Opinion
No. COA11–1504.
2012-11-6
STATE of North Carolina v. Kevin Blake GIBBS.
Attorney General Roy Cooper, by Assistant Attorney General Melody R. Hairston, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for defendant-appellant.
Appeal by defendant from order entered 27 June 2011 by Judge Alma L. Hinton in Pitt County Superior Court. Heard in the Court of Appeals 15 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Melody R. Hairston, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Kevin Blake Gibbs (“defendant”) appeals from an order revoking his probation and activating a sentence of six to eight months imprisonment for felony possession of cocaine. On appeal, defendant argues that the trial court: (1) made insufficient factual findings to support its order; (2) erred by revoking his probation based on a violation of which defendant had no notice; and (3) abused its discretion by revoking his probation based on insufficient evidence. After careful review, we affirm.
Background
In 2010, defendant pled guilty to felony possession of cocaine in Beaufort County Superior Court and was placed under supervised probation for 18 months. The conditions of defendant's probation included: that defendant “(5) [r]emain within the jurisdiction of the [c]ourt unless granted written permission to leave by the [c]ourt or the probation officer”; and that he “(6)[r] eport as directed by the [c] ourt or the probation officer to the officer at reasonable times and places and in a reasonable manner, permit the officer to visit at reasonable times ... and notify the officer of, any change in address or employment.”
On 19 May 2011, defendant's probation officer, William Woolard, filed a probation violation report in which he alleged that defendant willfully violated the condition of probation that defendant was to “ ‘[r]emain within the jurisdiction of the [c]ourt unless granted written permission to leave by the [c]ourt or the probation officer’ in that” defendant had moved from his place of residence in Belle Arthur, North Carolina on or about 10 May 2011 and had failed to notify the probation officer of his whereabouts.
During a probation revocation hearing held on 27 June 2011, Mr. Woolard testified that he had last seen defendant on 12 April 2011, when he met with defendant concerning a probation violation not at issue here. The court date for that violation was 18 April 2011; defendant failed to appear. Between 18 April 2011 and 10 May 2011, the probation officer visited defendant's Belle Arthur address approximately five times but did not find defendant and did not see anyone in the residence.
Defendant disputed the allegation that he had moved and testified that he still lived at the Belle Arthur address. Defendant testified that he visited his terminally ill father once or twice a week in Hyde County, and that he would always spend the night with his father on these visits. Defendant admitted, however, that he had not been in contact with his probation officer for more than a month before the probation violation report was filed. Defendant testified that he tried to contact his probation officer on the phone, but he did not leave a voicemail for Mr. Woolard, and he had not spoken with Mr. Woolard between mid-April and the filing of the probation violation report in mid-May. The trial court found defendant in willful violation of his probation and activated his sentence of six to eight months imprisonment. Defendant appeals.
Discussion
Defendant first argues the trial court's order revoking his probation must be reversed because the trial court made insufficient factual findings to support its order. We disagree.
“The minimum requirements of due process in a final probation revocation hearing” require the trial court's written judgment to contain “findings of fact as to the evidence relied on” and the “reasons for revoking probation.” State v. Williamson, 61 N.C.App. 531, 533–34, 301 S.E.2d 423, 425 (1983). Here, the trial court's written order provides: (1) that the trial court had considered the record and evidence presented by both parties; (2) that defendant was charged with having violated the conditions of his probation as provided in the probation violation report; (3) that the trial court was reasonably satisfied, based on the evidence presented, that defendant had violated each of the conditions of probation specified in the probation violation report; (4) that the facts of each violation were set forth in the probation violation report dated 17 May 2011, which was incorporated into the order; and, (5) that each violation was in itself a sufficient basis for the revocation of probation. The trial court's written order in conjunction with the probation violation report provided sufficient findings of fact to support the revocation of defendant's probation. See State v. Henderson, 179 N.C.App. 191, 196–97, 632 S.E.2d 818, 822 (2006) (rejecting the defendant's argument that the trial court made insufficient findings in revoking the defendant's probation where the written order contained substantially similar information). Defendant's argument is overruled.
Next, defendant argues that he did not receive notice of the alleged violation that he failed to report to his probation officer. We disagree.
As to this issue, we conclude the case of State v. Hubbard, 198 N.C.App. 154, 159, 678 S.E.2d 390, 394 (2009), is controlling. In Hubbard, this Court rejected the defendant's argument that he did not have notice of the alleged violation of the condition of probation for which his probation was revoked. Id. The violation report in Hubbard contained a single numbered paragraph labeled “ ‘Other Violation,’ “ which provided a narrative describing an incident where the defendant was intoxicated and uncooperative during a visit by an officer assigned to supervise the defendant. Id. at 155, 678 S.E.2d at 392. The paragraph also included a statement that the defendant “ ‘failed to report in a reasonable manner to his probation officer during a curfew check.’ “ Id.
The probation officer and the trial court came to different conclusions as to the condition the defendant had violated. The probation officer testified that the defendant had violated the “ ‘regular condition [of probation] number 6,’ “ requiring the defendant to report as directed by the court or his probation officer to the officer at reasonable times and places and in a reasonable manner. Id. at 157, 678 S.E.2d at 393. The trial court, however, interpreted the violation that was alleged in the report to be a violation of the special condition of probation number 4, requiring the defendant to “ ‘submit to supervision by officers of the [I]ntensive [P]robation [P]rogram’ “ and to comply with the rules of that program. Id. at 156–57, 678 S.E.2d at 393.
The Hubbard Court noted that while the condition of probation the defendant was alleged to have violated “might have been ambiguously stated in the report,” the violation report provided “specific facts” that the State argued constituted the probation violation. Id. at 158–59, 678 S.E.2d at 394. The evidence at the hearing established these same facts, and the trial court found the allegations in the report did occur. Id. at 159, 678 S.E.2d at 394. Thus, the defendant received “notice of the specific behavior [he] was alleged and found to have committed” in violation of his probation, and this provided the defendant with sufficient notice of the alleged violation. Id. (emphasis added).
Similarly, here, the probation violation report provided defendant notice of the specific behaviors that were alleged to constitute violations of his probation. The reported stated, in part, that defendant “failed to notify his probation officer of his whereabouts.” The evidence at trial established this fact in that defendant testified that he had not spoken with his probation officer for more than one month at the time of the filing of the probation violation report. The trial court found the violation to be willful and incorporated the violation report in its findings of facts.
In light of Hubbard, we must conclude that the probation violation report constituted sufficient notice that the State alleged defendant violated the condition of his probation requiring him to report to his probation officer at reasonable times and places and in a reasonable manner. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). Defendant's argument is overruled.
Lastly, defendant argues the trial court abused its discretion in revoking his probation as there was insufficient evidence to support the trial court's order. We disagree.
The evidence required to support the trial court's revocation of a defendant's probation need only “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. Young, 190 N.C.App. 458, 459, 660 S.E.2d 574, 576 (2008) (citation and quotation marks omitted). If the trial court's finding of a probation violation is supported by competent evidence, we may reverse the trial court's decision only for an abuse of discretion. Id. Evidence establishing the violation of any one of the probation violations alleged provides a sufficient basis for the revocation of probation. See State v. Seay, 59 N.C.App. 667, 670–71, 298 S.E .2d 53, 55–56 (1982) (concluding that, in light of the evidence in that case, the trial court could have found “[a]ny one” of the “three alleged violations” to be a violation of the defendant's probation), disc. review denied, 307 N.C. 701, 301 S.E.2d 394 (1983). Here, the record contains competent evidence that defendant failed to report to his probation officer for at least one month prior to the filing of the probation violation report and supports the trial court's conclusion that defendant willfully violated the terms of his probation. The trial court did not abuse its discretion in revoking defendant's probation. Accordingly, we do not reach defendant's arguments regarding the sufficiency of the evidence for any other alleged probation violations. The trial court's order is affirmed.
AFFIRMED. Judges GEER and BEASLEY concur.
Report per Rule 30(e).