Opinion
No. 07-902.
Filed February 5, 2008.
Durham County, No. 05 CRS 51998.
Appeal by defendant from judgment entered on or about 10 April 2007 by Judge Ripley E. Rand in Superior Court, Durham County. Heard in the Court of Appeals 14 January 2008.
Attorney General Roy A. Cooper III, by Assistant Attorney General Nancy R. Dunn, for the State. Peter Wood, for defendant-appellant.
On or about 24 May 2006, defendant pled guilty to two counts of violating a domestic violence protective order and was sentenced to a term of 150 days imprisonment. The trial court suspended defendant's sentence and placed him on supervised probation for eighteen months.
On 15 March 2007, a probation violation report was filed alleging that defendant had: (1) failed to report as scheduled on 1 February 2007 to his probation officer, (2) was in arrears on his monetary obligation, (3) failed to pay probation supervision fees, and (4) had pending charges of assault on a female, breaking and entering, and larceny after breaking and entering. The trial court held a probation violation hearing in Superior Court, Durham County on 10 April 2007. Defendant denied the allegations. The trial court heard from defendant's probation officer and the defendant regarding the alleged violations. The trial court then found that defendant willfully violated the terms of his probation as to the first three alleged violations, but not the fourth. Accordingly, the trial court revoked defendant's probation and activated his suspended sentence. Defendant appeals.
Defendant argues: (1) Defendant was never properly notified of the terms of his probation because the original judgment was "vague and incomplete." Specifically, defendant asserts that the judgment does not specify any schedule of payment for his monetary obligation because the court failed to check the box on the judgment for him to pay either "pursuant to a schedule determined by the probation officer" or "pursuant to a schedule [as] set out by the court[.]" Defendant also claims that the judgment does not specify when and how often he was to meet with his probation officer. Defendant argues that because the terms of his probation were never expressly stated, the conditions of probation may not serve as the basis for a subsequent violation. (2) Defendant further argues that the trial court committed plain and prejudicial error and abused its discretion by revoking his probation because there was insufficient evidence that he willfully violated the terms of his probation. After careful review of the record, briefs, and contentions of the parties, we affirm.
We review a trial court's decision to revoke a defendant's probation under an abuse of discretion standard. State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (citation omitted). "Defendants may not raise an initial objection to a condition of probation . . . on appeal, but must first object no later than the revocation hearing." State v. Tozzi, 84 N.C. App. 517, 520, 353 S.E.2d 250, 252 (1987) (citing State v. Cooper, 304 N.C. 180, 183, 282 S.E.2d 436, 439 (1981).
We note that "[t]his Court has held that plain error analysis applies only to jury instructions and evidentiary matters[,]" State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002); cert. denied, 537 U.S. 1117, 154 L.Ed. 2d 795 (2003), and thus we will only consider this standard of review on appeal.
As to defendant's first argument we initially note that there is no indication in the record that defendant claimed at the revocation hearing that the terms of his probation were vague or unclear. Thus, defendant waived any issue concerning the terms of his probation because he did not raise any objection at the revocation hearing. See Tozzi at 520, 353 S.E.2d at 252., Furthermore, even assuming arguendo that defendant preserved this argument for appellate review, we conclude that the terms of defendant's probation were sufficiently clear. In fact, defendant's own testimony clearly indicated that he was fully aware of the requirements of his probation both as to meeting with his probation officer and as to his required payments. In addition, there was sufficient evidence to support the trial court's conclusion that he violated his probation. This assignment of error is overruled. Pursuant to defendant's second argument 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. The burden is on defendant to present competent evidence of his inability to comply with the conditions of probation; and that otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was wilful or without lawful excuse.
Tozzi at 521, 353 S.E.2d at 253 (internal citations omitted).
In the case sub judice, the judgment form, under the section entitled "Regular Conditions of Probation — G.S. 15A-1343(b)[,]" provided that defendant "shall . . . [r]eport as directed by the Court or the probation officer to the officer at reasonable times and places and in a reasonable manner[.]" (emphasis added). Defendant's probation officer, Shunika Hemingway, met with defendant on 9 June 2006 and explained to him the terms of his probation, including the requirement that he report to her "as directed." Defendant indicated that he understood his obligations.
Defendant failed to report for supervision on several occasions, often calling to reschedule with excuses why he could not report. The State alleged in the violation report that defendant failed to report to a scheduled appointment on 1 February 2007. Defendant indicated that he did not report that day because it snowed. Defendant's probation officer testified in detail regarding numerous appointments defendant missed and others he rescheduled for various reasons, but she did not recall snow as a reason for his absence on 1 February 2007. Upon the evidence presented, the trial court apparently concluded that defendant's testimony did not satisfy his burden of showing "present competent evidence of his inability to comply with the conditions of probation." See Tozzi at 521, 353 S.E.2d at 253; see also State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983) (stating that the trial judge, sitting as the finder of fact, may reject any or all of a defendant's evidence as untrue). Accordingly, we conclude there was sufficient evidence to support the trial court's finding that defendant willfully violated his probation and the trial court did not abuse its discretion by its revocation of defendant's probation.
We find no error with the trial court and the judgment of the trial court is affirmed.
Affirmed.
Judges McGEE and ARROWOOD concur.
Report per Rule 30(e).