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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-56


Filed: 4 September 2007


         v.                        Mecklenburg County
                                Nos. 01 CRS 114987,
STANLEY ABRAHAM   (See footnote 1)                          114989        

    Appeal by Defendant from judgment entered 31 August 2006 by Judge Robert P. Johnston in Superior Court, Mecklenburg County. Heard in the Court of Appeals 27 August 2007.

    Attorney General Roy Cooper, by Special Duty Attorney General Robert C. Montgomery and Assistant Attorney General Kathleen U. Baldwin, for the State.

    Norman Butler for defendant-appellant.

    WYNN, Judge.

    Defendant Stanley Abraham appeals from an order activating his suspended sentence. We find no error.
    On 28 March 2001, Defendant pled guilty to accessory after the fact to assault with a deadly weapon with intent to kill inflicting serious injury and accessory after the fact to discharging a firearm into occupied property. The trial court sentenced him to a suspended term of twenty-five to thirty-nine months imprisonmentand placed him on supervised probation for sixty months.
    On 30 June 2005, a probation violation report was filed alleging that Defendant had: (1) tested positive for marijuana; (2) failed to report to his probation officer; (3) failed to pay his probation supervision fee; and (4) failed to maintain satisfactory employment.
    On 31 August 2006, the trial court held a probation violation hearing. At the beginning of the hearing, Defendant moved to dismiss the probation violation on the grounds that the judgment did not comply with N.C. Gen. Stat. §15A-1343.2(d), the structured sentencing statute for probation terms.   (See footnote 2)  The trial court denied Defendant's motion to dismiss. The trial court found that Defendant willfully violated his probation, thus, the trial court revoked his probation and activated his suspended sentence.
    Defendant appeals contending that the trial court failed to make a finding that a longer period of probation was required, in accordance with N.C. Gen. Stat. §15A-1343.2(d); therefore, he was improperly placed on probation for five years. However, Defendant's argument constitutes an impermissible collateral attack. Thus, we affirm the revocation of his probation.
    “When appealing from an order activating a suspended sentence, inquiries are permissible only to determine whether there isevidence 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)) (citing State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970)). Defendant's argument does not pertain to either inquiry outlined in Noles. Furthermore, Defendant did not move to withdraw his plea or for a writ of certiorari. Therefore, he has waived any challenge to the original judgment. State v. Rush, 158 N.C. App. 738, 741, 582 S.E.2d 37, 39 (2003). Accordingly, we affirm.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
     We note that the judgment and commitment upon revocation of probation refers to Defendant as “Stanley Abraham” however, the judgment suspending sentence refers to Defendant as “Stanley Drew Abraham, Jr.” Because, the judgment for which Defendant appeals from refers to him as “Stanley Abraham” we refer to him as such throughout the opinion.
Footnote: 2
     The statute further provides that unless the trial court makes findings of fact that longer or shorter periods of probation are necessary, the probationary period for felons sentenced to intermediate punishment is a minimum of eighteen months and a maximum of thirty-six months. N.C. Gen. Stat. §15A- 1343.2(d)(4).

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