Opinion
No. COA10-387
Filed 4 January 2011 This case not for publication
Appeal by defendant from judgments entered 19 June 2009 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 29 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Lisa Y. Harper, for the State.
James N. Freeman, Jr., for defendant-appellant.
Guilford County Nos. 01-CRS-91808; 92384; 02-CRS-69522; 69539; 69556; 69573; 69591; 69609; 69626.
Kenneth Lee Cornelison (defendant) appeals from revocation of probation and activation of nine sentences, to run consecutively, of six to eight months' imprisonment imposed for multiple convictions of obtaining property by false pretense.
Defendant pled no contest to more than 150 counts of taking property by false pretense. On 1 August 2003, Judge L. Todd Burke entered nine judgments sentencing defendant to nine consecutive terms of six to eight months each. Judge Burke suspended the sentences and placed defendant on supervised probation for sixty months. Judge Burke also ordered defendant to pay restitution in the amount of $200,000.00.
On 30 November 2006, Judge Richard L. Doughton dismissed a probation violation report and continued defendant on probation.
On 17 July 2008, defendant's probation officer filed violation reports alleging that defendant violated conditions of probation by falling in arrears in the restitution payments and by committing new offenses. Defendant admitted that he was in arrears but denied that his failure to pay was willful.
Defendant's probation officer testified at the hearing that defendant was ordered to pay $199,999.79 as restitution to his victims. Defendant paid $20,000.00 at the time of the entry of the judgments and, upon his release after serving an active portion of the sentences, he was to begin making monthly restitution payments in the amount of $3,200.00. At the time of the 30 November 2006 probation violation hearing, defendant was $65,817.00 in arrears in his payments. As of the time of the probation violation hearing on 18 June 2009, defendant had paid a total of $39,930.00 over a course of six years and had fallen in arrears in the amount of $160,669.70. Defendant made his last payment, in the amount of $80.00, on 29 May 2009. Over the course of time defendant's payments decreased. Defendant never mentioned having financial difficulties.
Defendant testified that, after serving an active term of six months, he began working for Leatherland Furniture Company as a salesman in February 2004. He earned $18,000.00 per year during the two years he worked for Leatherland Furniture Company until it went out of business. Defendant and his mother then rented the building formerly occupied by Leatherland Furniture Company and operated his own furniture sales business there. The business initially did well until other furniture businesses in High Point went out of business in late 2006 and early 2007. Sales in his business declined and in 2006, he earned only $15,000.00. When sales continued to decline, he and his mother closed the store in High Point and moved to a new location in Greensboro in February 2008. Business at the Greensboro location was so bad that they closed the Greensboro store in November 2008 and began operating the business out of the home defendant shared with his mother. Defendant made half the income in 2008 that he had made in 2006.
Defendant further testified that he has never been financially able to pay $3,200.00 per month as restitution, and he has paid as much each month as he could afford to pay. He was prepared to pay $500.00 at the time of the hearing. Defendant pays $1,000.00 per month as rent for the residence he shares with his mother. His living expenses are approximately $2,200.00 per month. He shares an automobile, a 1995 Ford Escort, with his mother, who has a number of health problems for which she has been hospitalized. He pays $199.00 per month for the automobile. He made his probation officer aware of his financial hardships and his mother's ill health. Defendant's mother also testified regarding defendant's financial hardships and her health problems.
At the conclusion of the hearing, the court dictated the following findings of fact into the record:
1. When the defendant was initially tried on the various and numerous charges herein, he was subjected to various judgments, some of which were probationary in nature, as it appears of record. The only part of the — the loss occasioned by his criminal conduct was ordered to be paid as restitution, but other restitution, fines, costs and attorney fees were remitted.
2. The defendant was ordered to pay in a monthly amount restitution in the amount of 32 hundred dollars for the use and benefit of approximately 150 individual victims in order that they might be made whole.
3. Not once in some six intervening years has the defendant ever paid the monthly amount ordered by the Court.
4. Indeed, he has commenced to accumulate arrearages, and did so early on, to the extent that he was cited for violation of probation in 2006.
5. A hearing was held on November 30th, 2006. As a result of that hearing, he was continued on probation. At the time of that hearing, he was some $65,817 in arrears.
6. Following the hearing and action of the Court in placing him on continued probationary status, the defendant continued to accumulate arrearage, to the extent that he is, as of the date of this hearing, $160,069 dollars in arrears, more than double the amount of arrearage when his first probation violation was heard and determined November 30th, 2006.
7. The pattern of failure to pay restitution continues unabated to the date of this hearing.
8. Many victims continue to await compensation ordered by the court.
9. All the while, the defendant has been employed in the furniture business, or has owned his own business which is in the nature of furniture sales. The defendant has not told his current probation [officer] anything before the date of this hearing about his business going bad, nor has he related to her or delivered to her information that his business was in difficulty and that he had financial hardship.
10. The defendant has the financial means and wherewithal to pay rent on a very nice house in a good neighborhood in the amount of $1,000 a month, and to pay utilities thereon.
11. The defendant certainly has the financial ability and means to pay court-ordered restitution in an amount far and away above that paid to date.
12. The very erratic pattern of nonpayment, low payment and arrearage accumulation all the while strongly suggests that there is no reasonable prospect of compliance before the expiration of this judgment.
13. Indeed, this judgment entered by the Court would have expired before the date of this hearing but for the intervening filing of numerous other pending charges, which tolled the expiration of the judgment. The judgment is to expire in approximately 324 days.
14. Probation is simply not the answer in this case. Probation is not working in this case. Further probation will not result in anything other than — than further accumulation of arrears and nonpayment of restitution, in the view of this Court.
15. Simply put, to continue the defendant on probation further, under the totality of the circumstances, puts the Court, in this Judge's opinion, in the position to be in evasion and avoidance of restitution to the numerous victims looking to the Court for justice, many of whom are currently complaining that justice is denied by nonpayment of restitution ordered by the Court after all these years.
The court ultimately found and concluded that defendant willfully and without lawful excuse violated the terms and conditions of probation. The court revoked probation and activated the sentences.
Defendant contends that the court erred by finding that he willfully violated the terms and conditions of probation. He argues that there is no evidence in the record to show that his failure to pay full restitution was willful.
"All that is required in a hearing [upon a violation report] is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended." State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). Willful breach of any single
valid condition will support an order activating the sentence. State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). A verified report of a probation officer stating in detail the conditions of probation violated by the defendant is competent evidence to establish the violations. State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 58 (1967). Evidence which shows that the defendant failed to comply with a term or condition of probation is sufficient to support a finding that the violation was willful or without lawful excuse unless the defendant can successfully carry his burden of showing lawful excuse or lack of willfulness. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). The trial judge, as the fact finder, is not required to accept the defendant's testimony or evidence as true. State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). Evidence which contradicts or disputes the State's evidence simply creates credibility issues for resolution by the trial judge. State v. Darrow, 83 N.C. App. 647, 649, 351 S.E.2d 138, 140 (1986).
Defendant acknowledged on cross examination that, within the year prior to the probation violation hearing, he moved into a new house, paying $1,000.00 per month in rent, an increase of $100.00 per month from what he had been paying. Defendant acknowledged that he could have rented an apartment for approximately half that amount. Although defendant stated that it would be difficult to obtain employment in light of his criminal record, his testimony shows that he had obtained employment as a furniture salesperson immediately upon his release from the active portion of the sentence. We also observe that defendant failed to present any documented evidence to show that he unsuccessfully attempted to obtain other higher-paying or additional employment in order to pay restitution to his victims.
As our Supreme Court has stated, probation is "an act of grace" accorded one who has been convicted of crime. Hewett, 270 N.C. at 351, 154 S.E.2d at 478. The "defendant carries the keys to his freedom in his willingness to comply with the court's sentence." Id. at 353, 154 S.E.2d at 479. Despite having been granted grace by the original sentencing judge and by the judge who continued defendant on probation, defendant continued to accumulate arrearages at an accelerated rate while voluntarily increasing his living expenses at the expense of his victims. We find no abuse of discretion in the trial court's order revoking probation.
Defendant also contends that the court erred by considering evidence of new charges pending against defendant. As a finding of one ground is all that is necessary to revoke probation, we need not consider this contention.
The judgments are
Affirmed.
Chief Judge MARTIN concurs.
Judge JACKSON concurred in this opinion prior to 31 December 2010.
Report per Rule 30(e).