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.
Affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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