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An unpublished opinion of the North Carolina Court of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.
NO. COA06-609
NORTH CAROLINA COURT OF APPEALS
Filed: 20 March 2007
STATE OF NORTH CAROLINA
v .
Lee
County
Nos.
02CRS054325-27
BOBBY DARYL McGIRT
Appeal by defendant from judgments entered 12 December 2005 by Judge Franklin F. Lanier in Lee County Superior Court. Heard in the Court of Appeals 23 January 2007.
Attorney
General Roy A. Cooper, III, by Assistant Attorney General Floyd M. Lewis, for
the State.
Michael J. Reece for defendant-appellant.
HUNTER, Judge.
Bobby Daryl McGirt (“defendant”) appeals the revocation
of his probation and the activation of his suspended sentences. Defendant
presented the following issues for our consideration: (1) did the trial court
abuse its discretion in revoking defendant's probation, and (2) did defendant
receive ineffective assistance of counsel when his trial counsel admitted a
probation violation. After careful consideration, we affirm.
Defendant was alleged to have violated each of his
three probationary judgments by: (1) failing to report to the Wake County
Probation and Parole office within twenty-four hours of his release from jail,
(2) failing to pay restitution, and (3) failing to contact Wake County Probation
and absconding. His trial counseldenied the first and third allegations but
admitted to the second, specifically that defendant had willfully failed to
make restitution on each case.
Defendant testified that while still in jail he called
the Wake County Probation office several times in order to be processed out and
released from jail. He also testified that jail staff had called Wake County
Probation on his behalf but there was still no contact. Before he could make
contact, his Wake County charges were concluded on 30 June 2004, and he was
finally released from the Wake County jail on 29 July 2004. Defendant, who gave
a Wake County address, was told to report to a Wake County Probation office
within twenty-four hours of his release from jail. Defendant never made contact
with Wake County Probation after his release from jail, and was eventually
arrested for violating probation.
During defendant's probation violation hearing, he
testified that he was prepared to pay all restitution owed immediately. On
cross, defendant stated that he would not have contacted probation again had he
not been picked up on 31 October 2005. Defendant also acknowledged that he had
been on probation before.
Judge Lanier found that defendant had willfully and
without lawful excuse violated each of the conditions of his probation, revoked
probation, and activated defendant's suspended sentences.
I.
Defendant first argues that the State failed to
independently prove defendant's alleged probation violation. We disagree
andhold that the trial judge did not err in revoking defendant's probation and
reactivating his suspended sentence.
To determine whether the State has produced sufficient
evidence “[a]ll that is required . . . is that the evidence be such as to reasonably
satisfy the judge in the exercise of his sound discretion that the defendant
has willfully violated” or violated without legal 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). A verified probation violation report is competent
evidence to activate a sentence. State v. Duncan, 270 N.C. 241, 246, 154
S.E.2d 53, 58 (1967); see also State v. Tozzi, 84 N.C. App. 517, 521,
353 S.E.2d 250, 253 (1987) (evidence beyond a reasonable doubt not required).
Once the State has met this burden, the burden then
shifts to the defendant “to present competent evidence of his inability to
comply with the conditions of probation; . . . otherwise, evidence of
defendant's failure to comply may justify a finding that defendant's failure to
comply was wilful or without lawful excuse.” Id. at 521, 353 S.E.2d at
253. When the defendant presents evidence, “[t]he trial judge . . . is not
required to accept [the] defendant's evidence as true.” State v. Young,
21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). If the defendant fails to
present evidence, then evidence of failure to comply is sufficient to support a
finding that the violation was willful or without lawful excuse. State v.
Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). If the trial
judge's finding is supported by competentevidence, it will not be disturbed on
appeal absent a manifest abuse of discretion. State v. Guffey, 253 N.C.
43, 45, 116 S.E.2d 148, 150 (1960). Finally, “[t]he breach of any single
valid condition upon which the sentence was suspended will support an order
activating the sentence.” State v. Braswell, 283 N.C. 332, 337, 196
S.E.2d. 185, 188 (1973) (emphasis added).
A.
At the outset, the State has met its burden by
producing a violation report which was verified as to all three alleged
violations. As stated above, this constitutes competent evidence to revoke
probation. Duncan, 270 N.C. at 246, 154 S.E.2d at 58. Thus, the burden
now shifts to defendant to show an inability to comply with the probation
conditions.
B.
Defendant was alleged to have violated probation by (1)
failing to report to Wake County Probation within twenty-four hours of his
release from jail, (2) failing to pay restitution, and (3) failing to make
contact with Wake County Probation and absconding. As stated above, a finding
of breach of any one of these conditions, so long as it is supported by
competent evidence, will support an order activating sentences. Braswell,
283 N.C. App. at 337, 196 S.E.2d at 188. Importantly, the trial judge made a
finding that defendant had willfully violated each of the valid conditions of
the probation judgment. Thus, in order to uphold the trial court's decision, we
need only find competent evidence tosupport the finding of one of the alleged
three violations. We hold that such evidence exists.
Specifically, there is competent evidence to support a
finding that defendant failed to report to probation and absconded. First, the
record contains sworn and verified probation violations. Second, there is
testimony from a probation officer that defendant never reported to the Wake
County Probation office and the first time the officer saw defendant was after
he was arrested for violating probation. Third, defendant stated on cross that
he would not have contacted the probation office again had he not been
captured. In all, this is competent evidence to support the judge's finding
that defendant had violated his first (failure to contact) and third (absconding)
probation judgements.
Defendant counters that it cannot be said that he had
absconded or failed to report because he had made repeated efforts to contact
the probation office. The trial judge, as fact-finder, is not required to
accept his testimony as true. State v. Williamson, 61 N.C. App. 531,
535, 301 S.E.2d 423, 426 (1983). The credibility of any witness and the
evaluation and weight of their testimony is for the judge. State v. Robinson,
248 N.C. 282, 286, 103 S.E.2d 376, 379 (1958). Given the evidence against
defendant, it cannot be said that the trial judge abused his discretion in
finding a probation violation and reactivating defendant's sentences.
II.
Finally,
as to defendant's alleged failure to pay restitution, he argues that he received
ineffective assistance of counsel. Specifically, defendant alleges that his
trial counsel committed a Harbison error by admitting that defendant had
failed to pay restitution without defendant's consent. See State v. Harbison,
315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985), cert. denied, 476 U.S.
1123, 90 L. Ed. 2d 672 (1986). Because we find competent evidence to support
the trial judge's findings regarding absconding and failure to report, we need
not reach this issue. See Braswell, 283 N.C. App. at 337, 196 S.E.2d at
188 (requiring a finding of only one violation to uphold a determination to
revoke probation). Therefore, the judgment of the trial court is affirmed.
Affirmed.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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