Opinion
No. COA09-1053.
Filed April 6, 2010.
Carteret County Nos. 07 CRS 50598-50601.
Appeal by defendant from judgments entered 30 March 2009 by Judge Kenneth F. Crow in Carteret County Superior Court. Heard in the Court of Appeals 15 March 2010.
Attorney General Roy Cooper, by Assistant Attorney General Shawn C. Troxler, for the State. John T. Hall for defendant appellant.
William Lewis Crooms ("defendant") appeals from judgments dated 30 March 2009 revoking his probation and activating his suspended sentences.
FACTS
Defendant argues the trial court abused its discretion and erred in finding defendant willfully and without valid excuse violated the conditions of his probation as alleged in the probation violation reports dated 8 January 2009. Defendant further argues the trial court erred in revoking defendant's probation because the court's findings of fact are not supported by the evidence introduced at the hearing. We disagree.
On 8 August 2007, defendant entered a guilty plea to two counts of possession with intent to sell or deliver cocaine and two counts of sale or delivery of cocaine. The trial court consolidated defendant's convictions into two judgments and sentenced defendant to two suspended terms of sixteen-to-eighteen months' imprisonment. The court placed defendant on supervised probation for thirty-six months and ordered defendant to pay court costs, restitution, and attorney's fees totaling $2,490.50.
On 17 March 2008, Officer C. Brian Jones filed probation violation reports alleging defendant had violated the terms of his probation. The trial court held a hearing on the probation violation reports on 7 April 2008, and entered orders modifying defendant's probation. The court ordered, inter alia, that defendant pay off his arrearage of monetary payments due within 120 days, submit to intensive probation supervision for nine months, participate in Drug Treatment Court, and if not accepted into Drug Treatment Court, that he be assigned to a ninety-day DART program. On 8 April 2008, upon defendant's motion, the trial court modified defendant's probation concerning his indebtedness and ordered defendant's arrearage be paid out over the remainder of defendant's probation.
Officer Jones filed additional probation violation reports on 8 January 2009, alleging defendant had violated the terms of his probation by testing positive for cocaine on 8 January 2009 and by failing to pay the ordered court indebtedness. The trial court held a hearing on the probation violation reports on 30 March 2009, wherein defendant admitted to the probation violations. At the conclusion of the hearing, the trial court found defendant willfully violated his probation and activated his sentences, ordering the sentences run consecutively. Defendant appeals.
JURISDICTION
We first note that defendant did not give oral notice of appeal at the conclusion of the probation revocation hearing, nor does the record before this Court contain a written notice of appeal filed within fourteen days of entry of the judgment at issue. Defendant filed his pro se notice of appeal on 15 April 2009, sixteen days after the trial court's entry of its judgments revoking defendant's probation on 30 March 2009. Accordingly, we must dismiss defendant's appeal because defendant has not given proper notice of appeal and "this Court is without jurisdiction to hear the appeal." State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 321 (2005); see also N.C.R. App. P. 4(a) (providing that a defendant may appeal from a judgment or order entered in a criminal matter by giving oral notice of appeal at trial or filing written notice of appeal within fourteen days after entry of the judgment or order). However, in the interests of justice and to expedite decision in the public interest, we elect to treat defendant's brief as a petition for writ of certiorari, which we allow, and reach the merits of defendant's arguments.
DISCUSSION
To revoke a defendant's probation, the trial court need only find 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). "Additionally, once the State has presented competent evidence establishing a defendant's failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms." State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002). "If the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation." Id. at 438, 562 S.E.2d at 540. "It is sufficient grounds to revoke the probation if only one condition is broken." State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53, 55 (1982). Further, this Court has held that although a trial court
could have been more explicit in the findings by stating that [it] had considered and evaluated defendant's evidence . . . and found it insufficient to justify breach of the probation condition, we hold that [the trial court's] failure to do so does not constitute an abuse of discretion. It would not be reasonable to require that a [trial court] make specific findings of fact on each of defendant's allegations tending to justify his breach of conditions.
State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983).
Here, the probation violation reports at issue alleged defendant violated:
1. Special Condition of Probation "Not use, possess or control any illegal drug or controlled substance unless it has been prescribed for the defendant by a licensed physician and is in the original container with the prescription number affixed on it . . ." in that [defendant] TESTED POSITIVE FOR COCAINE ON 1-8-09.
2. Monetary Condition of Probation "The defendant shall pay to the Clerk of Superior Court the "Total Amount Due" as directed by the Court or probation officer" in that [defendant] FAILED TO PAY COURT INDEBTNESS [sic] ORDERED, BEING 430.00 IN ARREARS THROUGH 1-09.
At the hearing on the probation violation reports defendant admitted to the alleged violations. Defendant also offered evidence that he had competed 109 hours in a "life structure program" without violation, had completed a ten-week behavioral program, had completed nine months of intensive probation, and had monthly expenses of at least $475.00 and income of $524.00 per month from Social Security Disability and occasional jobs. The trial court found defendant's probation violations to be willful and revoked defendant's probation.
Contrary to defendant's arguments on appeal, none of defendant's evidence goes to show that he did not willfully violate the term of his probation requiring that he not use, possess or control any illegal drug or controlled substance unless it has been prescribed to him by a licensed physician. Defendant's admission to violating the terms of his probation is admissible evidence which supports the trial court's findings, and defendant has not shown the trial court abused its discretion in revoking defendant's probation and activating his sentence. Accordingly, we affirm the judgments revoking defendant's probation and activating the suspended sentences.
Affirmed.
Judges McGEE and GEER concur.
Report per Rule 30(e).