Opinion
No. COA12–483.
2012-11-20
STATE of North Carolina v. Shay Larente WALL.
Attorney General Roy Cooper, by Assistant Attorney General Christina S. Hayes, for the State. Levine & Stewart, by James E. Tanner, III, for defendant-appellant.
Appeal by defendant from judgment entered 10 October 2011 by Judge Gary M. Gavenus in Forsyth County Superior Court. Heard in the Court of Appeals 5 November 2012. Attorney General Roy Cooper, by Assistant Attorney General Christina S. Hayes, for the State. Levine & Stewart, by James E. Tanner, III, for defendant-appellant.
CALABRIA, Judge.
Shay Larente Wall (“defendant”) appeals from a judgment revoking his probation and activating his suspended sentence. We affirm.
I. Background
On 23 May 2007, defendant pled guilty to, inter alia, three counts of assault with a deadly weapon with intent to kill. The trial court consolidated these convictions and sentenced defendant to a minimum term of twenty months to a maximum term of thirty-three months in the North Carolina Department of Correction. That sentence was suspended, and defendant was placed on supervised probation for thirty-six months.
On 20 November 2007, the trial court entered an order modifying the conditions of defendant's probation for good cause without a charge of violation. This modification allowed defendant an additional ninety days to complete his community service. On 12 March 2010, defendant's probation officer, Keri Pettit (“Pettit”), filed a probation violation report alleging that defendant had an outstanding balance of $990.50 remaining from the trial court's judgment.
A probation violation hearing was conducted on 29 March 2010 in Forsyth County Superior Court. At the hearing, the State indicated it was not seeking revocation but wanted to give defendant more time to comply with his monetary obligation. After defendant executed a waiver of counsel, the trial court entered an order finding that defendant's violation was not willful, and that all parties consented to extend defendant's probation by two years to provide defendant with additional time to satisfy his remaining balance. The court's order stated that once defendant satisfied his remaining balance, he could be transferred to unsupervised probation.
On 27 June 2011, Pettit filed another probation violation report alleging that defendant was in arrears in the amount of $890.50. In addition, the report alleged that defendant had been convicted of the offense of assault on a female and that other charges were pending. Defendant admitted to these violations at a probation violation hearing on 10 October 2011. The trial court revoked defendant's probation and activated defendant's active sentence. Defendant appeals.
II. Jurisdiction
Defendant first argues the trial court lacked jurisdiction to revoke his probation and activate his sentence. Specifically, defendant contends that the 29 March 2010 modification of his probation was invalid because his consent to the modification was obtained without a valid waiver of defendant's constitutional right to counsel. Without this modification, defendant's probationary term would have expired on 22 May 2010, prior to the violations which provided the basis for the trial court's revocation.
However, defendant had an opportunity to contest the validity of the 29 March 2010 modification at his 10 October 2011 probation revocation hearing, but failed to do so. Consequently, defendant has waived appellate review of this issue. See State v. Rush, 158 N.C.App. 738, 741–42, 582 S.E.2d 37, 39 (2003) (holding that defendant's claim of lack of jurisdiction to extend probation was waived for failure to raise the claim at the revocation hearing). This argument is overruled.
III. Revocation
Defendant argues the trial court abused its discretion when it revoked his probation and activated his original sentence. We disagree.
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) (citations and quotation marks omitted). A trial court's decision must indicate the exercise of “conscientious judgment, not arbitrary or willful action.” State v. Freeman, 47 N.C.App. 171, 175, 266 S.E.2d 723, 725 (1980) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)).
Defendant argues that the trial court abused its discretion because it failed to fully evaluate the circumstances of his case before revoking his probation. Specifically, defendant notes that, apart from non-payment, which was not willful, he fully complied with the conditions of his probationary sentence for four years. In addition, defendant notes that his new assault charges were misdemeanors, rather than felonies, and that they differed in nature from the initial assaults for which he was originally placed on probation. Defendant contends that based upon these circumstances, the trial court should have considered other alternatives before deciding to revoke his probation.
Defendant's arguments fail to establish an abuse of discretion by the trial court. At the revocation hearing, defendant admitted that while he was on probation for multiple offenses of assault with a deadly weapon, he committed two additional assaults. Further, defendant admitted that he remained in arrears on his court-ordered payments despite the fact that he was given extra time to comply. As a result of these violations, the trial court had the discretion to revoke probation, and it exercised this discretion appropriately. This argument is overruled.
IV. Conclusion
Defendant waived appellate review of the 29 March 2010 modification of his probation. The trial court did not abuse its discretion by revoking defendant's probation and activating his sentence. We affirm the order of the trial court revoking probation and activating defendant's sentence.
Affirmed. Judges HUNTER, ROBERT C. and McCULLOUGH concur.
Report per Rule 30(e).