Opinion
No. COA14–1010.
03-03-2015
STATE of North Carolina v. Chad Ethmond BRASWELL.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Wayne O. Clontz for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State.
Wayne O. Clontz for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Defendant appeals from a judgment revoking his probation and sentencing him to a term of 12 months imprisonment for driving while impaired (“DWI”). Because the trial court did not abuse its discretion when it revoked defendant's probation, we find no error in the trial court's judgment.
On 13 July 2011, in file number 08 CRS 52295, defendant was convicted in Watauga County Superior Court of Level 2 DWI. The trial court sentenced defendant to a suspended term of 12 months' imprisonment, and placed defendant on supervised probation for 18 months.
Defendant's probation officer filed probation violation reports in file number 08 CRS 52995 on 11 December 2012 and 11 January 2013. In the December 2012 violation report, the probation officer alleged that defendant had violated the terms of his probation by: (1) using controlled substances; (2) failing to report as directed to his supervising probation officer; (3) failing to pay costs and fees as directed by the court; and (4) failing to obtain an assessment from the Treatment Alternatives to Street Crime program. In the January 2013 violation report, the probation officer alleged that defendant had further violated the terms of his probation by: (1) failing to surrender his driver's license to the clerk of superior court; (2) operating a motor vehicle while his driving privilege was revoked; and (3) committing the criminal offense of driving while license revoked.
The trial court conducted a hearing on the violation reports on 21 November 2013. At the hearing, defendant admitted, through counsel, that he had committed all of the violations alleged in the reports and that he had actually been convicted of driving while license revoked since the January 2013 violation report had been filed. Based on defendant's admissions, the trial court revoked his probation and sentenced him to 12 months' imprisonment for Level 2 DWI. The court ordered that defendant's sentence run concurrent to a 60–day sentence defendant had been ordered to serve in another case (09 CRS 50190), but that, for reasons unknown to the court, defendant had not fully served. On 2 December 2013, defendant filed a notice of appeal from the judgment revoking his probation.
We first note that the State has filed a motion to dismiss defendant's appeal because the record filed by defendant with this Court is not sufficient to address the claims he presents in his appeal. We agree that the record is insufficient to address defendant's first claim and fails to comply with our Appellate Rules in several respects. Nevertheless, in our discretion, we decline to dismiss defendant's appeal and deny the State's motion.
Defendant first argues that the trial court erred when it revoked and activated his probation in file number 09 CRS 50190, and when it sentenced him in that matter to a term of 60 days' imprisonment without giving him credit for time previously served. The trial court, however, did not revoke defendant's probation in file number 09 CRS 50190 at the 21 November 2013 hearing. The record reflects that the trial court revoked defendant's probation entered in file number 09 CRS 50190 by judgment dated 19 May 2011. Although there is no copy of defendant's notice of appeal of the 19 May 2011 judgment, the record contains an order of this Court dismissing defendant's appeal of that judgment. Defendant has not sought a writ of certiorari from this Court to review that judgment. Accordingly, defendant's first arguments are not properly before this Court and will not be addressed.
Defendant next argues the trial court abused its discretion when it revoked his probation entered in file number 08 CRS 52285. Defendant asserts the court improperly revoked his probation based on allegations filed after he gave notice of appeal from the court's judgment. Defendant's argument is without merit. The trial court revoked defendant's probation based on the alleged violation that, while on probation, he committed a new criminal offense of driving while license revoked. See State v. Nolen,––– N.C.App. ––––, ––––, 743 S.E.2d 729, 730 (2013) (holding that for probation violations occurring on or after 1 December 2011, a trial court may revoke probation where the defendant “commits a new crime in violation of N.C. Gen.Stat. § 15A–1343(b)(1) ”). This violation was included in the violation report filed 11 January 2013. The hearing on the violation report was held 21 November 2013, and defendant admitted that while on probation he committed and had subsequently been convicted of the offense of driving while license revoked. The court entered its judgment on 21 November 2013 and defendant filed his notice of appeal 11 days later on 2 December 2013. The probation violation used by the trial court to revoke defendant's probation was clearly alleged in a report filed months before the revocation hearing, entry of judgment, and filing of defendant's notice of appeal.
Defendant also argues that the trial court made statements at the revocation hearing that “demonstrated a bias or lack of impartiality” by the court. Defendant, however, does not specifically identify any improper statements by the court and we discern none from the transcript of the hearing Accordingly, we hold that the trial court did not abuse its discretion in revoking defendant's probation based on his commission of a new criminal offense.
No error.
Chief Judge McGEE and Judge STEPHENS concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 21 November 2013 by Judge C. Philip Ginn in Avery County Superior Court. Heard in the Court of Appeals 9 February 2015.