Opinion
No. COA08-1200.
Filed May 5, 2009.
Brunswick County Nos. 04 CRS 56630-31
Appeal by defendant from judgments entered 7 May 2008 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 27 April 2009.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Ted R. Williams, for the State. Betsy J. Wolfenden, for defendant-appellant.
Julie Ann Dougherty ("defendant") appeals the revocation of her probation. For the following reasons, we affirm.
On 25 April 2005, defendant pled guilty to two counts of felony worthless check and was sentenced to two consecutive terms of six to eight months imprisonment. The trial court suspended defendant's sentences, placed her on supervised probation for sixty months, and ordered her to pay $6,000 restitution. Subsequent to her being placed on probation, defendant was extradited to Pennsylvania to serve a term of imprisonment.
On 4 October 2007, defendant's probation officer filed probation violation reports alleging that defendant had been released from custody in Pennsylvania in July 2007, and had failed to contact the probation office as required by the regular terms of her probation.
The trial court held a probation violation hearing on 7 May 2008. Defendant, through counsel, denied violating her probation. Defendant's probation officer testified that defendant did not contact her upon her release from prison in Pennsylvania. Defendant testified that she did not contact her North Carolina probation officer because her Pennsylvania parole officer told her that he would do so. The trial court found that defendant willfully violated the terms of her probation without lawful excuse. Accordingly, the trial court revoked defendant's probation and activated her suspended sentences. Defendant appeals.
Defendant first argues that the trial court abdicated its role as independent decision maker and violated her right to an impartial judge by assuming the role of prosecutor and conducting examination of the witnesses. She further contends that the trial court erroneously considered evidence of conduct not alleged in the probation violation report, and used that evidence as a basis to revoke her probation. We are not persuaded.
During the revocation hearing, the trial judge conducted the following examination of defendant's probation officer, Kelly Webb:
THE COURT: . . . Madame probation officer, you said there are folk right here in this courthouse who hadn't been repaid?
MS. WEBB: Yes, Ma'am.
THE COURT: Cheryl Haire, Ocean Isle Beach, $6,000.00?
MS. WEBB: Yes, Ma'am. She works in juvenile.
THE COURT: Oh. Was it a forged check?
MS. WEBB: Yes, Ma'am. I think it was for a vehicle.
Ms. Haire came and asked me about this case just yesterday.
THE COURT: Okay.
[ASSISTANT DISTRICT ATTORNEY]: Your honor, Ms. Haire did voice an opinion as to — as a victim, of what she would like to see happen in this case as well.
THE COURT: Okay. All right. Well, when we get to that point, I'll let you all tell me. I just was not familiar with Ms. Haire — not that I need to be, but she said it from the witness stand, so I just wanted to know who it was. All right.
. . .
THE COURT: . . . And I have another question.
MS. WEBB: Yes, Ma'am.
THE COURT: Did Wachovia not give Ms. Haire the money back?
MS. WEBB: I don't know exactly how all that came about. I don't think so. I think that that came out of her pocket.
THE COURT: Okay. Can we find out, please?
MS. WEBB: Sure.
Then, prior to finding defendant in willful violation of her probation, the trial court examined the defendant and her victim as follows:
THE COURT: Ma'am? Ms. Doughterly (sic), were you working [in Pennsylvania] before your arrest?
. . .
MS. DOUGHERTY: Yes, I was working at the — I had gotten a job through the Department of Agriculture and I fell on February lst and broke my ankle in an ice storm and I couldn't go to work then for a while. And when I got the cast off, it was two days before I came down here. And there is documented proof of that, through the hospitals in Pennsylvania.
THE COURT: And were you receiving worker's compensation or anything like that?
MS. DOUGHERTY: No, Ma'am.
THE COURT: How much money were you making, please at your job?
MS. DOUGHERTY: It varied week to week, depending on how many hours I worked.
THE COURT: How much did you make per hour?
MS. DOUGHERTY: It was $9.00.
THE COURT: Are you paying any other restitution in any other matters?
MS. DOUGHERTY: I've been ordered to pay $50.00 a month in Pennsylvania.
THE COURT: And do you know what your outstanding restitution is in those matters?
MS. DOUGHERTY: It's over $100,000.00
THE COURT: Thank you, very much. Anything else on behalf of your client, Ma'am?
[DEFENDANT'S ATTORNEY]: No, Ma'am.
THE COURT: All right. The court sees the victim here, from this case. Ma'am, if you'll be sworn, please? I just wanted to ask you a few questions.
. . .
THE COURT: Okay. And, Ms. Haire, Ma'am, I see that the check was drawn on the Bank of Wachovia?
MS. HAIRE: That is correct.
THE COURT: All right. For the sum of $6,000.00?
MS. HAIRE: Yes.
THE COURT: Okay. And did Wachovia refund these monies to you?
MS. HAIRE: No, Ma'am. It was non-sufficient funds. I have a copy.
THE COURT: Oh. I thought it was a forged check. She made the check to you, in the amount of $6,000.00?
MS. HAIRE: She did. She wrote the check to me, in the amount of $6,000.00. And I did not get refunded.
MS. WEBB: Yes, Ma'am. It was a felony worthless check. Not forgery.
THE COURT: Okay.
MS. HAIRE: Okay.
THE COURT: And it was for the purchase of a vehicle?
MS. HAIRE: Yes.
THE COURT: Was that vehicle returned to you?
MS. HAIRE: That vehicle was — I was going — by coincidence, I was going home one evening from work and passed, the law had stopped the vehicle. When I recognized it, I pulled over. We had been trying to locate her. She had since moved. She had been pulled over, I think, for a faulty license tag; something of that nature. I provided the Ocean Isle police officers proof that we were owner and that we still carried insurance on it. He handed the keys to me. The vehicle was taken to the shop and where the motor and everything was ruined. The transmission was blown, everything that could be wrong with the car. So they just — it was useless. I guess they sold it for scrap. So we lost the money that was originally to be paid back for the vehicle. And I have her notarized note here on that.
. . .
THE COURT: . . . I was just wondering if you got the benefit from the sale of the vehicle?
MS. HAIRE: No, Ma'am. I did not.
THE COURT: All right. Thank you, very much.
Defendant claims that she was prejudiced by the trial court's examination of the witnesses, because the trial court focused on her ability to make restitution, rather than whether she violated her probation. Defendant contends that this suggests that the trial court would not have revoked her probation had she been able to make restitution to Ms. Haire, an allegation not included in the violation report. We disagree.
It is well settled that "`probation or suspension of sentence is an act of grace' and not a right." State v. Alston, 139 N.C. App. 787, 794, 534 S.E.2d 666, 670 (2000) (quoting State v. Baines, 40 N.C. App. 545, 550, 253 S.E.2d 300, 303 (1979)). Although the Rules of Evidence are not applicable to probation revocation hearings, the trial court's questioning would have been appropriate even if they were applicable. See N.C. Gen. Stat. § 8C-1, Rule 1101(b)(3) (2007). Pursuant to Rule 614, it is permissible for a trial court to "question a witness for the purpose of clarifying a witness' testimony and for promoting a better understanding of it." State v. Chandler, 100 N.C. App. 706, 710, 398 S.E.2d 337, 339 (1990) (citing State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d 403, 409 (1986).
Here, it is evident from the record that the purpose of the trial court's examination was to clarify the nature of the underlying charges against defendant and give the trial court a better understanding of the history of the case. Furthermore, because a revocation hearing is held without a jury, defendant can demonstrate no prejudice here in the trial court's examination of the witnesses. See In re L.B., 184 N.C. App. 442, 451, 646 S.E.2d 411, 416 (2007) ("the danger of impartiality is relevant primarily in a jury trial" because in a bench trial, the trial court is the "ultimate arbiter" as to the weight of the evidence or the credibility of the witnesses). Accordingly, we cannot discern that the trial court abused its discretion in questioning these witnesses.
Defendant next argues that there was insufficient evidence to support a finding that she willfully violated her probation. She contends that she was in contact with her parole officer in Pennsylvania, and was told that he would make contact with her probation officer in North Carolina on her behalf at the completion of her parole. We are not persuaded.
This Court has stated that:
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) (internal citations omitted). In the instant case, the State alleged that defendant failed to contact her probation officer as required by the regular conditions of her probation. At the hearing, defendant's probation officer testified that defendant did not contact her. The burden then shifted to defendant to show excuse or lack of willfulness. If a defendant fails to carry this burden, evidence of failure to comply may justify a finding that the violation was willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985) (citing State v. Young, 21 N.C. App. 316, 320-21, 204 S.E.2d 185, 187 (1974)).
Here, defendant admitted that she did not contact her probation officer in North Carolina. She attempted to offer evidence of an excuse, by claiming that she was informed by her parole officer in Pennsylvania that he would contact her probation officer on her behalf. However, defendant failed to present any evidence to support her testimony. Because defendant presented no competent evidence showing excuse or lack of willfulness as to the probation violation set forth in the probation violation report, she failed to carry her burden. Therefore, we conclude that the trial court did not abuse its discretion by revoking defendant's probation. Accordingly, we affirm.
Affirmed.
Judges Robert C. HUNTER and STEELMAN concur.
Report Per Rule 30(e).