Opinion
No. COA10-154
Filed 7 September 2010 This case not for publication
Appeal by defendant from judgment entered 21 September 2009 by Judge Benjamin Alford in Craven County Superior Court. Heard in the Court of Appeals 24 August 2010.
Attorney General Roy Cooper, by Assistant Attorney General Kathryn J. Cooper, for the State.
James W. Carter, for defendant-appellant.
Craven County No. 08 CRS 53782.
Defendant, Takeeia Nicole Hawkins, appeals from a judgment revoking her probation and activating her suspended sentence. After careful review, we affirm.
On 26 February 2009, defendant pled guilty to one count of attempted trafficking in cocaine. The trial judge sentenced defendant to a term of 15 to 18 months imprisonment. The trial court suspended defendant's sentence and placed her on supervised probation for 36 months.
On 28 July 2009, a probation violation report was filed alleging that defendant: (1) was in arrears on the monetary conditions of her probation; (2) changed her residence without requesting permission or notifying her probation officer; and (3) violated curfew on eight dates between 24 April 2009 and 17 July 2009.
On 21 September 2009, a probation violation hearing was held in Craven County Superior Court. Defendant admitted to violating the monetary conditions of her probation and to changing residences without notifying her probation officer or asking permission. Defendant denied, however, that the violations were willful or without lawful excuse. Defendant neither admitted nor denied violating her curfew. The trial court found that defendant willfully violated the terms of her probation. Accordingly, the trial court revoked defendant's probation and activated her suspended sentence. Defendant timely appealed to this Court.
We first consider defendant's arguments that the State presented insufficient evidence to support findings that she violated the conditions of her probation or that any violation was willful or without lawful excuse. This Court has stated that:
Any violation of a valid condition of probation is sufficient to revoke defendant's probation. All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse.
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (internal citations omitted).
In the instant case, the State alleged in the probation violation report that defendant violated her curfew on eight occasions. This Court has stated that a "sworn probation violation report constitute[s] competent evidence sufficient to support the order revoking [a defendant's] probation." State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981). Thus, the State met its burden of presenting competent evidence of the probation violation.
Once the State presented evidence that defendant had violated her probation, the burden shifted to defendant to show a lawful excuse for her failure to comply or a lack of willfulness. Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. A court may not revoke probation because of circumstances beyond the defendant's control. State v. Hill, 132 N.C. App. 209, 212, 510 S.E.2d 413, 415 (1999). However, if the defendant fails to carry his burden, evidence of failure to comply may justify a finding that the violation was willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985) (citing State v. Young, 21 N.C. App. 316, 204 S.E.2d 185 (1974)).
In the instant case, defendant provided testimony and her counsel provided statements that tended to admit that the curfews were violated, but provided minimal explanation for the violations. During the course of the hearing, defendant's counsel admitted to some curfew violations, saying, "she's had a lot of battles she had to fight. That's why she missed some of these curfews." Additionally, defendant admitted during cross examination that "these violations of curfew were times that [she was not] at the other two places that [she] lived after [she] got out of prison." Having "battles . . . to fight" does not specifically demonstrate a lack of willfulness or lawful excuse for missing curfew sufficient to meet the defendant's burden of proof.
Defendant additionally argues that the trial court erred by revoking her probation when there was substantial evidence to support continuing or modifying the probation. We disagree.
It is well settled that "`probation or suspension of sentence is an act of grace' and not a right." State v. Alston, 139 N.C. App. 787, 794, 534 S.E.2d 666, 670 (2000) (quoting State v. Baines, 40 N.C. App. 545, 550, 253 S.E.2d 300, 303 (1979)). Upon finding a defendant to be in willful violation of the conditions of probation, a judge has the discretionary authority to terminate, modify, extend, or revoke that probation. N.C. Gen. Stat. § 15A-1344(a) (2009). Defendant relies on the proposition that when a defendant presents "competent evidence of his inability to comply . . . he is entitled to have that evidence considered and evaluated before the trial court can properly order revocation." Crouch, 74 N.C. App. at 567, 328 S.E.2d at 834. To rely on this proposition, defendant must first present competent evidence of her inability to comply with the probation requirements. As previously noted, defendant did not explain specifically why she violated her curfew on eight occasions. Moreover, defendant only offered the vague excuse that she had "battles . . . to fight" through the statements of defense counsel. See Crouch, 74 N.C. App. at 567, 328 S.E.2d at 835 (holding that the defense counsel's statements relating to his client's inability to comply with the terms of probation were not competent evidence). Thus, with respect to curfew, there appears to be no competent evidence to consider or evaluate.
Even assuming, arguendo, that defendant had met her burden with respect to curfew violations, we find that the trial court appropriately considered and evaluated defendant's testimonial evidence. This Court previously found that when a trial court makes findings of fact "from the evidence presented," there is a sufficient showing "that the trial court considered and evaluated defendant's evidence." State v. Jones, 78 N.C. App. 507, 510, 337 S.E.2d 195, 197 (1985). In the instant case, the trial judge published and signed his findings on a standard form stating, "[a]fter considering the record contained in the files numbered above, together with the evidence presented by the parties[,]" defendant violated the conditions of her probation "as set forth" in the Violation Report and that "[e]ach violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence." Accordingly, we hold that defendant received her entitlement to the "consideration and evaluation" ensured by Crouch and Young. We therefore conclude that the trial court properly evaluated all of the evidence in revoking defendant's probation.
Because there were sufficient grounds to revoke defendant's probation on the basis of the curfew violations, consideration of defendant's remaining probation violations are unnecessary. See Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. We thus conclude it was within the Court's discretion to revoke defendant's probation. Accordingly, we affirm.
Affirmed.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).