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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-476


Filed: 20 November 2007


    v.                        Cumberland County
                            Nos.    05 CRS 62183
GREGORY TULBERT FOSTER                05 CRS 65445
                                05 CRS 67124
                                06 CRS 50512

    Appeal by defendant from judgments entered 28 August 2006 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 16 November 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Susannah P. Holloway, for the State.

    Gilda C. Rodriguez, for defendant-appellant.

    TYSON, Judge.

    Gregory Tulbert Foster (“defendant”) appeals from judgments entered revoking his probation and activating his suspended sentences for his prior convictions of obtaining property by false pretense pursuant to N.C. Gen. Stat. § 14-100, eluding arrest by motor vehicle with three aggravating factors pursuant to N.C. Gen. Stat. § 20-141.5B, felony possession of cocaine pursuant to N.C. Gen. Stat. § 90-95(d)(2), and common law robbery pursuant to N.C. Gen. Stat. § 14-87.1. We affirm.

I. Background

    On 2 May 2006, defendant pled guilty to charges of obtaining property by false pretenses, felony possession of cocaine, eludingarrest by motor vehicle, and common law robbery. The trial court imposed consecutive sentences with a combined term of thirty-three to forty months imprisonment. The trial court suspended these sentences and placed defendant on supervised probation for sixty months.
    On 20 June 2006, defendant's probation officer filed a violation report which alleged that defendant had committed six violations of the regular and special conditions of his probation: (1) possession of and use of illegal drugs; (2) failure to complete community service; (3) missing office visits with his probation officer; (4) violating curfew; (5) failure to complete further evaluation, counseling, and treatment for drug addiction; and (5) failure to pay monetary restitution payments.
    At the probation violation hearing on 28 August 2006, defense counsel stated that “[t]hose violations are admitted, Your Honor, and the willfulness.” After hearing arguments from defense counsel and the State, the trial court found defendant “willfully and without lawful excuse violated the terms and conditions of probation as set forth in the violation [] report.” The trial court revoked defendant's probation and activated his three suspended sentences. Defendant appeals.
II. Issue

    Defendant argues the trial court erred by failing to question him regarding the probation violations and waiving the probation violation hearing required by N.C. Gen. Stat. § 15A-1345(e).
III. Probation Violations
    Defendant contends the trial court erred by failing to inquire directly with him before finding an admission of the probation violations and a waiver of the probation violation hearing. Defendant further states the record on appeal “does not reveal a probation violation hearing that was conducted in the spirit of N.C. Gen. Stat. § 15A-1345(e) in which [his] due process rights were of concern[,]” and that “[s]uch an abbreviated proceeding is offensive to the protections the statute sought to promote.” We disagree.
     “Statements of an attorney are admissible against his client provided that they have been within the scope of his authority and that the relationship of attorney and client existed at the time. . . . The burden is upon the client to prove lack of authority to the satisfaction of the court.” State v. Watson, 303 N.C. 533, 538, 279 S.E.2d 580, 583 (1981) (citations omitted). Nothing in the record before this Court indicates defense counsel was acting contrary to defendant's wishes when he admitted the willful violations of his probation. Defendant has failed to establish the absence of authority on his defense counsel's part to make the admission. Id.
    “A proceeding to revoke probation is not a criminal prosecution, and [there is] no statute in this State requir[ing] a formal trial in such a proceeding.” State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 479 (1967). Unlike the statutory advisement and inquiry required when a defendant pleads guilty in district or superior court, there are no equivalent statutory provisions for aprobationer's admissions of willful violations at a revocation hearing. Id.; N.C. Gen. Stat. § 15A-1022 (2005); N.C. Gen. Stat. § 15A-1345 (2005).
    Defendant's contention that he did not waive a probation revocation hearing is incorrect. “The minimum requirements of due process in a final probation revocation hearing . . . shall include . . . a court hearing on the violation(s) including . . . a waiver of the presentation of the State's evidence by an in-court admission of the willful . . . violation as contained in the written notice (or report) of violation . . . .” State v. Williamson, 61 N.C. App. 531, 533, 301 S.E.2d 423, 425 (1983).
     Here, the trial court held a hearing on 28 August 2006 “to determine whether to revoke or extend probation” pursuant to N.C. Gen. Stat. § 15A-1345(e). After defense counsel's admissions, the trial court found defendant had willfully and without lawful excuse violated the conditions of probation set out in the 20 June 2006 violation report. Because the breach of any one condition is sufficient grounds to revoke probation, defendant has failed to show the trial court erred by revoking defendant's probation and activating his sentences. State v. Tozzi, 84 N.C. App. 517, 353 S.E.2d 250 (1987) . This assignment of error is overruled.
IV. Conclusion

    The trial court did not err when it accepted defense counsel's statement that defendant admitted the willful probation violations. The trial court held a probation violation hearing pursuant to N.C.Gen. Stat. § 15A-1345(e) . The trial court's judgments are affirmed.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

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