Opinion
No. COA12–1096.
2013-05-7
STATE of North Carolina v. Leroy GRIMES, Jr.
Attorney General Roy Cooper, by Assistant Attorney General Saurabh A. Patel, for the State. Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for defendant-appellant.
Appeal by defendant from judgment entered 9 April 2012 by Judge J. Carlton Cole in Pitt County Superior Court. Heard in the Court of Appeals 22 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Saurabh A. Patel, for the State. Harrington, Gilleland, Winstead, Feindel & Lucas, LLP, by Anna S. Lucas, for defendant-appellant.
STEELMAN, Judge.
Where defendant admitted all of the violations alleged by his probation officer and failed to show that the violations were not willful, the trial court did not abuse its discretion in revoking defendant's probation.
I. Factual and Procedural Background
On 5 October 2011, Leroy Grimes, Jr., (defendant) pled guilty to possession of a firearm by a felon. The trial court sentenced defendant to fifteen to eighteen months imprisonment, suspended the sentence, and placed him on supervised probation for twenty-four months. The trial court ordered that defendant be on intensive supervision for six months.
On 13 February 2012, defendant's probation officer filed a violation report alleging that defendant had violated the conditions of his probation by: (1) not abiding by his curfew on 4 and 10 November 2011, 5 and 19 January 2012, and 29 December 2012; (2) being in arrears on his court fees; and (3) being in arrears on his probationary fees. In an addendum to the violation report filed on 2 April 2012, the probation officer alleged: (1) defendant admitted to using marijuana in March 2012; and (2) defendant did not abide by his curfew on ten additional occasions.
A probation violation hearing was held on 9 April 2012. Defendant admitted the violations set out in the February 2012 violation report and in the addendum. The probation officer pointed out that two of defendant's curfew violations occurred in November 2011 and asked for revocation of probation. Counsel for defendant agreed that two violations occurred before 1 December 2011, “which allows him to make that recommendation of revocation[,]” but asked the court to continue defendant on probation. By judgment entered 9 April 2012, the trial court found defendant willfully violated the terms and conditions of his probation as set forth in paragraphs 1–3 of the 13 February 2012 violation report and in paragraphs 1–2 of the 2 April 2012 addendum violation report. The trial court further found that each violation in and of itself was a basis for revocation. The trial court revoked defendant's probation and activated his suspended sentence.
1 December 2011 is the effective date for the Justice Reinvestment Act. Under the new law, for probation violations which occur on or after 1 December 2011, the court may not revoke probation for violations other than those where the defendant committed another criminal offense (N.C.Gen.Stat. § 15A–1343(b)(1)) or where the defendant absconded (N.C.Gen.Stat. § 15A–1343(b)(3a)). See 2011 N.C. Sess. Law 192.
Defendant appeals.
II. Revocation of Probation
In his only argument on appeal, defendant contends that the trial court erred when it revoked defendant's probation. We disagree.
A. Standard of Review
In order to revoke a defendant's probation, the evidence need only “reasonably satisfy the [trial court] in the exercise of [its] 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. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). The breach of any one condition of probation is sufficient grounds to revoke a defendant's probation. State v. Seay, 59 N.C.App. 667, 670–71, 298 S.E.2d 53, 55 (1982). A verified probation violation report is competent evidence that a violation occurred. State v. Duncan, 270 N.C. 241, 246, 154 S.E .2d 53, 58 (1967). A trial court's judgment revoking a defendant's 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).
B. Analysis
Defendant argues that the trial court abused its discretion because it considered factors not alleged in the probation violation reports in activating his suspended sentence. Specifically, defendant asserts that the trial court believed that defendant was inadequately supporting his child and took this belief into consideration in deciding whether to activate his sentence.
Defendant's arguments fail to establish an abuse of discretion by the trial court. The verified violation report alleged that defendant willfully violated a condition of his probation that he “[n]ot be away from the defendant's residence during the specified hours as set by the court or probation officer [.]” At the probation hearing, defendant admitted to all the violations alleged in the probation violation report and addendum. Further, defendant offered no excuse or lack of willfulness for violating the conditions of his probation. A defendant has the burden of showing excuse or lack of willfulness; otherwise, evidence of failure to comply is sufficient to support 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). As a result of this violation, the trial court had the discretion to revoke defendant's probation, and it exercised this discretion appropriately. This argument is without merit.
The judgment revoking defendant's probation and activating his sentence is affirmed.
AFFIRMED. Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).