Opinion
No. 07-1238.
Filed 6 May 2008.
Buncombe County Nos. 04CRS53785, 04CRS53787.
Appeal by defendant from judgment entered 12 July 2007 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 21 April 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Katherine A. Murphy, for the State. Carol Ann Bauer for defendant-appellant.
James Steven Servantes ("defendant") appeals from a judgment entered revoking defendant's probation and activating his suspended sentence. Defendant argues the trial court abused its discretion in finding defendant willfully violated a condition of his probation without lawful excuse. After careful review, we affirm.
On 8 June 2004, defendant was indicted for possession of a weapon of mass destruction, a sawed-off shotgun, and resisting a public officer. Defendant pled guilty to both charges and received a suspended sentence. He was placed on thirty-six months of supervised probation and ordered to pay $436.00 in costs and fees. The trial court also ordered defendant to refrain from using illegal drugs or controlled substances and to submit to drug testing as required by his probation officer.
Over the course of defendant's probation, a total of four probation violation reports were filed. Defendant first violated probation by testing positive for marijuana on 21 February 2005. The Division of Community Corrections added a condition of probation that defendant must submit to substance abuse evaluation and monitoring. Defendant violated probation again when he admitted to using marijuana on 15 April 2005 and also fell behind in making payments to the clerk of court. After these violations, the trial court imposed a new condition that defendant enter into a treatment program. The third violation report alleged that defendant fell behind in making payments to the clerk of court and failed to comply with requirements of the TASC program. Defendant admitted to the violations and the trial court ordered defendant to serve an active term of five months and to participate in an intensive supervision program.
A fourth probation violation report was filed on 20 March 2007 alleging that defendant failed to appear for a scheduled drug screening appointment on one occasion, and that on three separate occasions he was unable to produce a drug screen. At the hearing held on 12 July 2007, defendant admitted the violations, but his attorney advised the court that defendant had trouble providing a urine sample for the drug testing, and that defendant had sought medical advice as to why he could not produce a sample. No medical reasons for the problem were found, but defendant's doctor indicated defendant most likely suffered from "performance anxiety." Defense counsel also advised the court that defendant's most recent drug screen was negative, that he had paid additional monies toward his financial obligation, that he was currently employed and supporting his four children, and that he was actively involved in his church. The trial court asked the probation officer for a recommendation, and the probation officer recommended that probation be revoked, since defendant had had three previous violation reports filed against him. The trial court then activated defendant's sentence of nineteen to twenty-three months and gave defendant credit for time already spent in jail.
Defendant appeals from a judgment entered upon revocation and argues the trial court abused its discretion by revoking probation where defendant presented competent evidence that his probation violations were not willful. Defendant contends the trial court erred by failing to make specific findings of fact that it considered and evaluated defendant's evidence regarding lawful excuse. Further, defendant argues the trial court abused its discretion in revoking defendant's probation without considering the steps taken by defendant to remedy the violations and to improve his life and involve himself in his community. We disagree.
A trial court has the discretion to revoke probation upon evidence which is sufficient to satisfy the court that a defendant has violated a condition of probation. State v. Darrow, 83 N.C. App. 647, 648-49, 351 S.E.2d 138, 139 (1986). It is well established that a single violation is sufficient to support revocation of probation. State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). It is defendant's burden to present sufficient competent evidence that he was unable to comply with the conditions of his probation. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). Absent such evidence, failure to comply "may justify a finding that defendant's failure to comply was wilful or without lawful excuse." Id. Where defendant does present evidence regarding his inability to comply with a valid condition of probation, the trial court is not required to accept defendant's evidence as true. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983). Although the trial court has a duty to make findings of fact that it considered the evidence presented at the revocation hearing, its failure to do so does not constitute an abuse of discretion. State v. Belcher, 173 N.C. App. 620, 624-25, 619 S.E.2d 567, 570 (2005).
In the instant case, defendant admitted his violations. Although he presented evidence that he sought medical advice for his inability to produce a urine sample upon request, no medical reasons were found. Instead, the doctor suggested that defendant suffered from "performance anxiety." Defendant gave no other reason for his inability to produce a drug screen. The trial court's findings indicate that the court considered the record in the case, the evidence presented by the parties, and statements made on behalf of the State and defendant before making its decision. We find the trial court sufficiently considered defendant's evidence, even though it did not accept the evidence as sufficient to excuse defendant's failure to satisfy the conditions of his probation. Therefore the trial court did not abuse its discretion in deciding defendant violated probation willfully and without lawful excuse.
Defendant also argues the trial court erred in revoking probation where defendant presented evidence of positive steps he has taken to improve his life. Once the trial court determines that a condition of probation has been violated, the court must then decide whether to revoke probation or to continue or modify probation. Williamson, 61 N.C. App. at 534, 301 S.E.2d at 425-26. However, probation is a "matter of grace, not of right." Darrow, 83 N.C. App. at 648, 351 S.E.2d at 139. Here, defendant's most recent violations were the fourth set of violations over the course of his probation. We do not agree that the trial court erred or abused its discretion in deciding to revoke defendant's probation and activate his sentence. Defendant's assignments of error are overruled.
Affirmed.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).