Opinion
No. COA11–1423.
2012-05-15
STATE of North Carolina v. Tony Larette BRISTOW.
Attorney General Roy Cooper, by Assistant Attorney General Munje B. Foh, for the State. Peter Wood for defendant-appellant.
Appeal by defendant from judgments entered 4 August 2011 by Judge Franklin F. Lanier in Lee County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Munje B. Foh, for the State. Peter Wood for defendant-appellant.
STEELMAN, Judge.
Where defendant admitted to the probation violations and the willfulness of the violations, the trial court did not abuse its discretion in revoking defendant's probation instead of ordering in-patient drug treatment as requested by defendant.
I. Factual and Procedural History
On 9 April 2008, Tony Larette Bristow (defendant) pled guilty to two counts of felonious sale of marijuana (07 CRS 054677 and 07 CRS 054682). By separate judgments, the trial court sentenced defendant to two consecutive terms of eleven to fourteen months imprisonment, suspended each sentence, and placed defendant on supervised probation for twenty-four months. Conditions of probation for both case numbers included that defendant not use, possess, or control illegal drugs. Defendant was also ordered to pay court costs, fines, and restitution in case number 07 CRS 054677. In November 2009, defendant's probationary period was tolled while two charges of driving while license revoked and misdemeanor possession of marijuana were pending.
Defendant's probation officer filed two violation reports dated 8 March 2011. The first report alleged that defendant had violated the terms of his probation in 07 CRS 054677 by: (1) failing to pay his monetary obligation; and (2) testing positive for marijuana on five occasions. The second report alleged that defendant had violated the terms of his probation in 07 CRS 054682 by testing positive for marijuana on five occasions. On 1 August 2011, the probation officer filed an addendum to the violation report in each case alleging that defendant violated his probation by testing positive for marijuana on five more occasions.
Defendant admitted the violations and admitted the willfulness of his marijuana use. Judge Lanier found that defendant willfully violated the terms and conditions of his probation and activated defendant's original sentences.
Defendant appeals.
II. Revocation of Probation
In his only argument on appeal, defendant contends that the trial court abused its discretion when it revoked his probation and activated his suspended sentences. We disagree.
It is well settled that “ ‘[p]robation 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) (alteration in original) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)). To revoke a defendant's probation, the evidence need only “reasonably satisfy the [trial court] in the exercise of [its] 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 judge has the authority to terminate, modify, extend or revoke a probationary sentence upon finding a probationer to be in willful violation of the conditions of probation. N.C. Gen.Stat. § 15A–1344(a) (2011). Further, a trial court's judgment revoking a defendant's probation will only be disturbed upon a showing of a manifest abuse of discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
Defendant admitted willfully violating his probation by testing positive for marijuana. Thus, 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. Although the trial court was authorized to modify defendant's probationary period as defendant suggests, we hold that it was within the trial court's discretion to revoke defendant's probation and activate his sentences. The trial court's judgments revoking defendant's probation are affirmed.
AFFIRMED. Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).