Opinion
No. COA11–1576.
2012-08-21
STATE of North Carolina v. Olivia Alexandria HENSLEY.
Attorney General Roy Cooper, by Assistant Attorney General Donna D. Smith, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for the defendant-appellant.
Appeal by defendant from orders entered 2 September 2011 by Judge Alan Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 6 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Donna D. Smith, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Hannah Hall, for the defendant-appellant.
MARTIN, Chief Judge.
Defendant Olivia Alexandria Hensley appeals from the trial court's orders modifying her probation. Defendant contends the trial court made insufficient findings of fact in its modification orders and made no findings of fact in open court prior to extending the probation period. We affirm.
On 15 April 2010, defendant pled guilty to six counts of common-law robbery and was placed on thirty-six months of probation. The trial court's judgments entered upon her pleas imposed more than $21,000.00 in restitution and other costs and fees. Defendant was ordered to pay $710.00 per month as a condition of her probation. Defendant made one payment of $10.00 on 17 May 2010 and one payment of $20.00 on 3 June 2010. While on probation, defendant only worked a few weeks selling kitchen supplies. On 10 May 2011, defendant's probation officer filed a probation violation report alleging that defendant had failed to satisfy the monetary conditions of her probation. Defendant's last payment before the August 2011 probation violation hearing was a 6 July 2011 payment of $15.00.
At the violation hearing, defendant testified that she was not working because she could not find a job due to her felony conviction, and that she had applied for several jobs after becoming certified as a nursing assistant. Defendant otherwise complied with the other terms of her probation.
In its written orders modifying probation, the trial court found:
The defendant admitted or the [c] ourt is reasonably satisfied in the exercise of its discretion that the defendant has violated each of the conditions of probation ... [for] intermediate punishment set forth in ... paragraphs 1, 2 in the Violation Report on Notice of hearing dated 05/04/2011 [and that] [t] he defendant violated each condition willfully and without valid excuse; and each violation occurred at a time prior to the expiration or termination of the period of the defendant's probation.
As a result of the probation violation, the trial court extended defendant's probation by twenty-four months, imposed an active term of thirty days, and required defendant to provide a job search list. Defendant appeals.
On appeal, defendant contends the trial court made insufficient findings of fact to justify modifying her probation pursuant to N.C. Gen.Stat. §§ 15A–1345(e) and 15A–1364 (2011), and that the trial court erroneously made no findings of fact in open court prior to extending the probation period. We disagree.
When a probationer violates his or her probation, a court may reduce, terminate, continue, extend, modify, or revoke such probation. N.C. Gen.Stat. § 15A–1344(a) (2011). In order to revoke or extend probation, N.C. Gen.Stat. § 15A–1345(e) requires the court to hold a hearing, make findings to support the changes to the probation terms, and make a summary record of the proceedings. N.C. Gen.Stat. § 15A–1345(e).
A trial court's determination of whether a defendant violated the terms of his or her probation will not be disturbed on appeal if supported by competent evidence unless there is a manifest abuse of discretion. State v. Sherrod, 191 N.C.App. 776, 777–778, 663 S .E.2d 470, 472 (2008) (citation omitted). “[A] grant of probation is a privilege afforded by the court and not a right to which a felon is entitled. In view of this fact, the court is given considerable discretion in determining whether good cause exists for modifying the terms of probation.” State v. Coltrane, 58 N.C.App. 210, 212, 292 S.E.2d 736, 737 (1982), rev'd on other grounds, 307 N.C. 511, 299 S.E.2d 199 (1983).
This Court has held that findings primarily in the form of preprinted text are sufficient to comply with N.C. Gen.Stat. § 15A–1345(e). State v. Henderson, 179 N.C.App. 191, 197, 632 S.E.2d 818, 822 (2006). Furthermore, although trial courts are encouraged to explicitly state that they considered and evaluated the defendant's evidence and found it insufficient to justify a breach of the terms of probation, we have previously held that failure to do so is not an abuse of discretion. State v. Belcher, 173 N.C.App. 620, 625, 619 S.E.2d 567, 570 (2005) (citation omitted).
In this case, although the trial court did not explicitly announce its findings orally during the probation violation hearing, its findings and conclusions were noted in the Orders on Violation of Probation or on Motion to Modify dated 11 August 2011. The findings included in the preprinted documents signed by the trial court satisfy the requirements of N.C. Gen.Stat. § 15A–1345(e). See Henderson, 179 N.C.App. at 197, 632 S.E.2d at 822. Furthermore, the trial court allowed defendant to present evidence providing a justification for her violation of the conditions of her probation. After hearing and considering defendant's testimony regarding her lack of employment, the trial court exercised its discretion as permitted under N.C. Gen.Stat. § 15A–1344(d) and modified the conditions of defendant's probation. Therefore, the trial court's actions in this case do not constitute an abuse of discretion. Accordingly, we affirm the orders modifying defendant's probation.
Affirmed. Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).