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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-880


Filed: 19 June 2007


v .                         Rutherford County
                            No. 02 CRS 1363
NATHANIEL GOODE                 02 CRS 55870

    Appeal by defendant from judgments entered 16 December 2005 by Judge C. Preston Cornelius in Rutherford County Superior Court. Heard in the Court of Appeals 21 February 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General LeAnn M. Rhodes, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel Shatz for defendant.

    LEVINSON, Judge.

    Nathaniel Goode (defendant) appeals judgments revoking his probation in case numbers 02 CRS 1363 and 02 CRS 55870. We affirm.
    On 21 October 2002, a judgment was entered upon defendant's conviction for possession of cocaine. Defendant received a suspended sentence of 6-8 months and was placed on supervised probation for 36 months. In addition, on 22 September 2003, judgment was entered upon a conviction for communicating threats. Pursuant to that judgment, defendant received a 75 day suspended sentence and was placed on supervised probation for 12 months.
    On 2 September 2004, two violation reports, one corresponding to each judgment, alleged defendant violated the conditions of probation. In both violation reports, it was alleged that, “on7-2-04, he was arrested and charged with attempted murder, assault with a deadly weapon with intent to kill inflicting serious injury, [two c]ounts of assault on a government official, [first] degree kidnaping and possession of a firearm by a felon. . . . If he is convicted, it will be a violation of his probation.” In addition, the violation report in 02 CRS 55870 alleged defendant owed court fees and probation supervision fees.
    At a hearing held 16 December 2005, probation officer Karen Long testified. She testified that defendant had been convicted of the charges referenced in each violation report. With respect to the monetary violations alleged in 02 CRS 55870, Long testified that defendant owed $238.00 for court costs and $160.00 in supervision fees on the date of the violation report.
    Defendant testified that he was on disability; that he paid money every month; that nothing was said to him about being in arrears on his payments; and that these charges were not brought until after he was imprisoned and therefore unable to pay. (T p 7)
    At the conclusion of the hearing, the judge, in open court, stated that:
        [tlhe Court finds that he has willfully and unlawfully violated the terms and conditions of probation by failing to make the monetary payments ordered by the Court, that he was able in body, capable of making those payments, and could have made them had he chose to do so. The violations are willful and
        unlawful. The Court revokes the probation in each case. . . .

In corresponding written judgements entered on 16 November 2005, the trial court found in both 02 CRS 1363 and 02 CRS 55870 thatdefendant willfully violated the condition of probation that he not be convicted of any criminal offense. As to 02 CRS 55870, the trial court also found that defendant violated the monetary conditions of his probation in that he owed $238.00 and $160.00 in supervision fees. Finally, in each probation revocation order, the trial court found that, “[e]ach violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence.” Defendant now appeals the judgments revoking his probation.
    Citing State v. Beasley, 118 N.C. App. 508, 455 S.E.2d 880 (1995), defendant first argues that the trial court violated his constitutional right to be present when judgment was pronounced against him because the written revocation judgments differ from the ruling announced in open court.   (See footnote 1)  We disagree.
    “Before revoking or extending probation, [a trial] court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision[.]” N.C. Gen. Stat. § 15A-1345(e) (2005). “'The minimum requirements of due process in a final probation revocation hearing . . . shall include[] . . . a written judgment by the [trial court] which shall contain (a) findings offact as to the evidence relied on, [and] (b) reasons for revoking probation.'” State v. Henderson, __ N.C. App. __, __, 632 S.E.2d 818, 821 (2006)(quoting State v. Williamson, 61 N.C. App. 531, 533-34, 301 S.E.2d 423, 425 (1983)).
    Defendant contends that, because the trial court found that he committed criminal offenses in the written judgments, but did not state the same in open court when pronouncing judgment, he was denied his right to be present when judgment was pronounced. Defendant does not contend that he was denied an opportunity to be heard on all alleged violations alleged in the reports, or contest the fact he did, in fact, commit new criminal offenses while under the supervision of the court. Defendant merely asserts, relying on Beasley, supra, that his constitutional rights were violated when the court added a finding in each judgment revoking suspended sentence that he committed offenses while under supervision. Beasley does not stand for this proposition, and our research does not reveal authority that suggests the trial court is limited to including in its revocation orders only those facts orally stated in open court. And, we observe, findings related to the commission of alleged violations set forth in a probation revocation report are simply not akin to findings in aggravation during sentencing that can increase the term of imprisonment _ that which was at issue in Beasley. This assignment of error is overruled.
    Defendant next argues that the trial court erred by finding a wilful violation of defendant's monetary conditions of probationbecause the finding was not supported by sufficient evidence. We disagree.
    “All 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 violated a valid condition upon which the sentence was suspended.” State v. Robinson, 248 N.C. 282, 285-86, 103 S.E.2d 376, 379 (1958). After the State presents evidence that defendant violated a condition of probation, defendant must then prove that he was unable to comply with conditions of probation and that the violation was either not wilful or was with a lawful excuse. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). However, “[t]he trial judge, as the finder of the facts, is not required to accept defendant's evidence as true.” State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974).
    In the present case, the evidence was sufficient to enable the trial court to conclude that defendant wilfully violated the monetary terms of his probation. In addition, as to 02 CRS 55870, the trial court found that defendant's commission of the criminal offenses was a sufficient independent basis for revocation. Thus, regardless of the court's ruling as to the monetary conditions of probation, the revocation in 02 CRS 55870 would stand. The relevant assignments of error are overruled.
    We have considered defendant's remaining arguments and conclude they are without merit.
    Judges BRYANT and McCULLOUGH concur.
    Report per Rule 30(e).     

Footnote: 1
     The State asserts that defendant has no constitutional right to be present when the trial court pronounces judgment as a result of probation revocation hearings, citing State v. Bonds, 43 N.C. App. 467, 259 S.E.2d 377 (1979). Because probation revocation is not a “criminal proceeding,” the State contends, defendant has no constitutional right to be present. It is not necessary to address this issue squarely; defendant's argument on appeal is rejected on other grounds.

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