Opinion
No. COA11–1240.
2012-08-21
STATE of North Carolina v. Donald Edward IRELAND, a/k/a Donald Irelan.
Roy Cooper, Attorney General, by Karissa J. Davan, Assistant Attorney General, for the State. Jon W. Myers for the defendant.
Appeal by defendant from judgment entered 28 April 2011 by Judge Marvin P. Pope in Buncombe County Superior Court. Heard in the Court of Appeals 11 June 2012. Roy Cooper, Attorney General, by Karissa J. Davan, Assistant Attorney General, for the State. Jon W. Myers for the defendant.
THIGPEN, Judge.
Donald Edward Ireland (“Defendant”) appeals from a judgment entered upon revocation of probation and activating his suspended sentence. We affirm.
On 1 November 2010, Defendant pled guilty to one count of indecent liberties with a child. The trial court sentenced Defendant to sixteen to twenty months imprisonment, suspended the sentence, and placed him on supervised probation for thirty-six months. As a special condition of his probation, Defendant was ordered to comply with the Sex Offender Control Program, which required, in part:
5. Participate in a sexual abuse treatment program approved by the supervising officer and complete the same to the full satisfaction of the treatment provider. Comply with all programs, including the polygraph examinations, to be used as a tool in conjunction with the treatment plan developed by the treatment provider. Program participation is defined as attendance at all meetings, prompt payment of fees, admission of responsibility for his/her offense and progress toward reasonable treatment goals.
Defendant signed the special conditions of probation form on 8 December 2010.
On 10 March 2011, Defendant's probation officer filed a violation report alleging that Defendant had violated the special condition of participating in a sexual abuse treatment program. The officer specifically alleged that Defendant had been “found non-compliant with his sex offender treatment at Foundation Psychological Services .”
The trial court held a probation violation hearing on 28 April 2011. Defendant, through counsel, denied the violation. Probation Officer Michael Gier testified that Defendant was ordered to attend and complete the sex abuse treatment program through Foundation Psychological Services; that he was informed in a letter from psychologist Roger Wallace (“Mr.Wallace”) that Defendant was not compliant with his sex offender treatment; and that he filed a violation report based upon Defendant's noncompliance.
Mr. Wallace testified that Defendant completed writing assignments, completed homework, and attended sessions; however, Defendant denied committing a sex offense and insisted he was only tickling the 12–year–old girl. Mr. Wallace testified that Defendant did not make any progress towards the goals he set for Defendant.
As to Defendant's last treatment session on 9 March 2011, Mr. Wallace testified:
[Defendant] interrupted [the session] several times and said, ‘[y]ou won't listen to me. I'm innocent. You won't listen to me,’ and became angry. He stood up and started to walk toward the door. I informed him that leaving before the session was over would constitute noncompliance with treatment, and he left anyway.
Defendant did not present any evidence. At the conclusion of the hearing, he trial court concluded that Defendant had willfully violated his probation by “walk[ing] out of the treatment therapy on March 9, therefore, refusing to receive sex offender specific treatment” and by “not fully participat[ing] in the treatment program” when he disrupted sessions. By judgment entered 28 April 2011, the trial court found Defendant willfully violated the terms and conditions of his probation, revoked Defendant's probation, and activated his original sentence. Defendant appeals.
Defendant contends the trial court erred in revoking his probation when it was revoked on the violation of an unconstitutional condition of probation. Citing In re T.R.B., 157 N.C.App. 609, 582 S.E.2d 279 (2003), disc. review improvidently allowed and appeal dismissed, 358 N.C. 370–371, 595 S.E.2d 146 (2004), Defendant asserts ordering him to participate in a sexual abuse treatment program which required him to admit responsibility for his offense violated his constitutional rights.
In T.R.B., this Court held that the imposition of a special condition of probation requiring a defendant to admit culpability for the crimes charged violated a defendant's constitutional right against self-incrimination, and the lower court was in error to impose such condition. See id. at 622, 582 S.E.2d at 288. We find T.R.B. distinguishable from the present case because the defendant in that case was adjudicated delinquent following a hearing at which respondent testified and denied his guilt. See id. Defendant here, however, voluntarily pled guilty to indecent liberties with a child and agreed to the special conditions of the Sex Offender Control Program. Thus, Defendant had admitted his culpability for the crimes charged prior to being asked to admit responsibility in his sexual abuse treatment program.
Further, the State presented sufficient evidence to show that Defendant willfully violated a condition of his probation without lawful excuse and warranting revocation of probation. See id. at 622–23, 582 S.E.2d at 288 (“Our holding does not prevent a court from revoking probation based upon a probationer's overall failure to participate in a validly required program simply because one aspect of the probationer's refusal to cooperate is an unwillingness to admit responsibility for his offense”).
Here, the violation report stated that Defendant was “found non-compliant with his sex offender treatment[.]” Mr. Wallace testified that Defendant did not make any progress towards his treatment goals and that Defendant left a session early despite being warned that doing so would lead to non-compliance. The 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. See State v. Crouch, 74 N.C.App. 565, 567, 328 S.E.2d 833, 835 (1985). We hold that there is competent evidence in the record to support the judge's findings that Defendant willfully and without lawful excuse violated a condition of his probation. We further hold that it was within the trial court's discretion to revoke Defendant's probation and activate his sentence. See State v. Seay, 59 N.C.App. 667, 670–71, 298 S.E.2d 53, 55 (1982), disc. review denied, 307 N.C. 701, 301 S.E.2d 394–95 (1983) (stating that a breach of any one condition is sufficient grounds to revoke probation). (citations omitted) Additionally, the trial court did not abuse its discretion.
Defendant also “requests this Court to examine the social and treatment aspects of the sexual abuse treatment program.” We decline to do so. The issue of whether alternative therapy and treatment programs should be offered to offenders is a matter better addressed by the legislature.
Accordingly, the trial court's judgment revoking Defendant's probation is affirmed.
AFFIRMED. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).