Opinion
No. COA11–1345.
2012-07-3
STATE of North Carolina v. Nathan Andrew RIDDLE, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Brian R. Berman, for the State. Appellate Defendant Staples Hughes, by Assistant Appellate Defender Mary Cook, for defendant-appellant.
Appeal by defendant from judgment entered 26 May 2011 by Judge Mark E. Powell in Buncombe County Superior Court. Heard in the Court of Appeals 26 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Brian R. Berman, for the State. Appellate Defendant Staples Hughes, by Assistant Appellate Defender Mary Cook, for defendant-appellant.
GEER, Judge.
Defendant Nathan Andrew Riddle appeals from the revocation of his probation and activation of his suspended sentence. Defendant argues on appeal only that the trial court erred by not accepting his probation officer's recommendation that the trial court modify defendant's probation rather than activating his sentence. Because the decision to activate defendant's sentence was in the discretion of the trial court, and we find the trial court did not abuse its discretion, we affirm.
Facts
On 2 July 2009, defendant pled guilty in Mecklenburg County Superior Court to misdemeanor fleeing to elude arrest. The trial court sentenced defendant to 45 days imprisonment, suspended the sentence, and imposed supervised probation for 36 months. Defendant's probation was then transferred to Buncombe County.
In a probation violation report filed 27 October 2010, defendant's probation officer stated defendant violated the following conditions of his probation: (1) he failed to pay court fees; (2) he failed to pay his probation supervision fee; (3) he was convicted of possession on 25 April 2010 of a malt beverage by a person under age 19 or 20; and (4) he had charges pending for felony fleeing to elude arrest, possession of stolen property, and possession of a stolen motor vehicle (which offenses allegedly occurred on 15 September 2010).
At the hearing on the violation report, defendant admitted that he had since been convicted, among other charges, of felony fleeing to elude arrest, the felony version of the same crime for which he was on probation. Defendant's probation officer and defendant's counsel, nonetheless, both urged the trial court not to activate defendant's sentence, but instead to impose intensive probation for a period of four months. The trial court, after noting that defendant had again been convicted of the same offense for which he had been placed on probation, ordered revocation of defendant's probation, activated his 45–day sentence, and placed defendant in the custody of the Buncombe County Sheriff. Defendant timely appealed to this Court.
Discussion
We first address the State's contention that defendant does not have the right to bring this appeal. The State argues that when a suspended sentence is activated, a defendant may only raise two issues, relying upon the following quotation from State v. Noles, 12 N.C.App. 676, 678, 184 S.E.2d 409, 410 (1971): “When appealing from an order activating a suspended sentence, inquiries are permissible only to determine whether there is evidence to support a finding of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid because it is unreasonable or is imposed for an unreasonable length of time.”
The State has, however, disregarded the context of this quotation. In Noles, the defendant was attempting to argue, in an appeal from his probation revocation, that the trial court had erred in concluding that his guilty plea that resulted in the probationary sentence was voluntary. Id. This Court ultimately held, immediately after the quotation relied upon by the State, that “[q]uestioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is, we believe, an impermissible collateral attack.” Id. The Court then concluded that the defendant's arguments should have been pursued in a motion for appropriate relief rather than an appeal from a probation revocation. Id.
Here, defendant has made no attempt to collaterally attack his original conviction. His arguments are directed only at the probation revocation that he has appealed. Noles is, therefore, inapposite, and we address the merits of defendant's argument.
Defendant contends solely on appeal that the trial court abused its discretion by revoking his probation and activating his sentence when his probation officer recommended intensive probation rather than activation of defendant's sentence. It is, however, well established that “[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). Further, with respect to an order revoking probation and activating a sentence, “[t]he findings of the judge, if supported by competent evidence, and his judgment based thereon are not reviewable on appeal, unless there is a manifest abuse of discretion.” State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
Here, defendant does not challenge the trial court's determination that he willfully violated his probation. While defendant concedes that the trial court may revoke probation when there is sufficient evidence that the defendant has willfully violated his probation, defendant contends that his probation officer “was in the best position to know what [defendant] needed to be successful.” However, defendant cites no authority, and we have found none, suggesting that the trial court is required to accept a probation officer's recommendation.
As this Court has previously held, “trial judges have discretion in probation proceedings, [and] that discretion ‘implies conscientious judgment, not arbitrary or willful action. It takes account of the law and the particular circumstances of the case, and is directed by the reason and conscience of the judge as to a just result.’ “ State v. Floyd, ––– N.C.App. ––––, ––––, 714 S.E.2d 447, 450 (2011) (quoting State v. Hill, 132 N.C.App. 209, 212, 510 S.E.2d 413, 415 (1999)). In this case, the trial court based its decision on the fact that defendant, who was on probation for having committed the offense of misdemeanor fleeing to elude arrest, proceeded to commit felonious fleeing to elude arrest. We cannot conclude that the trial court acted unconscientiously or arbitrarily in deciding that because probation did not deter defendant from being a repeat offender of the same crime, his sentence should be activated. We, therefore, affirm the trial court's revocation of defendant's probation and activation of his suspended sentence.
Affirmed. Judges ELMORE and THIGPEN concur.
Report per Rule 30(e).