Opinion
No. COA11–1214.
2012-05-1
STATE of North Carolina v. Romaro D. KENNEDY, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Ellen A. Newby, for the State. Kevin P. Bradley for defendant-appellant.
Appeal by defendant from judgments entered 5 April 2011 by Judge William R. Pittman in Superior Court, Moore County. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General Ellen A. Newby, for the State. Kevin P. Bradley for defendant-appellant.
STROUD, Judge.
Romaro D. Kennedy (“defendant”) appeals from the judgments revoking his probation. Defendant contends that he received ineffective assistance from trial counsel. For the following reasons, we affirm the trial court's judgments.
On 16 April 2009, defendant pled guilty to one count of the sale of cocaine and two counts of possession with intent to sell or deliver (“PWISD”) cocaine. The terms of defendant's plea agreement provided that he was to be sentenced to two consecutive prison terms, and that those terms would be suspended and defendant would be placed on probation. Judge William Z. Wood, Jr., imposed a term of 15 to 18 months imprisonment for the sale conviction and consolidated the other two convictions for PWISD cocaine into one judgment imposing a term of 8 to 10 months imprisonment. The sentences were suspended and defendant was placed on 36 months of probation. On 28 October 2009, defendant's probation officer filed violation reports. On 20 November 2009, Judge R. Stuart Albright found that defendant had violated his probation, but stayed execution of the judgments revoking probation.
On 11 February 2011, the probation officer filed two more violation reports, alleging that defendant had tested positive for cocaine; failed to report to scheduled probation appointments; and failed to attend a substance abuse program. At the revocation hearing, defendant admitted to testing positive for cocaine and failing to attend a substance abuse program, but denied willfulness as to the other alleged violation. Defendant also testified that he had tested positive for cocaine. On 4 April 2011, the trial court found defendant had willfully violated the terms of his probation and imposed judgments activating the suspended sentences. Defendant appealed.
On appeal, defendant argues that his trial attorney provided ineffective assistance of counsel by failing to advise the trial court that the conditions of defendant's probation did not require him to report to a substance abuse program, the third alleged violation of probation. We disagree.
To prove a claim of ineffective assistance of counsel, a defendant must make two showings:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984)) (emphasis in original). Further, “if a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
Because “probation is an act of grace by the State to one convicted of a crime[,] ... an alleged violation of a probationary condition need not be proven beyond a reasonable doubt.” State v. Hill, 132 N.C.App. 209, 211, 510 S.E.2d 413, 414 (1999) (citation and quotation marks omitted). “All that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation.” State v. White, 129 N.C.App. 52, 58, 496 S.E.2d 842, 846 (1998), aff'd in part, disc. review improvidently allowed in part, 350 N.C. 302, 512 S.E.2d 424 (1999). “Any violation of a valid condition of probation is sufficient to revoke [a] defendant's probation.” State v. Tozzi, 84 N.C.App. 517, 521, 353 S.E.2d 250, 253 (1987) (citation omitted).
Here, defendant cannot make the required showing that trial counsel's purported ineffective assistance affected the outcome of the probation revocation hearing. Setting aside the merits of defendant's contention that substance abuse treatment was not a condition of his probation, defendant admitted to the separate allegation that he violated probation by testing positive for cocaine. Defendant's own testimony supported the admission. Defendant's admission to a willful violation of any one of the conditions of his probation was sufficient to support the trial court's judgments revoking probation. See id. Accordingly, we decline to find that defendant was prejudiced by the alleged ineffective assistance of counsel, see Braswell, 312 N.C. at 563, 324 S.E.2d at 249, and we affirm the trial court's judgments revoking defendant's probation.
AFFIRMED. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).