Opinion
No. COA12–14.
2012-07-17
STATE of North Carolina, v. Matthew Miles PRICE.
Attorney General Roy Cooper, by Assistant Attorney General Rajeev K. Premakumar, for the State. Richard Croutharmel, for defendant appellant.
Appeal by defendant from judgments entered 19 August 2011 by Judge Kevin M. Bridges in Rowan County Superior Court. Heard in the Court of Appeals 2 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Rajeev K. Premakumar, for the State. Richard Croutharmel, for defendant appellant.
McCULLOUGH, Judge.
Matthew Miles Price (“defendant”) appeals from judgments entered by the trial court revoking his probation and activating his sentences. We affirm.
On 19 August 2010, defendant pled guilty to forty counts of sexual activity with a student by a teacher. The trial court consolidated the offenses into five judgments, and sentenced defendant to five consecutive terms of ten to twelve months each. The sentences were suspended, and defendant was placed on 60 months of supervised probation. He was also ordered to register as a sex offender for a period of thirty years under the Sex Offender Control Program.
On 12 July 2011, defendant's probation officer filed a probation violation report in each of the five cases alleging that defendant violated the terms of the Sex Offender Control Program by having pictures on his cell phone showing him and a female having sexual intercourse and sending the pictures to another person in his phone's contact list.
A probation revocation hearing was held on 19 August 2011. At the hearing defendant admitted he willfully violated the terms and conditions of his probation, and the trial court entered judgment in each of the five cases revoking probation and activating defendant's underlying sentences. Defendant gave oral notice of appeal at the conclusion of the hearing.
On appeal, defendant first argues the trial court lacked jurisdiction to revoke his probation in file number 09 CRS 56186 because the judgment in that case imposed a probationary period of sixty months but failed to indicate that a period of probation longer than the presumptive statutory maximum was necessary. He contends that without this necessary finding, the judgment is flawed and must be remanded. He asserts he was prejudiced by the error since his probation was revoked even though the judgment lacked the requisite finding. We do not agree that the trial court lacked jurisdiction.
Pursuant to statute, “[u]nless the court makes specific findings that longer or shorter periods of probation are necessary, the length of the original period of probation for offenders” shall be no more than thirty-six months for felons sentenced to intermediate punishment. N.C. Gen.Stat. § 15A1343.2 (d)(4) (2011). Here, the trial court ordered defendant placed on probation for sixty months in each of the five consolidated judgments. On four of the five judgment forms, the trial court did indeed find that a longer period of probation is necessary. In case number 09 CRS 56186, however, the trial court failed to check the same box as it did on the other four judgments.
Ordinarily, the trial court's failure to make a specific finding that a longer probationary period than that prescribed by statute is necessary constitutes error which must be corrected on remand. See State v. Mucci, 163 N.C.App. 615, 625, 594 S.E.2d 411, 418 (2004). However, we conclude that the trial court's omission in this case is more in the nature of a clerical error, since the trial court did make the requisite finding in four of the five nearly identical judgments, thereby clearly indicating that it found a longer probationary period necessary in each case. Clerical errors have been deemed by this Court to be harmless in various circumstances. See State v. Jarman, 140 N.C.App. 198, 202, 535 S.E.2d 875, 878–79 (2000) (listing multiple appellate decisions finding “harmless clerical errors,” including “the inadvertent checking of a box on a judgment form”). Here, we conclude the trial court's failure to check a box on the judgment form in case number 09 CRS 56186 constitutes a harmless clerical error, particularly where defendant violated the terms and conditions of his probation well within the presumptive statutory maximum of thirty-six months. This argument has no merit.
Next, defendant contends the trial court abused its discretion in revoking his probation since his violation was “de minimus” and that he had offered a valid, lawful excuse for the violation. We are not persuaded by these arguments.
This Court has stated:
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) (internal quotation marks and citation omitted). Only one violation is necessary to support an order activating a sentence. State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). The defendant has the burden of showing a lawful excuse or lack of willfulness in failing to comply with probation terms and conditions. State v. Crouch, 74 N.C.App. 565, 567, 328 S.E.2d 833, 835 (1985).
Here, the special conditions of the Sex Offender Control Program imposed on defendant in each case included provisions that defendant “[n]ot possess any sexually stimulating or sexually oriented materials as deemed inappropriate by the supervising officer,” nor “use, possess, control, distribute, sell, exchange or collect pornography[.]” Evidence was presented by defendant's probation officer that defendant had pictures on his cell phone of him and a female having sex, and that defendant sent those pictures to a third person. The pictures were presented to the trial court for viewing, and the trial court determined that the pictures were of a sexually explicit nature. The probation officer stated that he had thoroughly explained the terms of the Sex Offender Control Program to defendant when supervision commenced, including what he could and could not possess.
Testimony was elicited that defendant did not attempt to hide the pictures, that he did not realize that he could get in trouble for having them, and that in all other respects he was in compliance with the terms of his probation. Defendant also presented a letter from his girlfriend stating that she consented to and encouraged him to take the pictures of her, and a letter from the friend who received the pictures stating that he had asked defendant to send him the pictures.
Defendant contends that the trial court abused its discretion in deciding to revoke his probation rather than to extend or modify it, since the evidence showed he was in substantial compliance with his probation. Defendant asserts that activating sentences of a total of five years is not appropriate given the circumstances, since having sexually explicit pictures on his cell phone is not illegal in and of itself.
Despite these arguments, the special conditions clearly stated that defendant was not to possess “sexually oriented materials as deemed inappropriate by the supervising officer[.]” Evidence was presented that defendant possessed sexually explicit pictures, and he admitted to having them. Based on the evidence and the admission, we conclude that the trial court did not abuse its discretion in determining that defendant willfully violated the terms of his probation. Defendant failed to meet his burden of showing that he had a lawful excuse for possessing the pictures or that he was unable to comply with the terms of his probation. Furthermore, in light of defendant's admission and the probation officer's recommendation of revocation, we conclude the trial court did not abuse its discretion in deciding to revoke probation and activate the sentences rather than to modify or extend probation. The judgments revoking defendant's probation and activating his sentences are hereby affirmed.
Affirmed. Judges HUNTER (ROBERT C.) and ELMORE concur.
Report per Rule 30(e).