Opinion
No. COA11–1175.
2012-05-1
STATE of North Carolina v. Mondrel Devone HOLMES, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Kathryn J. Thomas and Associate Attorney General Kathryn H. Shields, for the State. Richard E. Jester for defendant-appellant.
Appeal by defendant from judgments entered 6 April 2011 by Judge Craig Croom in Superior Court, Johnston County. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General Kathryn J. Thomas and Associate Attorney General Kathryn H. Shields, for the State. Richard E. Jester for defendant-appellant.
STROUD, Judge.
Mondrel Devone Holmes (“defendant”) appeals from judgments revoking his probation. After careful review, we affirm in part, and remand for correction of a clerical error in part.
On 7 December 2009, defendant pled guilty pursuant to a plea agreement to second-degree burglary, common law robbery, and five counts of breaking and/or entering. The plea agreement provided that defendant would be sentenced to consecutive terms of 16 to 20, 16 to 20, and 8 to 10 months imprisonment. Additionally, defendant's sentences were to be suspended and defendant placed on intensive probation. The trial court sentenced defendant in accordance with the plea agreement and placed him on intensive supervised probation for 36 months.
On 13 January 2011, a probation violation report was filed alleging that defendant had failed to comply with the terms of his probation. Specifically, the report alleged:
The defendant is homeless and on electronic house arrest for his own safety he is to be taken into custody with the temperature below freezing and his attempt to sleep outside his residence.... He was made to leave his residence by his Aunt on 1–10–11 at around 6:30PM.
The next day, on 14 January 2011, a second violation report was filed. This time the probation officer claimed that defendant had absconded. Specifically, the report alleged that defendant had “left his place of residence on or about 1–10–11, and failed to make his whereabouts known while on electronic house arrest.” Defendant was arrested on 23 January 2011.
On 4 April 2011, a probation violation hearing was held in Superior Court, Johnston County. Defendant denied violating his probation. The trial court found that the first violation report filed on 13 January 2011 failed to allege a violation. As to the 14 January 2011 violation report, however, the trial court found that defendant had willfully violated a condition of his probation and revoked his probation. Accordingly, the trial court activated defendant's suspended sentences for second-degree burglary and common law robbery. Defendant appeals.
Defendant first argues that the trial court erred by concluding that he had violated his probation.
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) (citations and quotation marks omitted). This Court has stated that
[a] hearing to revoke a defendant's probationary sentence only requires that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion 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. The judge's finding of such a violation, if supported by competent evidence, will not be overturned absent a showing of manifest abuse of discretion.
State v. Young, 190 N.C.App. 458, 459, 660 S.E.2d 574, 576 (2008) (citations and quotation marks omitted).
Here, Daniel Bowen, who was defendant's probation officer, testified that defendant was on house arrest but had been thrown out of his residence by his aunt “because he couldn't control his temper and his mouth.” Defendant called Bowen and told him he was staying on the front porch. Bowen went to the aunt's residence, and found part of defendant's monitoring equipment on the porch. Defendant, however, was gone. Later, defendant called Bowen and told him he left when he saw Bowen arriving with police officers. Bowen finally located defendant a week after he left his aunt's home.
Defendant argues that he did not violate his probation because he was not actively avoiding supervision. Defendant contends that he remained in regular contact with Bowen, Bowen was aware he was looking for a new place to live, and that Bowen was giving him time to “get myself straight.” We are not persuaded. While defendant did remain in contact with Bowen, Bowen testified that defendant would not provide him with his location. Defendant also admitted at the hearing that he left his aunt's house when he saw Bowen with police, because he thought Bowen was “trying to set me up.”
The defendant has the burden of showing excuse or lack of willfulness and if the defendant fails to carry this burden, evidence of failure to comply is sufficient to support 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). The trial court apparently concluded that defendant's testimony did not satisfy this burden. See State v. Williamson, 61 N.C.App. 531, 535, 301 S.E.2d 423, 426 (1983) (the trial judge, sitting as the finder of fact, may reject any or all of a defendant's evidence as untrue). Accordingly, we conclude it was within the trial court's discretion to revoke defendant's probation.
Defendant next argues that the matter must be remanded for correction of clerical errors in the judgments entered upon revocation of his probation. We agree. Defendant was originally charged with first-degree burglary and robbery with a dangerous weapon, but pled guilty to the lesser offenses of second-degree burglary and common law larceny. The judgments entered upon revocation of defendant's probation incorrectly stated the offenses as first-degree burglary and robbery with a dangerous weapon. Accordingly, the judgments entered upon revocation of defendant's probation must be remanded for correction to reflect the offenses to which defendant originally pled guilty.
AFFIRMED IN PART; REMANDED FOR CORRECTION OF CLERICAL ERROR. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).