Opinion
No. COA12–1288.
2013-05-21
STATE of North Carolina v. Yonelle KIRKMAN.
Attorney General Roy Cooper, by Assistant Attorney General Rebecca E. Lem, for the State. James E. Tanner, III, for defendant-appellant.
Appeal by defendant from judgment entered 23 May 2012 by Judge Paul L. Jones in Lenior County Superior Court. Heard in the Court of Appeals 11 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Rebecca E. Lem, for the State. James E. Tanner, III, for defendant-appellant.
ELMORE, Judge.
On 23 May 2012, Yonelle Kirkman (defendant) had her probation revoked and her sentences activated after the trial court found that defendant violated a valid condition of her probation. Defendant appeals. After careful consideration, we affirm. However, we remand to the trial court for the limited purpose of correcting the clerical errors in the judgment and commitment forms.
I. Background
On 17 May 2010, defendant pled guilty to charges of possessing drug paraphernalia in 10 CR 50419. The trial court sentenced her to 30 days, suspended, placed her on supervised probation for 12 months, assessed her costs and fines totaling $550.00, and required her to submit to random drug testing. On 10 December 2010, the probation department filed a violation report 10 CR 50419, alleging that defendant had violated numerous conditions of her probation. The trial court issued an order of violation, which confirmed the violations and extended defendant's probation for 12 months.
On 24 February 2011, defendant was arrested for the Class I felony of attempting to obtain a controlled substance by forgery. Defendant pled guilty in 11 CRS 50508 on 3 August 2011; the trial court sentenced her to 6 to 8 months imprisonment, suspended, along with 24 months of supervised probation. Additionally, defendant received an active term of 14 days imprisonment and was assessed costs and fines of $1,124.50.
On 17 October 2011, a violation report was filed in both cases. The trial court entered an order of violation extending defendant's period of intensive supervision by 90 days. On 30 November 2011, another violation report was filed.
The most recent violation report was filed in both cases on 23 March 2012. In 10 CRS 50419, the 23 March violation report alleged that defendant violated her probation by: (1) testing positive for opiates on 23 February 2012 without providing documentation of medication, (2) missing five scheduled office contacts between January and March 2012, (3) violating curfew on 21 February 2012, (4) failing to pay $550.00 in court costs and fees, and (5) failing to pay $530.00 in probation fees. In 11 CRS 50508, the 23 March violation report alleged that defendant violated the terms of her probation by: (1) testing positive for opiates on 23 February 2012 without providing documentation of medication, (2) missing scheduled office contacts, (3) violating curfew on 21 July 2012, and (4) being behind $335.00 on her original obligation.
At the 23 May 2013 probation violation hearing, the trial court revoked defendant's probation and activated her sentences.
II. Analysis
A. Findings of Fact
On appeal, defendant contends that the trial court erred in revoking her probation because the trial court's findings of fact were inadequate to support the revocation. We disagree.
A hearing to revoke a defendant's probationary sentence only requires that the evidence be such as 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 upon which the sentence was suspended. The judge's finding of such a violation, if supported by competent evidence, will not be overturned absent a showing of manifest abuse of discretion.
State v. Young, 190 N.C.App. 458, 459, 660 S.E.2d 574, 576 (2008) (citations and quotations omitted). “[O]nce the State has presented competent evidence establishing a defendant's failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms.” State v. Terry, 149 N.C.App. 434, 437–38, 562 S.E.2d 537, 540 (2002) (citation omitted). 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). “ Any violation of a valid condition of probation is sufficient to revoke defendant's probation.” State v. Tozzi, 84 N.C.App. 517, 521, 353 S.E.2d 250, 253 (1987) (citation omitted) (emphasis added).
In the instant case, the State presented testimony from probation officer Heidi Jones, who had supervised defendant's probation since 19 May 2010. Jones testified that defendant missed her 3 January 2012 appointment. The appointment was rescheduled for two days later; defendant also missed the 5 January appointment. She rescheduled the appointment to 9 January; defendant called in sick. Jones eventually saw defendant 10 January 2012.
Thereafter, defendant missed her 8 February appointment. It was rescheduled to 13 February. Defendant cancelled the 13 February appointment due to alleged car trouble. Defendant also missed her 21 February appointment and her 21 March appointment. Aside from missing numerous appointments, Jones testified that defendant tested positive for opiates on 23 February 2012 and failed to make any payments on her obligations since being placed on probation.
When asked at the probation revocation hearing why she missed the 3 January appointment, defendant stated, “[h]onestly, I don't recall having an appointment on January 3rd.” As far as having missed the other appointments, defendant entered a general denial. Accordingly, the trial court did not err in finding that defendant willfully violated a term of her probation by failing to attend scheduled office visits with her probation officer. Defendant provided no evidence to the contrary. As such, the revocation of defendant's probation and the activation of her sentence was proper.
B. Clerical error
Defendant asserts that a clerical error contained in each judgment and commitment form evidences the trial court's failure to issue a reasoned decision in revoking her probation. We disagree.
This Court has found: “A clerical error is [a]n error resulting from a minor mistake or inadvertence, [especially] in writing or copying something on the record, and not from judicial reasoning or determination.” State v. Lark, 198 N.C.App. 82, 95, 678 S.E.2d 693, 702 (2009) (quotations and citations omitted) (alterations in original). Where a clerical error is found, the case may be remanded, “to the trial court for the limited purpose of correcting the clerical errors in the judgment and commitment forms.” Id. at 95, 678 S.E.2d at 703.
Here, box 2(b) is checked the findings section of each judgment and commitment form. Box 2(b) provides: “defendant waived a violation hearing and admitted that he/she violated each of the conditions of his/her probation as set forth below[.]” The record reflects that defendant participated in the 23 March 2012 probation violation hearing. Thus, the trial court committed a clerical error in checking the box indicating otherwise. See State v. Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349 (2000) (finding the inadvertent checking of a box finding an aggravating factor on a judgment form to be a clerical error). Accordingly, we remand for the limited purpose of correcting the clerical errors in the judgment and commitment forms.
Affirmed; remanded for correction of clerical errors. Judges STEELMAN and STROUD concur.
Report per Rule 30(e).