Opinion
No. COA10-1347
Filed 7 June 2011 This case not for publication
On writ of certiorari to review judgment entered 28 June 2010 by Judge Franklin F. Lanier in Lee County Superior Court. Heard in the Court of Appeals 23 May 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State. Marie H. Mobley, for defendant-appellant.
Lee County No. 07 CRS 53539.
Jasmine Danielle Griffin ("defendant") filed a petition for writ of certiorari seeking review of the trial court's order revoking her probation and activating her suspended sentence. We grant defendant's writ of certiorari and affirm the trial court's order.
On 11 September 2008, defendant was convicted of assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant to a minimum term of 25 months to a maximum term of 39 months in the custody of the North Carolina Department of Correction, the sentence was suspended, and defendant was placed on supervised probation for 36 months. On 23 March 2009, the trial court modified defendant's probation after a violation report was filed. Four additional violation reports were subsequently filed. After failing to appear on 8 February 2010, defendant appeared on 28 June 2010, with retained counsel, for a probation violation hearing. Defendant admitted she willfully violated her probation. The trial court revoked defendant's probation and activated her suspended sentence.
Defendant did not give notice of appeal in open court. However, on or about 15 July 2010, defendant wrote a letter to the Lee County Clerk of Superior Court indicating she wanted to appeal her case. The trial court signed appellate entries on 19 July 2010. Recognizing that her notice of appeal was untimely, on 18 January 2011, defendant filed a petition for writ of certiorari seeking review of the trial court's order activating her suspended sentence. We allow defendant's petition for writ of certiorari to review the judgment revoking her probation.
Defendant argues that the trial court erred by revoking her probation: (1) without being given sufficient notice of the allegations against her; (2) without a hearing conducted when she did not waive a hearing; and (3) without evidence of convictions for new pending charges or without information that the underlying conduct was true. We find defendant's arguments without merit.
Before revoking or extending probation, the court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings. The State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged. The notice, unless waived by the probationer, must be given at least 24 hours before the hearing. At the hearing, evidence against the probationer must be disclosed to him, and the probationer may appear and speak in his own behalf, may present relevant information, and may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation. The probationer is entitled to be represented by counsel at the hearing and, if indigent, to have counsel appointed. Formal rules of evidence do not apply at the hearing, but the record or recollection of evidence or testimony introduced at the preliminary hearing on probation violation are inadmissible as evidence at the revocation hearing. When the violation alleged is the nonpayment of fine or costs, the issues and procedures at the hearing include those specified in G.S. 15A-1364 for response to nonpayment of fine.
N.C. Gen. Stat. § 15A-1345(e)(2009). "Probation is an act of grace by the State to one convicted of a crime." State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725 (1980). "All that is required in revoking a suspended sentence is evidence which reasonably satisfies the judge in the use of his sound discretion that a condition of probation has been willfully violated." State v. Monroe, 83 N.C. App. 143, 145, 349 S.E.2d 315, 317 (1986) (citing State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). When a defendant stipulates to a probation violation, and fails to present evidence regarding her inability to comply with the terms of her probation, the trial court's order revoking the defendant's probation and activating her suspended sentence must be affirmed. State v. Crouch, 74 N.C. App. 565, 328 S.E.2d 833 (1985).
This Court has held that the trial court's decision to revoke a defendant's probation will not be reversed absent a manifest 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).
In the instant case, defendant's probation officer, Officer Crystal Gillis ("Officer Gillis"), filed four probation violation reports: 16 July 2009, 2 December 2009, 3 February 2010, and 18 February 2010. Defendant's case was heard before the 28 June 2010 Criminal Session of Lee County Superior Court. Each probation violation report was filed more than twenty-four hours before defendant's case was heard. Therefore, defendant received the notice required by N.C. Gen. Stat. § 15A-1345(e)(2009).
Furthermore, defendant appeared with counsel at the 28 June 2010 probation revocation hearing and did not object to the lack of notice. See State v. Langley, 3 N.C. App. 189, 191, 164 S.E.2d 529, 530 (1968) (finding waiver of notice "[w]hen a defendant voluntarily appears at the appointed time and place and participates in the hearing"). Therefore, even assuming, arguendo, that defendant did not receive adequate notice, she waived her objection to the lack of notice by appearing at the probation revocation hearing and participating in the hearing with the assistance of counsel.
At the start of the probation revocation hearing, the following exchange occurred:
[THE STATE]:. . . . Mr. Reives, has your client been served a copy of the violation report?
[DEFENDANT'S COUNSEL]: She has, Your Honor. She admits the viola — waives formal reading, admits the violations, she admits the willfulness of the violations, and I'll just be heard at the appropriate time.
This exchange evidences that defendant waived notice and a formal hearing. In addition, she admitted that she willfully violated her probation. When defendant admitted the willfulness of her violations, her admission was evidence which reasonably satisfied the trial court that a condition of defendant's probation was willfully violated. Therefore, the trial court properly exercised its discretion by revoking defendant's probation and activating her suspended sentence. The trial court's order is affirmed.
Affirmed.
Judges STEELMAN and STROUD concur.
Report per Rule 30(e).