Opinion
No. COA15-645
05-10-2016
STATE OF NORTH CAROLINA v. TROY LEE WATERS, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Arnold & Smith, PLLC, by Kyle Frost, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Iredell County, Nos. 06 CRS 57322, 57375, 58899, 60631-36, 14 CRS 2065-66 Appeal by defendant from judgments entered 5 January 2015 by Judge Julia Lynn Gullett in Iredell County Superior Court. Heard in the Court of Appeals 17 November 2015. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Arnold & Smith, PLLC, by Kyle Frost, for defendant-appellant. GEER, Judge.
Defendant Troy Lee Waters appeals from judgments of the Iredell County Superior Court revoking his probation and activating his suspended sentence. On appeal, defendant argues that the trial court failed to make sufficient findings of fact as to how he violated the terms of his probation and argues, further, that the only evidence in support of the sole probation violation report upon which the trial court could properly rely amounted to inadmissible hearsay evidence. We find that the trial court's findings of fact, incorporating his probation officers' violation reports, were, under controlling authority, sufficient to support the court's conclusion that defendant violated the terms of his probation. We also hold that defendant's arguments concerning hearsay evidence are immaterial because the strict rules of evidence are not applicable to probation revocation hearings. Consequently, we affirm the rulings of the trial court.
Facts
Defendant pled guilty to 10 counts of felony conversion on 16 February 2007. The trial court sentenced him to 10 consecutive sentences of 12 to 15 months imprisonment, but suspended the sentences and placed defendant on supervised probation for a term of 60 months. The terms of defendant's probation required that he not commit any criminal offense in any jurisdiction, report as directed by the court or the probation officer to the officer at reasonable times and places and in a reasonable manner, permit his probation officer to visit at reasonable times, answer all reasonable inquiries by the probation officer, obtain prior approval from the probation officer for any change in address or employment, notify the probation officer if he was to fail to obtain or retain satisfactory employment, and visit with the probation officer at a facility maintained by the Division of Prisons. Defendant was also required to make restitution to all victims, including unknown victims that came forward during the probationary period with a legitimate claim.
On 22 August 2008, in case No. 06 CRS 58898, the trial court revoked defendant's probation and activated his suspended sentence for one of the 10 counts of criminal conversion based on several probation violations. As a result, defendant was incarcerated from 22 August 2008 until 11 August 2009, and the trial court ordered that after completion of the active sentence, his probation would continue for the remaining offenses. Consequently, defendant's probationary term extended beyond the original 16 February 2012 expiration date.
The records for this case are not found in the Record on Appeal, and it has no bearing on the outcome of defendant's appeal. It is only referenced as the case in which one of defendant's sentences was activated.
Throughout much of 2011, Probation Officer Stephanie Smart of the North Carolina Department of Public Safety acted as defendant's probation officer. Probation Officer Donald Buterbaugh of the North Carolina Department of Public Safety also assisted Officer Smart when she was on maternity leave until June of 2011. Officer Smart was unable to locate defendant as of July 2011 and eventually filed a violation report on 4 August 2011, alleging defendant had violated his probation by failing to report as directed and failing to remain within the jurisdiction without permission to leave. Defendant was finally arrested five months later on 30 January 2012.
On 5 August 2013, defendant filed a motion for appropriate relief ("MAR") alleging that the 16 February 2007 suspended sentence judgment, requiring that defendant pay restitution to each victim who came forward during the probationary period, was defective because there were no documents in the court file to establish a definite amount of restitution owed by defendant. On 6 February 2014, the trial court granted defendant's MAR, ruling, among other things, that the method of establishing the restitution amount in this matter was invalid as a matter of law. The trial court deferred ruling on the State's motion to reconsider the MAR, which was still pending as of this appeal.
Meanwhile, Officer Buterbaugh, after permanently taking over as defendant's probation officer in May 2013, filed violation reports on 28 April and 22 December 2014. In the 28 April 2014 violation report, Officer Buterbaugh alleged defendant violated probation by failing to pay to the Clerk of Superior Court the total amount due as directed. In the 22 December 2014 violation report, Officer Buterbaugh alleged defendant violated his probation by committing other criminal offenses for which he was convicted on 14 September 2012 and 11 February 2013.
The violation reports filed by Officer Buterbaugh and Officer Smart in August 2011 came on for hearing on 5 January 2015. At this hearing, the trial court orally made the following findings of fact:
Court finds then that the court records show that on or about August 4th of 2011 that a violation report was filed with the Clerk alleging among other things that the Defendant absconded probation. Court find[s] that on January 3rd of 2012, the Defendant was served with an
Order for Arrest, some five months after the violation report was filed with the Clerk.
Court finds that Officer Buterbaugh testified that he knew from personal knowledge that Probation Officer Smart was having a difficult time locating the Defendant. . . . The Court is reasonably satisfied that the Defendant was an absconder from probation and does find that violation to be substantiated.
At the conclusion of the probation violation hearing, the trial court revoked defendant's probation on the basis that "he was an absconder." It further found that "he was in arrears as of his fees and fines[,]" that the court "is not making any finding with respect to any restitution[,]" and, ultimately, that each violation by itself was a separate basis on which to revoke probation. On the same day of the hearing, the trial court entered a Judgment and Commitment Upon Revocation of Probation (AOC-CR-607) form for each offense. In the findings section of each form, the trial court marked the box stating: "The defendant is charged with having violated specified conditions of the defendant's probation as alleged in the . . . Violation Report(s) on file herein, which is incorporated by reference."
Each form stated that the facts and conditions of each violation are set forth "in Paragraph(s) 1&2 of the Violation Report or Notice dated 8/4/2011" and "in Paragraph(s) 1&2 of the Violation Report or Notice dated 12/22/2014." The violations in the first two paragraphs of the 4 August 2011 violation reports, filed by Officer Smart, included a failure to "Report as direct[ed]" and failure to "Remain within the jurisdiction of the Court." The violations reported in the first two paragraphs of the 22 December 2014 reports, filed by Officer Buterbaugh, stated that defendant had violated the probation condition that he "[c]ommit no criminal offense in any jurisdiction" and detailed his pending charges for possession of drug paraphernalia and his convictions of obtaining property by false pretenses in Gaston County.
The trial court activated defendant's sentences for the remaining nine counts of criminal conversion, requiring defendant to serve nine consecutive terms of 12 to 15 months imprisonment. Defendant timely appealed to this Court.
Discussion
Defendant first contends that the trial court made insufficient findings of fact to support its decision to revoke defendant's probation. Specifically, defendant claims that the trial court's completion of form AOC-CR-607 and incorporation of the probation officers' violation reports cannot amount to a sufficient finding that defendant was in violation of his probation. We disagree.
Defendant also argues that the trial court committed plain error by making insufficient findings of fact. However, plain error review is only appropriate for reviewing "instructions to the jury and evidentiary matters." State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (2000). We also note that plain error review is reserved for "an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action." N.C.R. App. P. 10(a)(4). Findings of fact, however, are specifically "deemed preserved . . . without any such action." N.C.R. App. P. 10(a)(1). Therefore, plain error does not apply to the issue defendant raises regarding the trial court's findings of fact.
When reviewing a judgment revoking probation, we must examine whether:
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) (internal citation and quotation marks omitted).
Pursuant to N.C. Gen. Stat. § 15A-1345(e) (2015), "Before revoking or extending probation, the court must . . . hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings." When revoking probation, due process requires that at a minimum the trial court must make written "findings of fact as to the evidence relied on" and "reasons for revoking probation." State v. Williamson, 61 N.C. App. 531, 534, 301 S.E.2d 423, 425 (1983).
Defendant, citing to Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982), argues that "a proper finding of facts requires a specific statement of the facts on which the rights of the parties are to be determined, and those findings must be sufficiently specific to enable an appellate court to review the decision and test the correctness of the judgment." He claims that the trial court's incorporation of his probation officer's violation reports and the act of checking off the boxes on the AOC Form CR-607 is insufficient to meet this standard.
However, this Court, in State v. Henderson, 179 N.C. App. 191, 196-97, 632 S.E.2d 818, 822 (2006), addressed this precise issue, acknowledging:
the trial court set forth its findings on the form for Judgment and Commitment Upon Revocation of Probation, AOC-CR-608. The form stated, albeit mostly in preprinted text, that (1) the record together with the evidence presented at the hearing had been considered, (2) defendant was charged with violation of probation conditions as alleged in the violation reports, which were incorporated by reference, (3) the trial court was reasonably satisfied, by the evidence presented, that defendant violated each of the conditions set forth in the violation reports dated 5 April 2005, and (4) each violation was sufficient to revoke defendant's second probation and activate his suspended sentence.In rejecting the defendant's arguments that the trial court's findings as stated above were insufficient, this Court concluded that "the completed form, together with the probation violation report which was incorporated by reference, contained sufficient findings of fact to support revocation of defendant's second probation." Id. at 197, 632 S.E.2d at 822. The Henderson Court expressly rejected the defendant's reliance on Quick, which defendant here has also cited in support of the same argument.
Henderson is materially indistinguishable from this case and, therefore, is controlling. Under Henderson, the form orders entered by the trial court on 5 January 2015, incorporating by reference the probation violation reports of Officers Smart and Buterbaugh, are sufficient to support the trial court's conclusion that defendant willfully violated a valid condition of his probation. Accordingly, we reject defendant's arguments that the trial court's findings are insufficient simply because they incorporate his probation officers' violation reports by reference.
Defendant next contends that the trial court improperly revoked his probation on 5 January 2015 because the 22 December 2014 violation report relied upon by the trial court was, defendant argues, filed outside the original 60-month probation period ending on 16 February 2012. Even though defendant's probationary period was extended pursuant to the 22 August 2008 order, which activated one of his sentences for failure to pay restitution, defendant claims that the order granting his MAR with respect to the restitution award essentially invalidated the 22 August 2008 order and, therefore, nullified the extension of his probation.
Even assuming, without deciding, that the order granting his MAR could have the effect of restoring the termination date of his probationary period to 16 February 2012, that result would not require reversal. Defendant concedes that the 4 August 2011 report falls within the original probationary period. Further, the trial court expressly found that "[e]ach violation is, in and of itself, a sufficient basis upon which the Court should revoke probation and activate the suspended sentence." Consequently, the violations set forth in the 4 August 2011 report are sufficient to support defendant's probation revocation.
Defendant, however, argues that the trial court could not rely on this 4 August 2011 report filed by Officer Smart because she was not present at the hearing to testify to the two violations of failing to report as directed and failing to remain within the jurisdiction of the court contained in her report. Defendant contends that the probation violation report and the testimony of Officer Buterbaugh concerning Officer Smart's violation report constitute inadmissible hearsay evidence that cannot support a finding of a probation violation.
It is, however, well settled, as defendant concedes, that the trial court in a probation revocation hearing is not bound by the formal rules of evidence. Our Supreme Court has held explicitly that "[b]ecause the proceeding was a probation revocation hearing, the trial court was not bound by the formal rules of evidence and acted within its discretion when it admitted the hearsay evidence." State v. Murchison, 367 N.C. 461, 465, 758 S.E.2d 356, 359 (2014). Furthermore, this Court has held, in the face of a defendant's argument that an out of state probation violation report was inadmissible hearsay, that "[i]n a probation revocation hearing the court is not bound by strict rules of evidence." State v. Coleman, 64 N.C. App. 384, 384, 307 S.E.2d 207, 207 (1983).
Defendant attempts to distinguish the facts of this case from the ruling in Coleman because this Court found there was evidence other than hearsay evidence to support a revocation of the defendant's probation in that case. See id. at 385, 307 S.E.2d at 208. However, Coleman does not stand for the rule that hearsay evidence is inadmissible in a probation revocation hearing and our Supreme Court in Murchison has expressly concluded otherwise. We are bound by Murchison and hold, accordingly, that the trial court "acted within its discretion when it admitted the hearsay evidence." 367 N.C. at 465, 758 S.E.2d at 359.
Thus, even if Officer Smart's report was the only report filed within defendant's original probationary period, an issue we do not address, defendant's probation revocation is still supported because, as stated in the revocation judgments, each individual violation report establishes "a sufficient basis upon which this Court should revoke probation and activate the suspended sentence." Consequently, we affirm the judgments of the trial court revoking defendant's probation and activating his nine sentences for criminal conversion.
AFFIRMED.
Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).