Opinion
No. COA02-975
Filed 1 April 2003 This case not for publication
Appeal by defendant from judgment entered 4 March 2002 by Judge Ernest Fullwood in Sampson County Superior Court. Heard in the Court of Appeals 24 March 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Claud R. Whitener, III, for the State. Angela Humes Brown for defendant-appellant.
Sampson County No. 02 CRS 1134.
Erika Catrica Pasillas ("defendant") appeals from a judgment revoking her probation and activating her suspended sentence. We remand to the trial court for appropriate findings.
On 30 September 1998, pursuant to a plea agreement, defendant pled guilty to conspiracy to traffic in cocaine. Judge Knox V. Jenkins suspended defendant's thirty-five to forty-two month imprisonment sentence and placed her on thirty-six months probation (intensive followed by supervised). A 6 March 2000 violation report charged defendant with moving from her place of residence without notifying her probation officer and failing to maintain contact with her probation officer after her probation was transferred to El Paso, Texas. At her probation hearing, counsel for defendant admitted the charged violations. The court also heard from defendant's probation officer, who stated that defendant absconded from supervision while in Texas. In response, defense counsel stated that there was "no showing" for the defense but relayed defendant's claim "that she was under domination of her current boyfriend and was not allowed to report as she should." Counsel conceded that defendant's "record, as far as being on probation, is not good[,]" but asked the court to continue defendant on probation. Finding that defendant admitted to the charged violations and that it was "not appropriate to continue her on probation[,]" the court revoked probation and activated her suspended sentence.
Defendant argues the trial court erred in revoking probation without findings of fact evaluating the cause of her non-compliance with the terms of probation. She faults the court for failing "to state for the record whether or not her evidence amounted to [a] lawful excuse" for her violation. She further claims that the judgment "leaves the potential basis upon which [her] probation was revoked a mystery."
In order to revoke probation and activate a suspended sentence, the trial court must find based upon competent evidence "that the defendant has violated, without lawful excuse, a valid condition" of probation. State v. Robinson, 248 N.C. 282, 287, 103 S.E.2d 376, 380 (1958). Under the "lawful excuse" rule, the court must also make findings of fact addressing any evidence of a lawful excuse for the defendant's violation. State v. Hill, 132 N.C. App. 209, 212, 510 S.E.2d 413, 415 (1999) (citing State v. Smith, 43 N.C. App. 727, 259 S.E.2d 805 (1979)). However, it is the defendant's burden to adduce evidence of a lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). If the defendant stipulates to the allegations in a probation violation report and offers no competent evidence to explain her violation, the trial court need not make specific findings regarding her ability to comply. Id. A defense counsel's representations to the trial court do not constitute competent evidence upon which the trial judge is required to make specific findings of fact. Id.
In the case at bar, defendant admitted the charged probation violations and offered no evidence of a lawful excuse therefor. Accordingly, the trial court was not required to make specific findings of fact addressing her ability to comply. See Crouch, 74 N.C. App. at 567, 328 S.E.2d at 835.
Although not squarely raised by defendant, we note that the trial court's judgment fails to identify the nature of defendant's probation violation and contains no finding that the violation was willful or without lawful excuse. It appears these omissions are merely a clerical oversight on the second page of the judgment. We therefore remand to the trial court for entry of the appropriate findings. See State v. Sanders, 19 N.C. App. 751, 753, 200 S.E.2d 221, 222 (1973).
Remanded.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).