Opinion
No. COA02-1170
Filed 1 July 2003 This case not for publication
Appeal by defendant from judgments entered 28 May 2002 by Judge Richard L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 30 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State. Joal H. Broun for defendant-appellant.
Guilford County Nos. 02 CRS 23046-48.
Sarah Faye Legrand ("defendant") appeals from three judgments revoking her probation. We affirm.
I. Background
On 26 November 2001, defendant pled guilty to three counts of forgery of an instrument. The trial court suspended three consecutive terms of six to eight months' imprisonment and placed defendant on supervised probation for twenty-four months.
In reports sworn before a deputy clerk and filed in superior court on 27 February 2002, defendant's probation officer charged her with the following violations: (1) failure to perform any of the fifty hours of community service which were to be completed within the first fifty days of her probation; (2) failure to submit to six months of electronic house arrest; (3) failure to pay any of her court costs, fines and attorney's fees; and (4) leaving her place of residence in High Point without notifying the officer of her whereabouts.
The trial court heard these violations on 3 May 2002. At the beginning of the hearing, the prosecutor read the charges contained in the violation reports. Defendant admitted each of the charged violations and her willfulness thereto. The prosecutor advised the judge that the probation officer was not in court but that the State was seeking to revoke defendant's probation. The court then addressed defense counsel as follows:
THE COURT: And [defendant] admits all these violations, she's got all three of them, and she has admitted the willfulness of each of the three; is that correct?
[COUNSEL]: That's correct, your Honor. We'd just like to be heard, of course.
Counsel confirmed that he had also spoken with defendant's probation officer, who had notified the defense of his intention to seek revocation. Counsel asked the court to place defendant in intensive probation, explaining that she had fled her residence to get away from an abusive spouse, had sustained a death in the family in Richmond County, and was planning to sell some property to satisfy the monetary conditions of her probation. Defendant addressed the court, acknowledging her "mistake" and claiming she had not understood the law surrounding probation. She claimed she had already apologized to her probation officer and asked the court"to put me on probation just to teach me, because I don't know you[r] law here." Upon inquiry from the bench, defendant stated that she was from Richmond County, North Carolina.
Noting that defendant had "not done anything that she was asked to do[,]" the trial court found defendant had violated the terms of her probation willfully and without lawful excuse. The court revoked her probation and activated her suspended sentences.
II. Issues
On appeal, defendant claims: (1) that the trial court violated her right to due process by revoking her probation solely upon the violation reports, (2) that her probation officer's absence from the hearing violated her constitutional right to confrontation, (3) that her trial counsel was ineffective in failing to object to the probation officer's absence, and (4) that the trial court failed to properly exercise its discretion by revoking probation without considering her circumstances or the possible alternatives to revocation.
III. Abuse of Discretion
Defendant argues that the bare violation reports are insufficient to support a reasoned exercise of judicial discretion. "'[P]robation is an act of grace by the State to one convicted of a crime.'" State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999) (quoting State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. rev. denied, 301 N.C. 99, 273 S.E.2d 304 (1980)). A revocation hearing is an informal proceeding at which the normal rules of evidence do not apply. See State v. Terry, 149N.C. App. 434, 437, 562 S.E.2d 537, 540 (2002). "All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended." State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). The decision to revoke probation upon a finding of a willful violation will not be disturbed absent a manifest abuse of the court's discretion. See State v. Robinson, 248 N.C. 282, 285-86, 103 S.E.2d 376, 379 (1958).
To the extent defendant contests the evidentiary basis for revocation, her appeal is without merit. We have previously held that "the sworn probation violation report constitute[s] competent evidence sufficient to support the order revoking [her] probation." State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981) (citing State v. Duncan, 270 N.C. 241, 246-47, 154 S.E.2d 53, 58 (1967)). Although defendant complains that she was not afforded the right to confront her probation officer, she did not invoke her right to cross-examination in the trial court. See Duncan, 270 N.C. at 246-47, 154 S.E.2d at 58; see also N.C.R. App. P. 10(b)(1) (limiting appeal to those issues presented to the trial court). The lack of opportunity to cross examine the probation officer was harmless beyond a reasonable doubt because defendant admitted to willfully violating the terms of probation as charged in the reports. See Terry, 149 N.C. App. at 438, 562 S.E.2d at 540 (citing Delaware v. Van Arsdall, 475 U.S. 673, 682, 89 L.Ed.2d674, 685 (1986)).
IV. Effective Assistance of Counsel
Defendant also claims that his counsel was constitutionally ineffective in failing to demand an opportunity for cross-examination. To sustain such a claim, defendant must show both that his counsel's performance was unreasonably deficient and that this deficiency had a probable impact on the outcome in the trial court. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L.Ed.2d 674, 693 (1984); State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). Defendant admitted to willfully violating the terms of her probation as charged in the sworn reports. Defendant fails to show how a cross-examination of her probation officer might have revealed circumstances mitigating her nonfeasance or otherwise might have led to a more favorable outcome at the hearing. Absent any showing of prejudice, her assignment of error is overruled. We need not separately assess the reasonableness of counsel's performance. See State v. Rogers, 355 N.C. 420, 449-50, 562 S.E.2d 859, 878 (2002).
V. Revocation
In her remaining argument, defendant avers the trial court abused its discretion in revoking her probation. We disagree. Defendant acknowledged the willfulness of her several violations. The court had before it competent evidence sufficient to support revocation. It also heard from defendant and her counsel before reaching its decision. See Duncan, 270 N.C. at 247, 154 S.E.2d at 58. The court was under no duty to consider alternatives to incarceration. See State v. Jones, 78 N.C. App. 507, 510, 337 S.E.2d 195, 198 (1985). This assignment of error is overruled.
VI. Conclusion
The judgments revoking defendant's probation and activating her sentence are affirmed. Defendant is entitled to a credit for any days she was incarcerated in connection with these charges and prior to and after the hearing and judgments appealed from.
Affirmed
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).