Opinion
No. COA10-620
Filed 18 January 2011 This case not for publication
Appeal by Defendant from judgments dated 21 January 2010 by Judge J.B. Allen, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 17 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State. Daniel J. Clifton for Defendant.
Alamance County Nos. 09 CRS 53340-41.
Facts
On 15 June 2009, in Alamance County Superior Court, the Honorable James C. Spencer, Jr. presiding, Defendant James Anthony Barnette, Jr. pled guilty in case number 09 CRS 53340 to one count of possession with intent to sell or distribute cocaine and one count of possession of drug paraphernalia, and pled guilty in case number 09 CRS 53341 to one count of manufacturing cocaine and one count of resisting a public officer. After sentencing Defendant to consecutive fifteen-to-eighteen-month prison terms for the two cases, Judge Spencer suspended Defendant's sentences and placed him on supervised probation for thirty-six months.
Defendant's suspended sentence also included twenty-three days active punishment, for which Defendant was given credit for time served of twenty-three days.
As conditions of his probation in each case, Defendant was required to (1) not commit any criminal offense in any jurisdiction, (2) remain gainfully and suitably employed, (3) remain within the jurisdiction of the court unless granted written permission to leave, (4) report to a probation officer at reasonable times and places and obtain prior approval for, and notify the officer of, any change in address or employment, (5) not use, possess, or control any illegal drug, (6) supply a breath, urine, or blood specimen for analysis of the possible presence of a prohibited drug, and (7) report for an initial evaluation by "TASC."
"TASC" is a program run by the North Carolina Department of Health and Human Services that provides services to people with substance abuse or mental illness who are involved in the justice system. The name is an acronym standing for "Treament Accountability for Safer Communities."
On 30 December 2009, Defendant's probation officer filed probation violation reports in both of Defendant's cases, alleging, inter alia, that Defendant had committed the following violations of the conditions of his probation: on 14 July 2009, Defendant tested positive for marijuana; on 16 October 2009, Defendant was convicted of second degree trespass; on 3 November 2009, Defendant failed to report for a scheduled office visit with his probation officer; Defendant appeared to no longer live at his "assigned residence"; and Defendant failed to attend his scheduled TASC appointments on 10 and 11 August 2009, 1 and 18 September 2009, and 27 October 2009.
Following a 21 January 2010 probation revocation hearing before Judge J.B. Allen, Jr., Judge Allen revoked Defendant's probation in both cases and activated Defendant's sentences, ordering that they be served consecutively. Defendant appeals.
Discussion
On appeal, Defendant first argues that Judge Allen erred by revoking Defendant's probation because the evidence failed to show that Defendant willfully violated the conditions of his probation. We disagree.
Any violation of a valid condition of probation is sufficient to revoke defendant's probation. All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse. The burden is on defendant to present competent evidence of his inability to comply with the conditions of probation; and that otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was wilful or without lawful excuse.
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted). On appeal, a trial court's finding of a violation of probation will only be disturbed upon a showing of a "manifest abuse of discretion." State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960). "A trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985).
At the probation revocation hearing, Officer Allison Rogers, Defendant's probation officer, testified that Defendant was "convicted in Alamance County District Court on October 16, 2009 of second degree trespass." Defendant later testified that he had, in fact, pled guilty to second degree trespass.
Defendant's plea of guilty to the charge of second degree trespass serves as clear evidence that Defendant violated the probation requirement that he "not commit any criminal offense in any jurisdiction." Because Defendant offered no lawful excuse for this violation, and because "[a]ny violation of a valid condition of probation is sufficient to revoke [a] defendant's probation[,]" Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253, we conclude that Judge Allen did not manifestly abuse his discretion in finding that Defendant violated his probation and revoking his probation. Defendant's argument is overruled.
Defendant next argues that Judge Allen erred by punishing him for exercising his statutory right to a probation revocation hearing. Defendant bases his argument on the following: at the conclusion of the hearing, after Judge Allen "put into immediate effect" the suspended sentences — two consecutive sentences of fifteen to eighteen months — this exchange occurred between defense counsel and the judge:
[Defense Counsel]: Your Honor, would the Court consider running those [sentences] concurrently?
COURT: No, I might have considered it if he had come in here and admitted to violating the probation, but no, the sentence is to begin at the expiration.
Defendant argues that Judge Allen's statement that he "might have considered" running the sentences concurrently had Defendant admitted to the probation violations clearly indicates that the judge was "punishing" Defendant "for exercising his statutory right to a probation revocation hearing." As such, Defendant asserts that he is entitled to a new sentencing hearing on the probation violations. We disagree.
It has long been settled in this jurisdiction that "a defendant's decision to exercise his right to proceed to trial rather than enter a plea of guilty may not be a factor in the trial court's sentencing determination." State v. Pinkerton, ___ N.C. App. ___, ___, 697 S.E.2d 1, 6 (2010) (citing State v. Gantt, 161 N.C. App. 265, 271, 588 S.E.2d 893, 897 (2003), disc. review denied, 358 N.C. 157, 593 S.E.2d 83 (2004)). As reasoned by our Supreme Court,
[u]nder Article I, Section 24, of the North Carolina Constitution, no person shall be convicted of any crime but by the unanimous verdict of a jury in open court. . . . No other right of the individual has been so zealously guarded over the years and so deeply embedded in our system of jurisprudence as an accused's right to a jury trial. This right ought not to be denied or abridged nor should the attempt to exercise this right impose upon the defendant an additional penalty or enlargement of his sentence. The statement of the trial judge [in this case], expressed by him in open court, indicated that the sentence imposed was in part induced by defendant's exercise of his constitutional right to plead not guilty and demand a trial by jury. This we cannot condone. We agree with the Court of Appeals: "The trial judge may have sentenced defendant quite fairly in the case at bar, but there is a clear inference that a greater sentence was imposed because defendant did not accept a lesser plea proffered by the State." Defendant had the right to plead not guilty, and he should not and cannot be punished for exercising that right.
State v. Boone, 293 N.C. 702, 712-13, 239 S.E.2d 459, 465 (1977).
In this case, Defendant asks this Court to extend the reasoning in Boone and, in an effort to protect a probationer's decision to exercise his right to a probation revocation hearing, adopt a bright-line rule that the activation of a suspended sentence must be vacated whenever it appears the sentence imposed was in part induced by the probationer's exercise of his right to a probation revocation hearing. This we decline to do.
Initially, we note that the trial court did not appear to have considered Defendant's decision to exercise his right to a probation revocation hearing, but rather appeared to have considered Defendant's decision to contest the State's evidence rather than admitting to the violations. See State v. Sellers, 185 N.C. App. 726, 728, 649 S.E.2d 656, 657 (2007) ("The `minimum requirements of due process in a final probation revocation hearing' require . . . (a) a disclosure of the evidence against him, or[] (b) a waiver of the presentation of the State's evidence by an in-court admission. . . ." (emphasis added) (quoting State v. Williamson, 61 N.C. App. 531, 533-34, 301 S.E.2d 423, 425 (1983)).
Furthermore, whereas an accused's right to trial by jury has been recognized as the most "deeply embedded" and most "zealously guarded" right in our system of jurisprudence, Boone, 293 N.C. at 712-13, 239 S.E.2d at 465, a probationer's right to contest the State's evidence at a probation revocation hearing has never attained such a status. Indeed, over the years, probation, and therefore any corresponding right to contest the State's evidence at a probation revocation hearing, has not been viewed as a right of a probationer, but rather as "an act of grace" by the State. State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 57 (1967). It was not until 1973 that the United States Supreme Court held that a probationer is constitutionally entitled to a probation revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778, 782, 36 L. Ed. 2d 656, 662 (1973). However, even now, although the probationer is entitled to a revocation hearing, the full panoply of a defendant's trial protections are not afforded in a probation revocation hearing. See State v. Sparks, 362 N.C. 181, 187, 657 S.E.2d 655, 659 (2008) (noting that the decision to revoke probation affects conditional and not absolute liberty and the rights of an offender in a proceeding to revoke his conditional liberty are not coextensive with the constitutional rights of one on trial in a criminal prosecution). In a probation revocation proceeding, unlike in a criminal prosecution, no formal trial is required, strict rules of evidence do not apply, and the alleged violation of condition of probation need not be proven beyond a reasonable doubt. Id.
We see no reason to protect a probationer's right to a revocation hearing with a categorical rule that a trial court's consideration of the probationer's failure to admit a violation automatically entitles a probationer to a new trial. We do not hold that, in the probation revocation context, a trial judge may always consider a probationer's decision to either admit to a violation or contest the State's evidence. Rather, we simply conclude that the usual abuse of discretion standard sufficiently safeguards a probationer's exercise of his right to contest the State's evidence.
"A sentence activated upon revocation of probation commences on the day probation is revoked and runs concurrently with any other period of probation . . . unless the revoking judge specifies that it is to run consecutively with the other period." N.C. Gen. Stat. § 15A-1344(d) (2009). It is, therefore, within the discretion of a trial judge to decide whether multiple activated sentences should be served consecutively or concurrently. State v. Campbell, 90 N.C. App. 761, 763, 370 S.E.2d 79, 80 (noting that it is "within the authority and discretion of the judge revoking defendant's probation to run the sentence either concurrently or consecutively"), appeal dismissed and disc. review denied, 323 N.C. 367, 373 S.E.2d 550 (1988).
In this case, Defendant presents only the above-quoted statement of Judge Allen as grounds for his argument that the judge abused his discretion in ordering the sentences to be run consecutively. Aside from the trial judge's statement — which may most properly be characterized as an off-hand response to defense counsel's mitigation request, which appears unwarranted under the circumstances — Defendant offers to this Court no argument as to how the trial court's activation of his sentence was not a "conscientious judgment" or was "arbitrary or willful action." State v. Hill, 132 N.C. App. 209, 212, 510 S.E.2d 413, 415 (1999). Because the trial judge's statement, without more, is insufficient to convince this Court that the trial judge abused his discretion — especially considering that the initial judgments on Defendant's guilty pleas ordered that the sentences run consecutively — we conclude that Judge Allen did not abuse his discretion in activating the sentences as originally imposed. Accordingly, the judgments of the trial court are
AFFIRMED.
Judges STEELMAN and HUNTER, JR. concur.
Report per Rule 30(e).