Opinion
No. COA03-383
Filed 2 December 2003 This case not for publication
Appeal by defendant from judgment dated 15 January 2003 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 19 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General Sonya M. Allen, for the State. John T. Hall for defendant-appellant.
New Hanover County Nos. 02 CRS 51088-89.
Dedonnal McKoy (defendant) appeals from a judgment dated 15 January 2003 finding him in violation of his probation and activating his suspended sentence.
On 1 May 2002, defendant pled guilty to two counts of malicious conduct by a prisoner. The trial court consolidated the convictions for judgment and sentenced defendant to a term of imprisonment of 19 to 23 months. The trial court subsequently suspended the sentence and placed defendant on supervised probation for 36 months.
On 20 September 2002, defendant's probation officer filed a violation report alleging defendant had violated the terms of probation by: (1) failing to report to the probation officer as directed, (2) failing to satisfy the monetary condition of probation, (3) consuming an illegal drug or controlled substance, and (4) committing multiple criminal offenses. The violation report included in the record on appeal does not contain defendant's signature indicating that he received a copy of the violation report and there is an omission of the date of the hearing. Defendant however appeared for the hearing concerning the violation report. At the hearing, defendant signed a waiver of counsel and represented himself. Defendant admitted that he committed all of the violations alleged in the report.
The sole issue on appeal is whether the trial court committed plain error by accepting defendant's admissions to probation violations. Defendant argues the State failed to serve defendant with a copy of the violation report, and that without service of process, the trial court did not have jurisdiction. We disagree.
"It is not a requisite to the validity of the service of the notice [of probation violation] that the defendant sign it." State v. Langley, 3 N.C. App. 189, 191, 164 S.E.2d 529, 530 (1968). Furthermore, while it is the better practice for the notice to identify the date, time, and place of the session of court at which the probation revocation hearing will be held, "when a defendant voluntarily appears at the appointed time and place and participates in the hearing as the defendant did in this case, he is not prejudiced by the failure of the written notice to contain such information." Id. at 191, 164 S.E.2d at 530; see also Statev. Harris, 26 N.C. App. 254, 258, 215 S.E.2d 836, 839-40 (1975) (holding the trial court did not err in not arraigning the defendant before the probation revocation hearing because the defendant was represented by counsel and was present when the trial court announced he was charged with probation violations). Finally, the failure to serve the violation report is not error when the defendant signs a waiver of counsel indicating that he is informed of the charges pending against him. See State v. Gamble, 50 N.C. App. 658, 660, 274 S.E.2d 874, 876 (1981) (failure to serve the defendant with written notice of a revocation hearing was not error when the defendant was detained on a warrant charging him with violation of probation and when a waiver of counsel was signed by the defendant indicating he had been informed of the charges against him).
Here, defendant did appear for his probation revocation hearing. He signed a waiver of counsel indicating that the charges had been explained to him and admitted that he committed the violations charged in the violation report. At no time did defendant challenge any lack of notice.
The judgment revoking defendant's probation and activating his sentence is affirmed.
Affirmed.
Chief Judge EAGLES and Judge LEVINSON concur.