Opinion
No. COA03-430
Filed May 18, 2004 This case not for publication
Appeal by defendant from judgment entered 16 October 2002 by Judge Peter M. McHugh in Guilford County Superior Court. Heard in the Court of Appeals 12 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State. James M. Bell for defendant-appellant.
Guilford County No. 00 CRS 84852.
Defendant appeals from a judgment revoking his probation and activating his suspended sentence of six to eight months of imprisonment.
On 5 September 2000, the trial court placed defendant on supervised probation for a period of thirty-six months upon his no contest plea to felony possession of cocaine. A report filed by defendant's probation officer on 25 January 2002 charged him with the following probation violations: (1) failure to report to the probation officer on eight occasions; (2) failure to satisfy the monetary conditions of probation; (3) failure to be at home for visits from his probation officer; and (4) committing and being convicted of the offense of public consumption. In an order dated 11 March 2002, the trial court found defendant guilty of the violations charged in the report, continued him on probation, and ordered defendant to write a three-page letter of apology to his probation officer.
A second violation report filed 3 July 2002 charged defendant with missing seven scheduled appointments with his probation officer and failing to complete the letter of apology as ordered on 11 March 2002. In an "ADDENDUM" to this report filed 26 August 2002, defendant was charged with missing four additional appointments and advising his probation officer that he would not attend any future appointments or comply with the terms of his probation.
At his 16 October 2002 hearing, defendant admitted the charged violations and further admitted that "they were willful and without lawful excuse." Upon inquiry from the trial judge, the probation officer recommended that defendant's probation be revoked. Asked the basis of her recommendation, the officer first noted defendant's failure to complete the three-page letter of apology as ordered by Judge Burke. Defense counsel objected to the court's consideration of "everything that happened prior to this violation we're here on." The court replied, "In the face of your admission, I'll consider any evidence the officer has. I've asked her to explain the reasons for her recommendation [of revocation]." The probation officer then described defendant's refusal to submit to her supervision. In response, defense counsel explained that defendant was working two jobs in order to pay back child support and thus had a difference of opinion with the probation officer regarding "what the priorities in his life ought to be[.]"
At the conclusion of the hearing, the trial judge found defendant had violated the conditions of his probation as alleged in the report filed 26 August 2002 "without cause, provocation or justification." The judge further found defendant's behavior "constitutes a refusal . . . to be supervised and is in direct willful violation of a lawful order of the Superior Court that he abide by probation supervision."
Defendant claims on appeal that the trial court erred in considering evidence of any misconduct charged in the 3 May 2002 violation report because the judgment revoking his probation and hearing transcript refer exclusively to the 26 August 2002 violation report. While he "acknowledges that there are no controlling cases that would exclude consideration of evidence such as was considered in the instant case[,]" defendant insists the court's decision to revoke probation must be based only on evidence of the violations that are then before the court.
It is well-established that probation is an act of grace by the State, and that probation revocation proceedings are informal in nature and not governed by the strict rules governing a criminal trial. See, e.g., State v. Terry, 149 N.C. App. 434, 437, 562 S.E.2d 537, 540 (2002). In the instant proceeding, defendant acknowledged to the trial court that he willfully and without lawful excuse violated the conditions of his probation as charged by his probation officer. Upon this admission, the court was free within its sound discretion to revoke defendant's probation. See Terry, 149 N.C. App. at 437-38, 562 S.E.2d at 540; State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). In exercising its discretion, the court was entitled to consider the entirety of the probation officer's experience with defendant as well as her recommendation as to the appropriate disposition. Cf. Duncan, 270 N.C. at 245, 154 S.E.2d at 57 (noting that a proper exercise of judicial discretion "takes account of the . . . particular circumstances of the case"). Finding no manifest abuse of discretion by the court here, see State v. Robinson, 248 N.C. 282, 285-86, 103 S.E.2d 376, 379 (1958), we affirm the judgment.
Affirmed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).