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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 20 March 2007
STATE OF NORTH CAROLINA
No. 03 CRS 220457
THOMAS OSBORNE, JR.
Appeal by Defendant from judgment entered 8 November 2005 by
Judge W. Robert Bell, in Superior Court, Mecklenburg County. Heard
in the Court of Appeals 6 February 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Olga Vysotskaya, for the State.
Haakon Thorsen, for the defendant-appellant.
In a probation revocation hearing,
[t]he evidence need only
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.
(See footnote 1)
Here, because the
record shows sufficient evidence supporting the trial court's
determination that Defendant willfully violated his probation, we
affirm the trial court's order revoking Defendant's probation.
Defendant Thomas Osborne, Jr. was convicted of taking indecent
liberties with a child in June 2004. The trial court sentenced him
to a suspended term of eighteen to twenty-two months imprisonmentand placed him on supervised probation for thirty-six months with
special conditions including participating in a sex offender
On 29 September 2005, a probation violation report was filed
alleging that Defendant had failed to comply with the terms of his
probation to (1) pay his monetary obligations; (2) notify his
probation officer of a change in address; and (3) comply with sex
offender treatment. Following a hearing, the trial court found
that Defendant willfully violated his probation for his failure to
participate in sex offender treatment, revoked Defendant's
probation, and activated the suspended sentence.
Defendant appeals contending that the trial court: (I) had
insufficient evidence that he willfully violated his probation and
(II) made a clerical mistake in recording its judgment.
Defendant first argues that the trial court erred in revoking
his probation because there was insufficient evidence that he
willfully violated the terms of his special probation. We
Probation is an act of grace by the State to one convicted of
a crime. It is a matter of discretion with the trial court. The
matter is not governed by the rules of a criminal trial.
Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725 (1980) (citing
State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967)). Hence,
"[t]he evidence needs only [to
] reasonably [satisfy] the trial
judge in the exercise of his sound discretion that the defendanthas violated a valid condition on which the sentence was
State v. Belcher,
173 N.C. App. 620, 624, 619 S.E.2d
, 570 (2005) (citation omitted).
The burden is on [the]
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 . . . was wilful or without lawful excuse.
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987)
State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835
Moreover, "[t]he findings of the judge, if supported by
competent evidence, and his judgment based thereon are not
reviewable on appeal, unless there is a manifest abuse of
State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d
807, 808 (2000) (quoting State v. Guffey, 253 N.C. 43, 45, 116
S.E.2d 148, 150 (1960)). An abuse of discretion occurs when
court's ruling is manifestly unsupported by reason or is so
arbitrary that it could not have been the result of a reasoned
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527
(1988)(citing State v. Parker 315 N.C. 249, 337 S.E.2d 497 (1985)
Here, Defendant challenges the trial court's finding of fact
that he failed to participate in his sexual offender treatment.
The terms of Defendant's special probation, required him to:
[p]articipate in a sexual abuse treatment
program approved by the supervising officer
and complete the same to the full satisfaction
of the treatment provider. Comply with all
programs, including the polygraph
examinations, to be used as a tool inconjunction with the treatment plan developed
by the treatment provider. Program
participation is defined as attendance at all
meetings, prompt payment of fees, admission of
responsibility for his/her offense and
progress toward reasonable treatment goals.
Defendant contends that he received positive feedback from Sunpath
Behavioral Health, the agency administering the sexual abuse
treatment, because he did not receive any unsatisfactory grades in
his treatment areas. Moreover, Defendant states he participated in
individual treatment sessions, and that this treatment exceeded his
probation requirement. Defendant acknowledges that he missed some
of his group therapy on Tuesdays due to work and illness; however,
he contends that he voluntarily made arrangements to attend
additional individual therapy on Fridays. Defendant contends that
the trial court erred when it violated the terms of his probation
because he was doing more than minimum required by the terms of his
The State offered evidence to show that Defendant missed
several sexual abuse treatment sessions; failed to attend these
sessions regularly; and was dismissed from the sexual abuse
Moreover, the trial judge received a verified
report, which outlined Defendant's violations,
from his probation
officer. See State v. Duncan, 270 N.C. 241, 154 S.E.2d 53
(holding that a verified report by State probation officer is
Although Defendant presented evidence to show that he
participated in his sexual abuse treatment, the trial court had
competent evidence to support its finding of fact that Defendantfailed to attend his sexual abuse treatment meetings regularly and
failed to comply with the program. This Court has held that,
f]indings of fact which are supported by competent evidence are
binding on appeal . . . even if there is evidence to the contrary.
State v. Darrow,
83 N.C. App. 647, 649, 351 S.E.2d 138
, 139 (1986)
(citations omitted). Moreover, [
a]ny violation of a valid
condition of probation is sufficient to revoke defendant's
Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253.
Because there was sufficient evidence for the trial court to find
that Defendant violated a condition of his probation and we can
discern no abuse of the trial court's discretion in revoking
Defendant's probation, Defendant's assignment of error is rejected.
Defendant last argues that this case should be remanded
because there were clerical mistakes in the recording of the trial
court's judgment. We agree.
Defendant argues, and the State concedes, that the judgment
contains two errors. The judgment states that: (1) Defendant
waived his probation violation hearing and admitted to violating
his probation and (2) the trial court found Defendant violated all
three grounds alleged in the violation report. However, the record
indicates that Defendant denied the violations, a probation hearing
took place, and the trial court only found that Defendant violated
the third ground alleged in the violation report.
It is universally recognized that a court of record has the
inherent power and duty to make its records speak the truth."
State v. Linemann
, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784
State v. Cannon
, 244 N.C. 399, 403, 94 S.E.2d 339,
Accordingly, we remand this matter for the correction
of the clerical errors to show that (1)
a hearing was held before
the Court and, by the evidence presented, the Court is reasonably
satisfied in its discretion that the defendant
violated each of the
conditions of the defendant's probation as set forth. . . . (AOC-
CR-607; R. p. 19) and (2) Defendant violated paragraph 3 in the
Violation Report filed 29 September 2005.
Affirmed in part and remanded in part for corrections.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
State v. Belcher
173 N.C. App. 620, 624, 619 S.E.2d 567
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