Opinion
No. COA10-1164
Filed 3 May 2011 This case not for publication
Appeal by Defendant from judgment dated 10 May 2010 by Judge Jerry Cash Martin in Forsyth County Superior Court. Heard in the Court of Appeals 25 April 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Donald R. Teeter, Sr., for the State. J. Edward Yeager, Jr. for Defendant.
Forsyth County No. 07 CRS 62260.
In December 2007, Defendant Kerney Damone Bennett, Jr. ("Bennett") was arrested on a warrant alleging robbery with a dangerous weapon. On 10 June 2008, pursuant to a plea agreement, Bennett pled guilty to the lesser charge of common law robbery in exchange for a probationary sentence. Based on Bennett's plea, the trial court imposed a sentence of 8 to 10 months imprisonment, suspended that sentence, and placed Bennett on 36 months of supervised probation. As conditions of probation, inter alia, Bennett was prohibited from using, possessing, or controlling any illegal drugs and was required to submit to drug testing when instructed by his probation officer.
On 15 February 2010, Bennett's probation officer filed a probation violation report alleging that: (1) Bennett tested positive for marijuana on 23 July and 3 September 2009 and 19 January 2010; (2) Bennett was in arrears on his monetary court obligation; (3) Bennett was in arrears on his probation supervision fees; (4) Bennett had been unsuccessfully discharged from the TASC ("Treatment Accountability for Safer Communities") program due to non-compliance; and (5) Bennett had pending criminal charges for possession of stolen goods and attempted uttering. On 19 April 2010, Bennett's probation officer filed an addendum to the report alleging that: (1) Bennett tested positive for marijuana on 19 April 2010, and (2) Bennett had a pending criminal charge for simple assault.
At the 10 May 2010 probation revocation hearing, Bennett admitted his violations, but denied that his violations were willful. At the close of the hearing, the trial court found that Bennett had willfully violated the terms and conditions of his probation by testing positive for marijuana, by failing to comply with the monetary obligations of his probation, and by failing to complete the TASC program. Accordingly, the trial court revoked Bennett's probation and activated his sentence of 8 to 10 months imprisonment. From this judgment, Bennett appeals.
As his sole argument on appeal, Bennett contends that the trial court erred in revoking his probation because Bennett "demonstrate[d] some changes in his life which would have allowed him to be successful on probation." Under N.C. Gen. Stat. § 15A-1344, a trial court has the authority to reduce, terminate, continue, extend, modify, or revoke probation upon a finding that the defendant violated the conditions of probation. N.C. Gen. Stat. § 15A-1344 (2009). "Findings made in support of revoking probation must be supported by competent evidence, and will not be disturbed on appeal without a showing that the trial court committed a manifest abuse of discretion." State v. Sherrod, 191 N.C. App. 776, 777-78, 663 S.E.2d 470, 472 (2008) (internal quotation marks omitted).
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[.]" State v. Lucas, 58 N.C. App. 141, 145, 292 S.E.2d 747, 750 (internal quotation omitted), disc. review denied, 306 N.C. 390, 293 S.E.2d 593 (1982). If the State presents evidence that the defendant has violated a condition of probation, the burden shifts to the defendant "to present competent evidence of his inability to comply with the conditions of probation; and [] 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).
In this case, Bennett argues that he changed many aspects of his life and was willing to comply with the terms of his probation. At the hearing, Bennett testified that he was employed, was in school, and was attending the Darryl Hunt Project to obtain job skills. Additionally, Bennett admitted to using marijuana in the past, but claimed that he had stopped using it and was no longer associating with individuals who used marijuana. Bennett testified that he wished to re-enter TASC and was prepared to complete the requirements of his probation. Thus, Bennett claims that, based on his testimony at the hearing, the trial court abused its discretion by revoking his probation. We disagree.
Despite Bennett's evidence regarding his changed circumstances, the record contains sufficient evidence to support the trial court's finding that Bennett willfully violated the special condition of his probation that he "[n]ot use, possess or control any illegal drug or controlled substance unless it has been prescribed for [him] by a licensed physician[.]" The State's evidence tends to prove that Bennett tested positive for marijuana on 3 September and 23 July 2009, and 19 January and 19 April 2010. Further, when asked whether he used marijuana, Bennett admitted that "[a]t the beginning I was. But the last recently, I haven't. I've just been around it." Bennett also testified that it had been over a month since he last used marijuana. This evidence is sufficient to demonstrate that Bennett violated the condition of probation that he not use illegal drugs.
Although we have only addressed the violation pertaining to Bennett's use of controlled substances, we need not address the other violations, because "[a]ny violation of a valid condition of probation is sufficient to revoke defendant's probation." Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. We therefore find no abuse of discretion in the trial court's revocation of Bennett's probation. Accordingly, we affirm the trial court's judgment revoking Bennett's probation and activating his sentence of 8 to 10 months imprisonment.
AFFIRMED.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).