Opinion
No. COA04-1269
Filed 3 May 2005 This case not for publication
Appeal by defendant from order entered 3 March 2004 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 25 April 2005.
Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State. William D. Spence, for defendant-appellant.
Lenoir County, No. 01 CRS 51372.
On 15 January 2002, Isaac Jesse Artis ("defendant") pled no contest to assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant to twenty to thirty-three months' imprisonment, suspended the sentence and placed defendant on thirty-six months supervised probation. Defendant's conditions of his probation were to pay $338.75 in restitution; pay monthly probation supervision fees; attend scheduled appointments with his probation officer; and commit no criminal offense in any jurisdiction. In addition, defendant was ordered to submit to house arrest with electronic monitoring for ninety days, followed by intensive supervision for nine months. On 5 February 2002, defendant's probation officer filed a probation violation report alleging that defendant had violated the house arrest condition because defendant had not provided telephone services for the electronic monitoring. On 14 February 2002, the trial court modified the original judgment by extending defendant's time to obtain telephone service until 13 March 2002. The trial court again modified defendant's probation on 13 March 2002 by continuing defendant on probation due to his compliance with the electronic monitoring.
Approximately two years later on 2 February 2004, defendant's probation officer filed another probation violation report alleging: (1) defendant was $310 in arrears on probation supervision fees, and (2) defendant had been convicted of two counts of driving with no operator's license and one count of operating a vehicle without insurance.
Judge Paul L. Jones held a probation violation hearing on 3 March 2004. Defendant waived his right to counsel and represented himself. Defendant admitted the violations and testified that he was in arrears on his payments because he was in a car accident and lost his job. Defendant admitted that he was driving when he had the accident and that he did not have a license at the time of the accident. Defendant's probation officer informed the court that defendant had already been on house arrest and intensive probation and asked the court to place defendant in custody for a period of forty-five days and for defendant to pay his monies sixty days after his release from jail. The trial court found defendant willfully violated his probation and adopted the recommendation of the probation officer. On 3 March 2004, the trial court ordered defendant's probation was continued with the modification that defendant serve forty-five days in the custody of the Lenior County Sheriff and pay his arrears within sixty days of release from custody. Defendant appeals on the issue of whether defendant willfully violated a condition of his probation without lawful excuse.
It is well settled that "`probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime.'" State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)). All that is required in a hearing to revoke probation is 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." State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). A verified probation violation report is competent evidence sufficient to support revocation of probation. State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981). Once the State meets its burden, the burden then shifts to 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 willful or without lawful excuse." State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). "Any violation of a valid condition of probation is sufficient to revoke [a] defendant's probation." Id.
We conclude the State presented sufficient evidence to show that defendant willfully violated the conditions of his probation without lawful excuse. Here, defendant admitted the two violations. Although defendant informed the trial court that he did not comply with the monetary conditions of his probation because he was in a car accident and lost his job, defendant offered no excuse for violating the condition that he commit no criminal offense. Defendant's admission, without offering any evidence to justify driving without insurance and no operator's license, was sufficient within itself to sustain the trial court's finding that his failure to comply was without lawful excuse. See State v. Alston, 139 N.C. App. 787, 794-95, 534 S.E.2d 666, 671 (2000). We conclude that there is evidence in the record to support the judge's findings that defendant willfully and without lawful excuse violated the conditions of his probation by committing criminal offenses. Furthermore, defendant has not shown that the trial court's decision for defendant to serve an active term of forty-five days as a special probation condition, rather than revoke defendant's probation, was an abuse of discretion.
Affirmed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).