Opinion
No. COA12–143.
2012-07-3
STATE of North Carolina v. Lester E. EDWARDS.
Attorney General Roy Cooper, by Associate Attorney General Adrian Dellinger, for the State. William D. Spence, for defendant-appellant.
Appeal by defendant from judgments entered 14 March 2011 by Judge Jack W. Jenkins in Carteret County Superior Court. Heard in the Court of Appeals 18 June 2012. Attorney General Roy Cooper, by Associate Attorney General Adrian Dellinger, for the State. William D. Spence, for defendant-appellant.
ELMORE, Judge.
Lester E. Edwards (defendant) appeals from judgments entered 14 March 2011 that revoked his probation and activated his sentences for six convictions of obtaining property by false pretenses. At the time of defendant's six convictions the trial court sentenced defendant to a minimum term of 16 months and a maximum term of 20 months in the custody of the North Carolina Department of Public Safety for each charge, with the sentences to be served consecutively. The trial court suspended the active sentences and placed defendant on special probation, which included an active term of 4 months for each charge to be served consecutively and supervised probation for 60 months. Defendant filed timely written notice of appeal from entry of the judgments against him. Defendant's pro se notice of appeal is technically deficient, in that it fails to specifically state the judgments from which he appeals, but in our discretion we allow his petition for writ of certiorari and review the merits of his appeal.
Defendant argues that the trial court abused its discretion in revoking his probation and activating his sentences. Defendant also argues that the trial court failed to properly evaluate his evidence at the probation revocation hearing and failed to find as a fact that he did not have a lawful excuse for his probation violations. Defendant further contends that, to the extent the judgments state that the trial court found he committed the probation violations willfully and without lawful excuse, this finding is a mistake or a clerical error and is not supported by the evidence presented at the hearing. We disagree.
This Court reviews a trial court's decision to revoke a defendant's probation for an abuse of discretion. State v. Tennant, 141 N.C.App. 524, 526, 540 S.E.2d 807, 808 (2000). An abuse of discretion occurs only “where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005). 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.
Here defendant's probation officer filed probation violation reports alleging that defendant: (1) had failed to report for five office visits and failed to be home for a home visit; (2) was in arrears in his payments ordered by the trial court; and (3) had absconded. Because a trial court need only find one of the alleged violations to revoke a defendant's probation, State v. Seay, 59 N.C.App. 667, 670–71, 298 S.E.2d 53, 55 (1982), we focus our review on the alleged violation of absconding.
Defendant's probation officer testified at the hearing that defendant had missed five office appointments with her, from January through June 2010, and that the last time she had seen defendant was at a home visit on 18 May 2010. Defendant was last supposed to meet with his probation officer at her office on 25 and 28 June 2010, but he did not attend either of those appointments and did not call or otherwise contact his probation officer. The probation officer testified that she called defendant to reset the appointments, but he was never at home and did not respond to her messages. The probation officer further stated that, because of the length of time that had gone by since her last contact with defendant, she believed that he was “just avoiding supervision” and that she had to take out warrants for defendant's arrest for absconding and file the probation violation reports on 9 July 2010. Based on this evidence, the court concluded that defendant had willfully and without lawful excuse violated the terms and conditions of his probation by willfully absconding. Defendant did present evidence that his violations were not willful or without valid excuse because his medical conditions kept him from attending the appointments with his probation officer. However, defendant presented no evidence as to why he failed to maintain any form of contact with his probation officer from May through July 2010. We therefore hold that the State presented competent evidence establishing defendant's probation violation through absconding, that defendant failed to demonstrate a lawful excuse for this violation, and thus that the trial court properly found that defendant had willfully and without lawful excuse violated the terms of his probation.
We further disagree with defendant's argument that the trial court abused its discretion in revoking his probation because this is not a case where he ignored the conditions and terms of his probation. While defendant may have had medical problems which affected his ability to fully comply with the terms and conditions of his probation, it is clear that defendant chose to ignore at least some of those terms and conditions. Defendant began missing his appointments with his probation officer in January 2010, gave his probation officer no explanation for missing the appointments, and then without excuse ceased all contact with his probation officer in May 2010. Accordingly, we hold that the trial court did not abuse its discretion in revoking defendant's probation and activating his sentences.
Affirmed. Judges HUNTER, ROBERT C., and McCULLOUGH concur.
Report per Rule 30(e).