Appeal by defendant from judgments entered 16 January 2007 by
Judge Thomas H. Lock in Cumberland County Superior Court. Heard in
the Court of Appeals 30 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Ebony J. Pittman, for the State.
Sofie W. Hosford, for defendant-appellant.
William Yates (defendant) appeals from judgments entered
revoking his probation and activating his suspended sentences for
three counts of felonious larceny pursuant to N.C. Gen. Stat. § 14-
72(A), two counts of conspiracy to commit felonious larceny
pursuant to N.C. Gen. Stat. § 14-2.4(a), felony fleeing to elude
arrest pursuant to N.C. Gen. Stat. § 20-141.5(b), breaking and
entering pursuant to N.C. Gen. Stat. § 14-54(a), possession of
stolen motor vehicles pursuant to N.C. Gen. Stat. § 20-106, and
felonious possession of cocaine pursuant to N.C. Gen. Stat. § 90-
95(d)(2). We affirm.
On 13 September 2006, defendant pled guilty to three counts of
felonious larceny, two counts of conspiracy to commit felonious
larceny, felonious fleeing to elude arrest, felonious breaking and
entering, possession of stolen motor vehicles, and felonious
possession of cocaine.
Pursuant to a plea agreement, defendant was
sentenced to five consecutive sentences of six to eight months.
Those sentences were suspended, defendant was placed on supervised
probation for thirty-six months and he was ordered to pay
restitution and probation fees.
The terms of defendant's probation
required him to: (1) submit to drug tests; (2) complete fifty hours
of community service; (3) maintain regular office visits with his
probation officer; (4) comply with a curfew; and (5) submit to a
substance abuse evaluation.
On 30 November 2006, defendant's probation officer filed five
probation violation reports alleging numerous violations of several
of the conditions of probation.
The reports alleged defendant had
violated his probation by: (1) testing positive for cocaine and
marijuana on one occasion; (2) failing to complete any community
service hours; (3) failing to report to scheduled visits with the
probation officer on four occasions; (4) violating curfew on eleven
occasions; (5) failing to pay monthly court indebtedness; (6)
failing to pay probation supervision fees; (7) failing to obtain
satisfactory employment; (8) failing to report for substance abuse
evaluation; and (9) having several criminal charges pending against
him as of the date of the reports.
On 10 January 2007, defendant's probation officer filed five
addenda to the reports, alleging defendant had willfully violated
his probation when ammunition, firearms, and illegal drugs were
discovered at his house during a search incident to defendant's
At the probation revocation hearing on 16 January 2007,
defendant moved to continue the hearing based upon inadequate time
to prepare a response or defense on the allegations contained in
the 10 January 2007 addenda to the probation violation reports.
The trial court denied defendant's motion, but continued the
hearing to later that day to allow defendant and his counsel time
to confer on the addenda.
Later that day at the hearing, defendant admitted he willfully
violated the condition that he [n]ot use, possess or control any
illegal drug or controlled substance unless it has been prescribed
for the defendant by a licensed physician and is in the original
container with the prescription number affixed on it. . . .
violation was listed as the first violation on all five of the
probation violation reports. After hearing all the evidence, the
trial court found defendant had willfully violated certain
conditions of his probation and activated his suspended sentences.
Defendant argues the trial court erred by: (1) not making the
requisite findings of fact in revoking his probation and (2)abusing its discretion in denying his motion to continue the
probation revocation hearing.
III. Revocation of Probation
Defendant argues the trial court abused its discretion by
failing to make specific findings of fact regarding which
conditions of probation he had violated. Defendant contends the
five reports were all dated 30 November 2006, each one listed
different violations, and that this Court cannot undertake
meaningful appellate review without more specific findings of fact
by the trial court. Defendant argues he is entitled to a new
probation revocation hearing. We disagree.
A trial court retains the discretion to revoke probation upon
evidence which is sufficient to satisfy the court that a defendant
has willfully violated a condition of his probation. State v.
, 83 N.C. App. 647, 648-49, 351 S.E.2d 138, 139 (1986). It
is well established that a single willful violation is sufficient
to support revocation of probation. State v. Braswell
, 283 N.C.
332, 337, 196 S.E.2d 185, 188 (1973).
Defendant bears the burden to present sufficient and competent
evidence that he was unable to comply with the conditions of his
probation, or that his violations were not willful. State v.
, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). Absent
such evidence, failure to comply may justify a finding that
defendant's failure to comply was wilful or without lawful excuse.
. A trial court must make findings of fact showing it consideredthe evidence presented at the revocation hearing. State v.
, 173 N.C. App. 620, 624-25, 619 S.E.2d 567, 570 (2005).
Here, the five probation violation reports share six identical
violations. In addition, four of the violations ultimately found
by the trial court to support revocation are listed on each of the
five reports. As far as identifying which violations were used to
support revocation, the trial court referred to the original
violation report at the hearing and referenced a report that
alleged eight violations. Only one of the reports contained eight
violations, providing a clear indication of the violations under
review. Throughout the hearing the discussion centered on this
original violation report, with defendant admitting or denying
each of the eight allegations contained in that report.
The trial court found as fact that it had reviewed the
evidence presented at the hearing and it was reasonably satisfied
in its discretion that the defendant violated each of the
conditions numbered 1, 3, 4, 5, 6, and 8 of the violation report
dated 30 November 2006. Paragraph numbered 1 stated defendant
tested positive for cocaine and marijuana on 28 September 2006.
This violated the condition that defendant [n]ot use, possess or
control any illegal drug or controlled substance unless it has been
prescribed for the defendant by a licensed physician and is in the
original container with the prescription number affixed on it. . .
. This violation was listed as the first violation on all five
probation violation reports. At the hearing, defendant admitted
that he had willfully violated this condition. One violation is sufficient to support a trial court's
decision to revoke probation and this violation was alleged on all
of the reports. Braswell
, 283 N.C. at 337, 196 S.E.2d at 188. We
need not analyze any other violations used to support the
revocation of defendant's probation. Defendant had notice that
violation of this condition was alleged to revoke his probation and
he admitted its violation was willful. The trial court did not
abuse its discretion in revoking defendant's probation. This
assignment of error is overruled.
IV. Motion to Continue
Defendant contends the trial court abused its discretion by
denying his motion to continue the revocation hearing. Defendant
argues he and his attorney should have been allowed more time to
respond to the allegations in the addenda which were filed only
five days prior to the revocation hearing. We disagree.
A. Standard of Review
A trial court may allow or deny a motion to continue in its
sound discretion, and its decision will not be overturned absent a
gross abuse of discretion. State v. Jones
, 172 N.C. App. 308, 311-
12, 616 S.E.2d 15, 18 (2005). To show that the denial of a motion
to continue was prejudicial, a defendant must show that he did not
have adequate time to confer with his attorney and to prepare a
defense, as well as show how his defense would have been better
prepared if he had been given adequate time. Id
. at 312, 616
S.E.2d at 18.
The addenda were issued 10 January 2007, and the hearing was
scheduled to be held 16 January 2007. At the hearing, defense
counsel stated he had not had time to confer with defendant
regarding the additional allegations contained in the addenda. The
trial court questioned the witnesses with regard to their
availability and decided to continue the hearing until later that
day to allow defendant and his attorney additional time to confer.
Defendant has not shown the trial court abused its discretion
in denying his motion to continue the hearing to a later date.
Because at least one other originally alleged probation violation
exists to support revocation of defendant's probation, any error in
not allowing defendant additional time to prepare a response to the
allegations listed in the addenda could not have prejudiced his
defense or resulted in a different outcome. This assignment of
error is overruled.
Sufficient evidence was presented at the hearing to revoke
defendant's probation. Defendant admitted he willfully violated a
condition of his probation. The trial court did not abuse its
discretion in denying defendant's motion to continue the revocation
hearing. The trial court's judgments are affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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