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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 4 September 2007
STATE OF NORTH CAROLINA
Nos. 04 CRS 050129 - 050130
VINCENT TODD CARPENTER
Appeal by defendant from judgments entered 22 June 2006 by
Judge Kimberly S. Taylor in Stanly County Superior Court. Heard in
the Court of Appeals 20 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and
Kirby H. Smith, III, for defendant-appellant.
Vincent Todd Carpenter (defendant) appeals from judgments
entered revoking his probation and activating his suspended
sentences for attempted assault with a deadly weapon on a
government official pursuant to N.C. Gen. Stat. § 14-34.2, speeding
to elude arrest with two aggravating factors pursuant to N.C. Gen.
Stat. § 20-141.5(b), and impaired driving pursuant to N.C. Gen.
Stat. § 20-138.1. We affirm.
On 8 July 2005, defendant pled guilty to felony fleeing to
elude arrest, attempted assault with a deadly weapon on a
government official, and impaired driving. Defendant admitted and
stipulated to two aggravating factors regarding felony fleeing toelude arrest and attempted assault with a deadly weapon on a
government official: (1) the offense was committed for the purpose
of avoiding or preventing a lawful arrest; and (2) defendant
knowingly created a great risk of death to more than one person by
means of a weapon or device which would normally be hazardous to
the lives of more than one person. The trial court made no
findings of the existence of any mitigating factors.
The trial court sentenced defendant in the aggravated range to
fourteen to seventeen months imprisonment for felony fleeing to
elude arrest. Defendant received a consecutive sentence in the
aggravated range of twenty-five to thirty months imprisonment for
attempted assault with a deadly weapon on a government official.
Defendant was also sentenced to a concurrent six month term of
imprisonment for impaired driving. The trial court suspended
defendant's sentences and placed him on probation.
On 11 April 2006, probation violation reports were filed in
the fleeing to elude arrest and impaired driving cases. The report
alleged defendant: (1) tested positive for cocaine on four
occasions; (2) failed to make payments toward court fines,
restitution, and community service fees; (3) failed to make
payments toward supervision fees; and (4) failed to properly
complete a drug treatment program.
On 22 June 2006, a probation violation hearing was conducted.
Due to a missing witness, the State dismissed the fourth allegation
regarding defendant's failure to complete the drug treatment
program. Probation Officer Tony Gibson (Officer Gibson)testified: (1) about defendant's prior sentences; (2) defendant had
tested positive for cocaine on four separate occasions; and (3)
defendant had failed to make any payments on any case while on
probation. Defendant testified he had used cocaine and failed to
make payments required to maintain his probation.
The trial court found that defendant willfully and without
lawful excuse violated conditions of his probation . . . by testing
positive for cocaine on four separate occasions in 2005, and by
being in arrears on both his court debt and supervision fees. The
trial court revoked defendant's probation and activated all three
of his suspended sentences. Defendant appeals.
Defendant argues the trial court erred by: (1) revoking his
probation for attempted assault with a deadly weapon on a
government official without a probation violation report having
been filed alleging a violation of this particular conviction; (2)
activating his sentences in the aggravated range because the
aggravating factors found were inherent in the crimes for which he
was convicted; and (3) activating the aggravated sentences
previously imposed where the aggravating factors were found by the
initial trial judge in violation of Blakely v. Washington.
III. Revocation of Defendant's Probation for Attempted Assault
with a Deadly Weapon on a Government Official
A. Plain Error
Defendant argues it was plain error to revoke his probation
for attempted assault with a deadly weapon on a government officialwithout a probation violation report having been filed alleging a
violation of this particular conviction. We disagree.
Plain error review applies only to challenges of jury
instructions and to evidentiary matters. State v. Wiley, 355 N.C.
592, 615, 565 S.E.2d 22, 39-40 (2002), cert. denied, 537 U.S. 1117,
154 L. Ed. 2d 795 (2003); State v. Cummings, 352 N.C. 600, 613, 536
S.E.2d 36, 47 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641
(2001). Here, defendant has not asserted error to either jury
instructions or evidentiary matters as a basis for plain error
review. This assignment of error is dismissed.
B. No Notice and Violation Report Filed
Defendant argues the trial court lacked jurisdiction to hear
and rule on the attempted assault violation in the absence of prior
notice and a filed probation violation report. Since jurisdiction
can be raised at any time and for the first time on appeal, we
review defendant's assignment of error. See Bache Halsey Stuart,
Inc. v. Hunsucker, 38 N.C. App. 414, 421, 248 S.E.2d 567, 571
(1978) (The question of subject matter jurisdiction may properly
be raised for the first time on appeal.), cert. denied, 296 N.C.
583, 254 S.E.2d 32 (1979).
N.C. Gen. Stat. § 15A-1345(e) (2005) provides, in relevant
(e) Revocation Hearing. -- Before revoking or
extending probation, the 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 and a summary record of
the proceedings. The State must give the
probationer notice of the hearing and itspurpose, including a statement of the
violations alleged. The notice, unless waived
by the probationer, must be given at least 24
hours before the hearing.
Defendant acknowledged at the probation revocation hearing
that although the attempted assault on a government official
conviction was not referenced in the probation violation report, he
waived hearing on that matter, admitted the violation, and agreed
for that sentence to be activated. The following exchange
[Defense Counsel]: Your Honor, in regards to
the _- believe it was attempted assault with a
deadly weapon on a government official, which
was a 25 to 30 month suspended sentence, there
was no violation filed for that. [Defendant]
would agree to waive hearing in regard to that
and would admit the violation and agree for
that sentence to be activated. . . .
. . . .
The Court: All right. I'll note for the record
that [defendant] is present on the matter,
apparently was not formally served with a
violation report, that he has spoken with his
attorney and has agreed that the violation
would be heard today in conjunction with the
matters that were previously heard for which
the violation report is specifically
addressed. Note that [defendant] has agreed
that his probation be revoked and his active
sentence be placed in effect. Is that
[Defendant]: Yes, ma'am.
(Emphasis supplied). Defendant expressly waived prior notice and
a hearing, admitted his violations, and consented to his probation
being revoked before the trial court. N.C. Gen. Stat. § 15A-
1345(e). This assignment of error is overruled.
IV. Aggravating Factors Numbered Three and Eight
Defendant argues the trial court erred by activating his
suspended sentences in the aggravated range because: (1)
aggravating factors numbered three and eight where inherent in the
crimes for which he was convicted and (2) those sentences were
unconstitutionally aggravated in violation of Blakely v.
Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). We disagree.
When appealing from an order activating a
suspended sentence, inquiries are permissible
only to determine whether there is evidence to
support a finding of a breach of the
conditions of the suspension, or whether the
condition which has been broken is invalid
because it is unreasonable or is imposed for
an unreasonable length of time.
State v. Noles, 12 N.C. App. 676, 678, 184 S.E.2d 409, 410 (1971).
'Questioning the validity of the original judgment where sentence
was suspended on appeal from an order activating the sentence is .
. . an impermissible collateral attack.' State v. Holmes, 361
N.C. 410, 412, 646 S.E.2d 353, 354 (2007) (quoting Noles, 12 N.C.
App. at 678, 184 S.E.2d at 410).
Our Supreme Court has recognized one exception to the rule
prohibiting collateral attacks on a sentence upon activation,
involving a constitutional violation not at issue here. [W]hen a
court activates a suspended prison sentence, defendant may, upon
appeal of such activation, raise the claim that he was
unconstitutionally denied counsel at his original trial. State v.
Neeley, 307 N.C. 247, 250, 297 S.E.2d 389, 392 (1982).
Here, defendant does not argue he was unconstitutionally
denied effective assistance of counsel at trial. Defendant'sargument that the original trial court erred by sentencing him in
the aggravated range: (1) because the aggravating factors were
inherent in the crimes for which he was convicted or (2) is Blakely
error are 'impermissible collateral attack[s].' Holmes, 361 N.C.
at 412, 646 S.E.2d at 354 (quoting Noles, 12 N.C. App. at 678, 184
S.E.2d at 410)). Such a challenge must be sought through review of
the sentences imposed in the original judgments. Id. Defendant
also admitted and stipulated to these aggravating factors under
N.C. Gen. Stat. § 15A-1340.16(d) in his plea agreement. This
assignment of error is dismissed.
While defendant was entitled to notice and a hearing before
his probation could be revoked, he expressly waived these
requirements before the trial court, admitted his violations, and
consented to the revocation of his probation. Defendant's argument
that the original trial court erred by sentencing him in the
aggravated range are impermissible collateral attack[s], not
reviewable in an appeal from the order revoking his probation. Id
The trial court's judgment is affirmed.
Chief Judge MARTIN and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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