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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 2 October 2007
STATE OF NORTH CAROLINA
Nos. 03 CRS 057231 - 057232
CHARLES ROBERT FRANKS 03 CRS 057752
Appeal by defendant from judgments entered 18 August 2006 by
Judge Mark E. Klass in Davidson County Superior Court. Heard in
the Court of Appeals 12 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Bethany A. Burgon, for the State.
Brian Michael Aus, for defendant-appellant.
Charles Robert Franks (defendant) appeals from judgments
entered revoking his probation and activating his suspended
sentences for his prior convictions of taking indecent liberties
with a child pursuant to N.C. Gen. Stat. § 14-202.1. We affirm and
remand for correction of clerical error.
On 3 December 2003, defendant pled guilty to five counts of
taking indecent liberties with a child. Defendant pled guilty
pursuant to a plea agreement and received one active sentence, in
the mitigated range for imprisonment of fifteen months minimum and
eighteen months maximum. The remaining consecutive and identical
sentences for the four remaining counts were suspended, anddefendant was placed on supervised probation for sixty months after
completing his active sentence.
On 29 April 2005, defendant's probation officer issued
probation violation reports alleging defendant had violated the
conditions of his probation ordering him to: (1) pay the Clerk of
Superior Court the 'Total Amount Due' as directed by the Court or
probation officer; (2) not  purchase, possess or consume
alcoholic beverages or controlled substances; (3) submit to
blood, breath, and urine testing for analysis for the presence of
prohibited drugs or alcohol as requested by the supervising officer
and pay any fees associated with testing; and (4) abide by a
On 4 May 2005, defendant's probation officer issued another
probation violation report alleging defendant had violated the
conditions of his probation by failure to report to his probation
officer as instructed, by being terminated from his sexual abuse
treatment program for being non-compliant, and by failing to reside
at his approved residence on a regular basis. These reports
further alleged defendant had: (1) appeared to be under the
influence of drugs; (2) admitted to his probation officer that he
had been using crack/cocaine; (3) failed or refused to obtain and
maintain gainful employment as required by his probation; and (4)
traveled to Virginia in violation of the probation condition
requiring him to remain within the jurisdiction of the trial court
unless granted written permission to leave by the trial court or
his probation officer. On 4 August 2005, defendant appeared in court and admitted to
the allegations contained in the reports. The trial court revoked
one of defendant's suspended sentences and activated the fifteen
month minimum, eighteen month maximum sentence. The remaining
three sentences remained suspended and defendant was continued on
probation after serving the activated sentence.
On 8 May 2006, defendant was convicted of two counts of
driving while license revoked and two counts of breaking and
entering vending machines. On 24 May 2006, probation violation
reports and notices of hearing were again issued against defendant.
Defendant again admitted the violations in open court, waived
formal presentation, and consented to Probation Officer James
Powers (Officer Powers) summarizing his violations.
Officer Powers testified that defendant had committed
violations which occurred prior to the last probation violation
hearing, but were pending and not disposed of until after the
earlier hearing. Officer Powers explained, that since the last
hearing, new offenses had been alleged against defendant but that
he had not been convicted of the crimes at that time. Officer
Powers testified defendant was convicted and had received the
following active sentences: (1) two counts of misdemeanor larceny;
(2) two counts of breaking and entering a coin machine or currency
machine, receiving a sixty day active sentence; (3) driving with a
revoked license, receiving a 120 day active sentence; and (4)
felony breaking and entering a coin or currency machine, receiving
a four to five month active sentence. Officer Powers explained that because all of the charges
against defendant were pending at the time of the prior violation
hearing, he had not included them in his previous violation report.
Officer Powers recommended revocation of defendant's probation
based upon the multiple charges and convictions, and new offenses
which occurred in three different counties. Each of these offenses
violated the three remaining suspended probationary sentences.
The trial court determined defendant had, willfully, without
lawful excuse, violated terms and conditions of his probation and
entered judgments, which revoked the sixty month term of probation
and activated defendant's suspended sentences of the three
consecutive terms of imprisonment. Defendant appeals.
Defendant argues the trial court erred by: (1) revoking his
probation for convictions pre-dating the first probation violation
hearing, which were not included in the earlier violation report;
(2) failing to make sufficient findings of fact to revoke his
probation; and (3) finding, in his absence, that each violation, in
and of itself, was a sufficient basis upon which probation could
and should be revoked.
III. Standard of Review
Upon a hearing to determine whether or not
probation should be revoked, and a sentence
previously suspended should be activated, all
that is required is that the evidence be such
as reasonably to satisfy the judge, in the
exercise of his sound discretion, that the
defendant has violated a valid condition upon
which the sentence was so suspended.
State v. Seagraves, 266 N.C. 112, 113, 145 S.E.2d 327, 329 (1965). 'Abuse of discretion results where the court's ruling is
manifestly unsupported by reason or is so arbitrary that it could
not have been the result of a reasoned decision.' State v. Trull,
349 N.C. 428, 445, 509 S.E.2d 178, 190 (1998) (quoting State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)), cert.
denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999).
IV. Convictions Not in Previous Violation Reports
Defendant argues the trial court erred by revoking his
probation for charges which predated his first probation violation
hearing and were not included in previous violation reports. We
Defendant's first probation violation hearing was held on 4
August 2005. The trial court determined that defendant,
willfully, without lawful excuse, violated terms and conditions of
his probation and activated a portion of his suspended sentence.
On 8 May 2006, defendant was convicted of: (1) driving while
licensed revoked on 24 January 2005; (2) breaking and entering
vending machines on 10 June 2005; (3) driving while licensed
revoked on 7 July 2005; and (4) breaking and entering vending
machines on 8 May 2006.
The trial court correctly revoked defendant's probation. In
order to revoke probation, all that is required is that the
evidence be such as reasonably to satisfy the judge, in the
exercise of his sound discretion that the defendant has violated a
valid condition upon which the sentence was so suspended.
Seagraves, 266 N.C. at 113, 145 S.E.2d at 329. A condition ofdefendant's probation was that he not commit a criminal offense in
any jurisdiction. Defendant was convicted of multiple offenses
over different periods of time in multiple counties. The trial
court found each conviction was sufficient to revoke defendant's
probation. Defendant failed to argue or show these violations were
not wilful and the trial court abused its discretion. This
assignment of error is overruled.
V. Clerical Error
Defendant argues the trial court erred when it failed to make
sufficient findings of fact to revoke his probation. The trial
court found in its judgments that defendant had violated specified
conditions of his probation as alleged in the notice of hearing on
violation of unsupervised probation where he was charged with
violating the terms of his probation through a violation report.
A clerical error has been defined as [a]n error resulting
from a minor mistake or inadvertence, esp. in writing or copying
something on the record, and not from judicial reasoning or
determination. State v. Jarman, 140 N.C. App. 198, 202, 535
S.E.2d 875, 878 (2000). [A] court of record has the inherent
power to make its records speak the truth and, to that end, to
amend its records to correct clerical mistakes or supply defects or
omissions therein. State v. Davis, 123 N.C. App. 240, 242-43, 472
S.E.2d 392, 393 (1996).
The revocation order contains a clerical error. Each of the
judgments entered state [t]he defendant is charged with having
violated specified conditions of the defendant's probation asalleged in the: . . . b. Notice of Hearing on Violation of
Unsupervised Probation on file herein, which is incorporated by
The wrong box was checked on each preprinted judgment form.
Instead of checking box b, the court should have checked box a
which stated, Violation Report(s) on file herein, which is
incorporated by reference. The trial judge did not exercise
judicial discretion or undertake any judicial reasoning when
signing each judgment. Jarman, 140 N.C. App. at 203, 535 S.E.2d
at 879. We remand this case for correction of this clerical error.
VI. Absence of Defendant from Findings of Fact
Defendant argues the trial court erred by making a finding of
fact, in his absence, that each violation is, in and of itself, a
sufficient basis upon which probation should be revoked. We
In open court, with defendant being present, the trial judge
stated that defendant had willfully, without lawful excuse,
violated terms and conditions of his probation. Activate his
sentence. On each judgment form is a finding that each violation
is, in and of itself, a sufficient basis upon which this Court
should revoke probation and activate the suspended sentence.
A defendant has the right to be present at the time the
sentence is imposed. State v. Beasley, 118 N.C. App. 508, 514, 455
S.E.2d 880, 884 (1995). A judgment will not be disturbed because
of sentencing procedures unless there is a showing of abuse of
discretion, procedural conduct prejudicial to defendant,circumstances which manifest inherent unfairness and injustice, or
conduct which offends the public sense of fair play. State v.
Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962).
In a similar case, the defendant's sentence was vacated and
the case was remanded for entry of a new sentencing judgment.
State v. Crumbley, 135 N.C. App. 59, 66-67, 519 S.E.2d 94, 99
(1999). In Crumbley, the trial court rendered the sentence in open
court in the defendant's presence, but did not indicate whether the
sentences would run consecutively or concurrently. 135 N.C. App.
at 61, 519 S.E.2d at 96. The trial court later entered a written
and signed judgment that stated the sentences would run
consecutively with no indication in the record that the defendant
was present. Id. Here, unlike in Crumbley, there was no change in
the basis of defendant's judgments or sentence to require the
remand for the entry of a new sentencing judgment.
Each judgment for defendant's original convictions, during
which defendant was present, stated each of the sentences would run
consecutively. Defendant was notified and knew his original
consecutive terms of imprisonment could be activated if his
probation was revoked. Defendant failed to show the trial judge
abused his discretion by finding and concluding that each
violation is, in and of itself, a sufficient basis upon which this
Court should revoke probation and activate the suspended sentence.
This assignment of error is overruled.
Defendant failed to show any error in the trial court'sdecision to revoke his probation and finding as fact that each
violation is, in and of itself, a sufficient basis upon which
probation should be revoked. Defendant received a fair hearing,
free from the prejudicial errors he assigned, preserved, and
The trial court's order revoking defendant's probation and
activating his suspended sentences is affirmed. This case is
remanded for correction of the clerical error in accordance with
Affirmed and Remanded for Correction of Clerical Error.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
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