Opinion
No. 06-1680.
Filed October 16, 2007.
Granville County No. 05-CRS-52410.
Appeal by defendant from judgment entered 13 September 2006 by Judge Henry W. Hight, Jr., in Granville County Superior Court. Heard in the Court of Appeals 29 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General Richard A. Graham, for the State. Don Willey, for defendant-appellant.
On 5 December 2005, Michael Antwan Young (defendant) entered a no contest plea to two counts of indecent liberties in violation of N.C. Gen. Stat. § 14-202.1. The trial court sentenced defendant to fifteen to eighteen months, suspended, and placed him on supervised probation for twenty months.
On 26 July 2006 defendant was served with a probation violation report, alleging that defendant violated his probation by failing to: (1) timely complete community service; (2) report to his probation officer; (3) make payments towards his indebtedness; (4) make payments towards his probation supervision fees; (5) attend sex offender classes; and (6) pay his community service fee. On 31 July 2006 the court entered an order of violation of probation and modified the original judgment by allowing defendant until 10 September 2006 to complete his community service.
On 11 September 2006 defendant was served with an addendum probation violation report, dated 18 August 2006, alleging that on 1 August 2006, defendant had changed his residence without notifying or obtaining permission from his probation officer. On 13 September 2006, the court revoked defendant's probation and activated his sentence of fifteen to eighteen months.
From this order, defendant appeals.
I: Standard of Review
In an appeal of a probation revocation, our standard of review is whether the trial court abused its discretion. State v. Harris, 361 N.C. 400, 646 S.E.2d 526 (2007). "`[T]he evidence [must] be such as to reasonably satisfy the [trial court] in the exercise of [its] sound discretion that the defendant has willfully violated a valid condition of probation.'" Id. at 404, 646 S.E.2d at 529 (quoting State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967)). "`Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
Sufficiency of the Evidence
In the instant case, defendant contends that the trial court erred by entering judgment revoking his probation, because there was insufficient evidence admitted at the hearing to support the violations of probation alleged in the 19 July 2006 report. It is true that the evidence offered at the hearing does not support a finding that defendant committed the violations alleged in the 19 July 2006 report. This is because the hearing on 13 September 2006 was a hearing to determine whether defendant had committed the violation alleged in the 11 September 2006 report, and the evidence presented at the hearing did, in fact, support the single allegation contained in the 11 September 2006 report, that defendant failed to notify his probation officer of his change in address. We conclude the court's failure to reference the 11 September 2006 report was a clerical error.
N.C. Gen. Stat. § 15A-1343(b)(3) (2005) states that a probationer must "obtain prior approval from the officer for, and notify the officer of, any change in address or employment." Further, the court's judgment suspending sentence on 5 December 2005 stated that "defendant shall . . . notify the officer of any change in address[.]" On 9 September 2006, defendant was served with an addendum probation violation report, stating that defendant violated a regular condition of his probation by failing to "obtain prior approval from the officer for, and notify the [officer] of, any change in address[.]"
At the 13 September 2006 hearing, the following colloquy transpired:
Defense Counsel: Your Honor . . . I want to be clear what we are hearing[.] . . . It appeared that in July, July 31st, that this young man appeared before the Court, given until September 10th to finish the community service. And I — my question was to be sure — are we hearing the violation report as it existed before the July 31st court appearance or only the issue that has arisen since he was given that extra time to do community service.
. . . .
The Court: Well, I think it's whether or not on or about August 1, `06 defendant informed his probation officer that he had moved to [a different address]. Defendant changed his address without permission of his probation officer.
Defendant and defense counsel then admitted that defendant willfully failed to obtain prior approval from his probation officer before he changed his residence. Defendant testified that he notified his probation officer one week after the move. Counsel for defendant stated that defendant admitted to a willful violation of his probation. However, in its 13 Sep dgment, the trial court did not make find tember 2006 ju ings with regard to defendant's failure to obtain approval for his change of address. Rather, the court referenced the alleged violations in paragraphs one through six of the 19 July 2006 report. This is due to a clerical error.
"It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to supply defects or omissions in the record, and no lapse of time will debar the court of the power to discharge this duty."
State v. Jarman, 140 N.C. App. 198, 203, 535 S.E.2d 875, 879 (2000) (quoting State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956)).
Because it is abundantly clear from the record that ri the t al court revoked defendant's probation due to his change of residence without the permission of his probation officer, we agree with the State that the court's reference to the 19 July 2006 report in the written judgment is an obvious clerical error. Consequently, defendant's arguments related to the sufficiency of the evidence to sustain the revocation of his probation are without merit, and defendant's assignments of error are overruled.
However, we remand this matter for the correction of the clerical error to show that defendant violated paragraph one in the violation report served upon defendant 11 September 2006. See State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999) ("`It is universally recognized that a court of record has the inherent power and duty to make its records speak the truth.'" (quoting Cannon, 244 N.C. at 403, 94 S.E.2d at 342).
II: Ineffective Assistance of Counsel
In his second argument, defendant contends that counsel for defendant provided ineffective assistance of counsel by admitting defendant's willful violation without defendant's consent. We disagree.
"To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense." State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citation omitted). To establish prejudice, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the proceeding's result would have been different.'" Wiggins v. Smith, 539 U.S. 510, 521, 156 L. Ed. 2d 471, 479 (2003) (citation omitted).
In the instant case, defendant testified:
Counsel for Defendant: . . . Did you, in fact, move to a new address?
Defendant: Yes, I did.
Counsel: And when did you move?
Defendant: I'm not sure of the date but it was like a week before . . . I notified my — my probation officer. . . .
. . . .
Counsel: Okay. And do you remember what date you informed him[,] your probation officer that you — that you had moved?
Defendant: I'm not sure.
Due to defendant's own admission that he moved at least one week prior to notifying his probation officer, we conclude that there is not a reasonable probability that, but for counsel's admission, the result of the proceeding would have been different. The proceedings were free from prejudicial error. Accordingly, the decision of the trial court to revoke probation is left undisturbed.
Affirmed and remanded in part for correction of the order revoking probation.
Judges MCGEE and STEPHENS concur.
Report per Rule 30(e).