Opinion
NO. COA11-69
09-06-2011
STATE OF NORTH CAROLINA v. AMANDA WILSON-LOPEZ
Attorney General Roy A. Cooper, III, by Assistant Attorney General Christine A. Goebel, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defenders Mary Cook and Kristen L. Todd, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Randolph County No. 09CRS86
Appeal by defendant from judgment entered on or about 16 August 2010 by Judge V. Bradford Long in Superior Court, Randolph County. Heard in the Court of Appeals 29 August 2011.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Christine A. Goebel, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defenders Mary Cook and Kristen L. Todd, for defendant-appellant.
STROUD, Judge.
I. Background
On 3 November 2008, Amanda Wilson-Lopez ("defendant") entered a plea of guilty to five counts of obtaining property by false pretenses. The trial court consolidated the charges into one judgment, imposed a suspended sentence of 8 to 10 months imprisonment, and placed defendant on 36 months supervised probation. On 16 July 2009, after finding defendant had violated provisions of her probation, the trial court modified defendant's probation, adding the condition that defendant attend Drug Treatment Court for 18 months and comply with the program's rules and regulations.
On 22 April 2010, 4 May 2010, and 26 July 2010, defendant's probation officer filed violation reports, which alleged the following violations: (1) defendant was in arrears on her monetary obligations; (2) defendant was terminated from the Drug Treatment Court program on 22 April 2010 because she violated the terms and conditions of the program; (3) defendant was charged with driving while her license was revoked on 25 March 2009 and convicted of failure to notify the DMV of an address change on 26 January 2010; and (4) defendant was charged with driving while impaired ("DWI") on 12 January 2010 and convicted of a Level 2 DWI on 13 July 2010.
The trial court conducted a probation revocation hearing on 16 August 2010. At the hearing, defendant's probation officer testified that defendant committed the aforementioned violations of her probation. Defendant did not present any evidence at the hearing.
The trial court found that defendant was in willful violation of the terms and conditions of her probation based upon her termination from the Drug Treatment Court, her failure to notify the DMV of an address change, and her DWI conviction. The trial court, however, declined to find that defendant had violated the monetary conditions of her probation. Thereafter, the trial court revoked defendant's probation, but reduced defendant's sentence to a term of 6 to 8 months imprisonment. Defendant gave timely written notice of appeal on 22 August 2010 pursuant to Rule 4(a)(2) of the North Carolina Rules of Appellate Procedure.
II. Standard of Review
We review a trial court's decision to revoke a defendant's probation under an abuse of discretion standard: "The 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. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (citations and quotation marks omitted).
III. Absence of Abuse of Discretion
On appeal, defendant contends that the trial court erred in revoking her probation, challenging each of the probation violations found by the trial court. During a probation revocation hearing, the State bears the burden of presenting evidence, "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. Lucas, 58 N.C. App. 141, 145, 292 S.E.2d 747, 750 (quotation marks omitted), disc. review denied, 306 N.C. 390, 293 S.E.2d 593 (1982).
Here, the State's evidence, presented in the form of the probation officer's testimony and the verified and uncontroverted violation reports, demonstrates that defendant was convicted of a criminal offense while on probation. The evidence shows that she was charged with a DWI on 12 January 2010 and that she was convicted of a Level 2 DWI on 13 July 2010. This evidence is sufficient to demonstrate that defendant violated the " regular condition of probation" which prohibits a probationer from committing any criminal offense in any jurisdiction.
Defendant, however, believes that the DWI conviction does not constitute sufficient grounds to enable the trial court to revoke her probation. Defendant suggests that we look to our criminal sentencing laws for guidance as to the type of proof necessary to establish a conviction at a probation revocation hearing. Specifically, defendant cites N.C. Gen. Stat. § 15A-1340.14(f), and argues we should apply its requirements to probation revocation hearings:
(f) Proof of Prior Convictions. -- A prior conviction shall be proved by any of the following methods:N.C. Gen. Stat. § 15A-1340.14(f) (2009).
(1) Stipulation of the parties.
(2) An original or copy of the court record of the prior conviction.
(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.
(4) Any other method found by the court to be reliable.
Defendant cites no support or basis for this contention, and we find it unpersuasive. "A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial." State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). Furthermore, in State v. Dement we found, "[s]ufficient evidence was presented in the verified and uncontradicted violation report served upon the defendant to support the trial court's findings and conclusions." State v. Dement, 42 N.C. App. 254, 255, 255 S.E.2d 793, 794 (1979) (citation omitted). Therefore, we affirm the trial court's revocation of defendant's probation based upon the finding that defendant willfully violated her probation based on her DWI conviction. We need not address defendant's arguments as to the remaining violations, as, "[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) (citation omitted).
IV. Clerical Error
Defendant also contends that the trial court made several clerical errors in the judgment. First, the trial court found three violations at the probation revocation hearing, but only one violation appears in the judgment. Additionally, the trial court neglected to check the box in the "conclusion and order" section of the judgment and commitment stating:
Based upon the Findings set out on the reverse side, the Court concludes that the defendant has violated a valid condition of probation upon which the execution of the active sentence was suspended, and that continuation, modification or special probation or criminal contempt is not appropriate, and the Court ORDERS that the defendant's probation be revoked, that the suspended sentence be activated, and the defendant be imprisoned[.]Defendant argues this case should be remanded to the trial court to correct these discrepancies.
This Court has found that, "[a] clerical error is an error resulting from a minor mistake or inadvertence, especially in writing or copying something on the record, and not from judicial reasoning or determination." State v. Lark, 198 N.C. App 82, 95, 678 S.E.2d 693, 702-03 (2009) (citations and quotation marks omitted), disc. review denied, 363 N.C. 808, 692 S.E.2d 111 (2010). Where a clerical error is found, the case may be remanded, "to the trial court for the limited purpose of correcting the clerical errors." Id. at 95, 678 S.E.2d at 703. After reviewing the transcript, we agree that the errors pointed out by defendant are indeed clerical errors. Accordingly, we remand the instant case to the trial court for the limited purpose of correcting the clerical errors in the judgment and commitment form.
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERRORS.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).