Opinion
No. COA09-1474
Filed 6 July 2010 This case not for publication
Appeal by Defendant from judgments entered 8 September 2009 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Ward Zimmerman, for the State. Carol Ann Bauer, for Defendant.
Mecklenburg County Nos. 05 CRS 243073-74, 254196.
Defendant appeals from judgments revoking his probation. We affirm.
On 5 April 2007, Defendant entered a plea of guilty to discharging a weapon into occupied property, misdemeanor injury to personal property, and conspiracy to commit robbery with a dangerous weapon. The trial court entered two judgments, imposed two consecutive sentences of twenty-five to thirty-nine months imprisonment, which the court suspended, and placed Defendant on thirty-six months supervised probation. In both judgments, the trial court imposed monetary conditions of probation and several special conditions of probation in addition to the regular conditions of probation.
On 19 November 2007, Defendant's original probation officer, Trey Holcomb, filed a violation report alleging that Defendant had violated the conditions of his probation. On 11 and 12 February 2008, the trial court found that Defendant had violated his probation. The trial court entered two orders on violation of probation and modified several conditions of Defendant's probation. However, the original judgments, containing the original conditions, remained in full force and effect.
On 8 April 2008, Defendant was transferred to a new probation officer, James Lamont Taylor. On 15 January 2009, Taylor filed new violation reports alleging the following violations: (1) Defendant failed to pay his court fines; (2) Defendant failed to pay his monthly supervision fee; and (3) Defendant was terminated from his drug treatment program (TASC) in violation of the requirement that he participate in any evaluation, counseling, treatment, or education programs recommended. On 29 June 2009, Taylor filed addendums to the violation reports alleging the following additional violations: (1) Defendant tested positive for marijuana; (2) Defendant failed to complete his community service requirement; (3) Defendant failed to obtain his G.E.D.; (4) Defendant committed the offenses of larceny of a motor vehicle and possession of a stolen vehicle on or about 20 April 2009.
The trial court conducted a probation revocation hearing on 8 September 2009. At the hearing, Defendant's probation officer, Taylor, testified that: (1) Defendant had not paid any amount towards his court fines or supervision fees; (2) Defendant was terminated unsuccessfully from his court-ordered drug treatment program (TASC); (3) Defendant tested positive for marijuana on 4 June 2009; (4) Defendant completed only thirty-four of his eighty court-ordered community service hours; (5) Defendant failed to obtain his G.E.D.; and (6) Defendant was charged with larceny of a motor vehicle on 21 April 2009. Following the State's evidence, Defendant moved to dismiss the probation violations on the ground that the State failed to prove that Defendant had been given the terms and conditions of his probationary judgment and any modifications thereof in writing. The trial court denied Defendant's motion, and Defendant did not offer any evidence. Defendant thereafter renewed his motion to dismiss at the close of all evidence, which the trial court denied. The trial court found that Defendant had willfully violated the conditions of his probation in that he failed to meet his monetary obligations and tested positive for marijuana on 4 June 2009. Therefore, the trial court revoked Defendant's probation and activated Defendant's two consecutive sentences of twenty-five to thirty-nine months imprisonment. Defendant gave oral notice of appeal in open court.
On appeal, Defendant raises two arguments related to the trial court's denial of his motion to dismiss. He contends that the trial court erred in denying his motion to dismiss on the grounds that (1) the State failed to demonstrate that Defendant received a written statement of the original conditions of his supervised probation; and (2) the State failed to demonstrate that Defendant received a written statement setting forth his modified conditions of probation.
Pursuant to N.C. Gen. Stat. § 15A-1343(c), "[a] defendant released on supervised probation must be given a written statement explicitly setting forth the conditions on which he is being released. If any modification of the terms of that probation is subsequently made, he must be given a written statement setting forth the modifications." N.C. Gen. Stat. § 15A-1343(c) (2009). "If the record does not explicitly demonstrate that a defendant received written notification of the terms and conditions of probation, the condition prescribed by the trial court is invalid." State v. Henderson, 179 N.C. App. 191, 197, 632 S.E.2d 818, 822 (2006) (citing State v. Lambert, 146 N.C. App. 360, 368, 553 S.E.2d 71, 78 (2001)). Additionally, "[o]ral notice to defendant of his conditions of probation is not a satisfactory substitute for the written statement required by statute." Lambert, 146 N.C. App. at 369, 553 S.E.2d at 78.
In the present case, Taylor was not supervising Defendant at the time he was originally placed on probation or at the time Defendant's probation was modified. Therefore, Taylor did not personally give Defendant copies of the conditions of his probation or any modifications thereof. In several instances, however, Taylor offered testimony indicating that Defendant likely received written copies. First, Taylor testified that Defendant signed a DCC-2 form acknowledging the monetary conditions of his probation. Taylor further testified that, based on receipt of the DCC-2 form, he "assumed" that defendant also received a copy of the original judgments, because the DCC-2 form accompanies the judgment. Next, Taylor testified that the original probation officer's notes indicate that he met with Defendant to discuss the conditions of probation. However, the notes did not contain any indication that the original probation officer gave Defendant a written copy, and Taylor had no information regarding the modified conditions. Finally, Taylor testified that it was the policy of the Department of Correction to give defendants a written copy of their conditions of probation. Despite Taylor's testimony, he was unable to definitively state that Defendant received a written copy of all the conditions of his probation and any modifications thereof.
Although Taylor's testimony does not demonstrate that Defendant received written copies of all the conditions of his probation and the modifications thereof, the record nonetheless demonstrates that Defendant received written notice of the monetary conditions of his probation. As referenced above, Defendant executed two acknowledgments (the "DCC-2 form") of the monetary conditions of his probation on 5 April 2007. In the first DCC-2 form, Defendant acknowledged that he was required to pay $420.50 in court fees ($50.00 per month) plus a $30.00 per month supervision fee. Thus, Defendant's DCC-2 form constitutes proof that Defendant received notice of the monetary conditions of his probation. Despite the subsequent modification of Defendant's probation on 12 February 2008, the monetary conditions of Defendant's probation remained in full force and effect. Because the record shows that Defendant received written notification of the monetary conditions of his probation, it was proper for the trial court to revoke Defendant's probation on this ground. Moreover, "[a]ny violation of a valid condition of probation is sufficient to revoke defendant's probation." State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted). Thus, Defendant's breach of the monetary conditions of his probation was a sufficient basis for revoking Defendant's probation, even if Defendant failed to receive written notice of the other conditions of his probation.
We find support for our position in Henderson, in which we were presented with a similar scenario. In Henderson, the State failed to present evidence that the defendant had received written copies of the conditions of his probation and any violations thereof. Henderson, 179 N.C. App. at 197, 632 S.E.2d at 822. Nonetheless, the defendant in Henderson signed a DCC-2 form acknowledging the monetary conditions of his probation, which we found to be sufficient written notification. Id. Therefore, we held that "[b]ecause the record explicitly demonstrates that defendant received written notification of the monetary condition, the breach of this condition was a valid basis upon which defendant's second probation could be revoked." Id. at 197-98, 632 S.E.2 at 822. Accordingly, we find no prejudicial error in the trial court's revocation of Defendant's probation.
Affirmed.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).