted to the
first two violations contained in the probation violation report.
Unlike when a defendant pleads guilty, there is no requirement that
the trial court personally examine a defendant regarding his
admission that he violated his probation. Cf. N.C. Gen. Stat. §
15A-1022 (2005). Therefore, we conclude there was no violation of
Defendant's right to due process or any statutory violation. This
assignment of error is accordingly overruled.
Defendant's remaining assignments of error have not been
brought forth in his brief, and they are thus deemed abandoned.
N.C. R. App. P. 28(b)(6).
Affirmed. Judges BRYANT and ELMORE concur.
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