Opinion
No. COA10-890
Filed 1 March 2011 This case not for publication
Appeal by defendant from judgment entered 31 March 2010 by Judge R. Stuart Albright in Gaston County Superior Court. Heard in the Court of Appeals 21 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Gregory P. Roney, for the State. William D. Auman for defendant-appellant.
Gaston County Nos. 07 CRS 68318, 69942-45
Defendant Marquette Weathers appeals from a judgment entered by the trial court revoking his probation and activating his suspended sentence. On appeal, Defendant contends that the trial court erroneously concluded that he had wilfully violated the terms and conditions of his probation. After carefully considering Defendant's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should be affirmed.
I. Factual Background
On 1 June 2009, Defendant entered pleas of guilty to attempted felonious restraint, assault on a female, communicating threats, domestic criminal trespass, and assault with a deadly weapon. Based upon Defendant's guilty pleas, Judge Richard D. Boner consolidated Defendant's convictions for judgment and sentenced Defendant to a minimum term of twelve months and a maximum term of fifteen months imprisonment in the custody of the North Carolina Department of Correction. However, Judge Boner suspended Defendant's sentence and placed him on supervised probation on the condition, among other things, that he comply with the usual terms and conditions of probation and make certain monetary payments.
On 16 December 2009, Defendant's probation officer filed a probation violation report alleging that Defendant had violated the terms and conditions of his probation by (1) missing scheduled office visits on 23 September 2009, 12 October 2009, and 30 October 2009; (2) failing to make required monetary payments; and (3) leaving his last known place of residence and failing to inform his probation officer about his current location. At a revocation hearing held on 31 March 2010, Defendant denied the violations alleged in the probation officer's report. After hearing testimony from Defendant's probation officer and from Defendant, the trial court found that Defendant had violated the terms and conditions of his probation without lawful excuse, revoked Defendant's probation, and activated Defendant's suspended sentence. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
On appeal, Defendant argues that the trial court erred by revoking his probation on the grounds that the evidence presented at the revocation hearing was not sufficient to support a conclusion that Defendant's failure to comply with the terms and conditions of his probation was willful. In essence, Defendant argues that the record does not contain any evidence tending to show that he moved from his last known residence or that he had the ability to comply with the monetary provisions of the probationary judgment entered by Judge Boner. We disagree.
"Probation is an act of grace by the State to one convicted of a crime." State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (1980). In order to revoke a defendant's probation, the trial court need only find that the defendant has willfully violated a valid condition of probation or valid condition upon which the sentence was suspended without lawful excuse. State v. Tozzi, 84 N.C. App. 517, 520-21, 353 S.E.2d 250, 252-53 (1987). "Additionally, once the State has presented competent evidence establishing a defendant's failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms." State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002) (citation omitted). "If the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation." Id. at 438, 562 S.E.2d at 540 (citation omitted).
At the revocation hearing, the State presented evidence tending to show that Defendant met with his probation officer on 19 August 2009. At that time, Defendant's probation officer scheduled his next appointment for 23 September 2009. Defendant did not, however, attend the 23 September 2009 appointment. On 27 September 2009, the probation officer went to Defendant's residence, where he found no one home. The probation officer left a card on the front door indicating that Defendant's next appointment would be 12 October 2009. Defendant failed to attend the 12 October appointment, so the probation officer visited Defendant's residence again. After ascertaining that no one was at home, the probation officer left a card on the front door indicating that Defendant's next appointment would be 30 October 2009. Defendant missed the 30 October appointment as well, and never contacted his probation officer. In addition to missing these three appointments and failing to inform his probation officer about his whereabouts, the probation officer testified that Defendant had made no payments toward his monetary obligations.
At the time that he took the witness stand on his own behalf, Defendant admitted that he missed the 23 September office visit. However, he claimed to have called his probation officer numerous times and to have left several messages in an attempt to reschedule his appointment. Defendant claimed that he never got a return phone call or received the cards left by the probation officer rescheduling his office visits. Defendant explained his failure to make the required monetary payments by pointing out that he had child support obligations in addition to the monetary obligations imposed in his probationary judgment. Defendant stated that, while he was seeking employment, his only income came from performing odd jobs. On cross-examination, Defendant admitted he did not attend the office visits with his probation officer because he was behind on his child support obligations and he knew that he "was going to get locked up" if he showed up.
The record clearly reveals that, as he admitted, Defendant missed scheduled office visits with his probation officer. In addition, the probation officer testified that he could not locate Defendant at his last known address. The trial court explicitly stated that he did not find Defendant's testimony concerning his efforts to contact his probation officer about rescheduling his appointment to be credible. "The trial judge, as the finder of the facts, is not required to accept defendant's evidence as true." State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). In addition, "[i]t is sufficient grounds to revoke the probation if only one condition is broken." State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53, 55 (1982) (citations omitted), disc. review denied, 307 N.C. 701, 301 S.E.2d 394 (1983). In light of the fact that the undisputed record evidence shows that Defendant missed a scheduled appointment with his probation officer and did not provide a credible explanation for his conduct, the trial court had ample basis for concluding that Defendant had violated a term or condition of his probation without lawful excuse. As a result, the trial court did not abuse its discretion in revoking Defendant's probation and activating his suspended sentence, so that the trial court's judgment should be, and hereby is, affirmed.
AFFIRMED.
Judges STEPHENS and BEASLEY concur. Report per Rule 30(e).