State v. Neff
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA12-108 NORTH CAROLINA COURT OF APPEALS Filed: 16 October 2012 STATE OF NORTH CAROLINA v. Buncombe County Nos. 10 CRS 1797-99, 51800-01, 51804-05, 700213 WILLIAM JAMES NEFF Appeal by Defendant from judgments entered 13 October 2011 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 8 October 2012. Attorney General Roy Cooper, by Associate Attorney General Alesia M. Balshakova, for the State. Mercedes O. Chut for Defendant. STEPHENS, Judge. Defendant William James Neff appeals from judgments entered upon revocation of probation and activation of his suspended sentences. We affirm. -2On 17 September 2010, Defendant pled guilty to four counts each of obtaining property by false pretense and misdemeanor larceny. Defendant By to separate two judgments, consecutive the terms trial of ten court to sentenced twelve months imprisonment, suspended each sentence, and placed Defendant on supervised probation for 36 months. Conditions of probation for both judgments included requirements that Defendant report to his probation officer illegal drug. and not use, possess, or control any Defendant was also ordered to pay court costs, fines, and restitution in one of the obtaining property by false pretense cases. Defendant s probation officer, Brannon Wilson, filed two violation reports on 29 September 2011, alleging that Defendant had violated judgment. the The conditions of conditions reports his of probation alleged probation that by: contained Defendant (1) testing in each violated the positive for marijuana and cocaine on three occasions; (2) failing to satisfy his monetary obligations; (3) failing to report to his probation officer; and (4) failing to participate in treatment and counseling. At the probation revocation hearing on 13 October 2011, the court asked Defendant s counsel, Would [Defendant] waive a -3formal reading and admit? Defendant s counsel responded, He would waive and admit, your Honor. Wilson then testified that Defendant was served with the violation reports; tested positive for marijuana and cocaine in July, August, and September 2011; was in arrears for court and supervisory fees; was terminated from treatment due to non-compliance; and failed to comply with a substance abuse treatment program. When the court asked for Wilson s recommendation, he responded, Revocation, your Honor. Defense basically counsel turned informed himself violated in the case. in to the court Mr. Wilson that and Defendant asked to be Counsel further informed the court that Defendant had paid one of the cases off and had returned some of the stolen property, and asked the court to run the sentences concurrently. probation. The court found that Defendant willfully violated Afterwards, Defendant informed the court that [t]he only reason [he] didn t pay the second case off was because [he] was trying to get the [stolen property he returned] taken off and [he] couldn t find no way [sic] to get it done. asked the court to consolidate his sentences. Defendant By judgments entered 13 October 2011, the court revoked Defendant s probation and activated his original sentences. Defendant appeals. -4Defendant first argues that the trial court erred in failing to conduct a revocation hearing pursuant to N.C. Gen. Stat. § 15A-1345(e) where Defendant did not formally waive his right to the hearing. After careful review, we conclude that the trial court did conduct a proper revocation hearing, and as a result, Defendant s contentions regarding waiver are inapposite. Section 15A-1345(e) provides in pertinent part: Before revoking or extending probation, the court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings. . . . At the hearing, evidence against the probationer must be disclosed to him, and the probationer may appear and speak in his own behalf, may present relevant information, and may confront and crossexamine adverse witnesses unless the court finds good cause for not allowing confrontation. The probationer is entitled to be represented by counsel at the hearing[.] N.C. Gen. Stat. § 15A-1345(e) (2011). probation is not bound by strict [A] proceeding to revoke rules of evidence and an alleged violation of a probationary condition need not be proven beyond a reasonable doubt. State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999) (citation omitted). In sum, probation summary revocation proceedings are informal, -5proceedings. State v. Sparks, 362 N.C. 181, 187, 657 S.E.2d 655, 659 (2008) (citations omitted). Defendant contends that, given Defendant s constitutional and statutory rights to a hearing before revocation of his probation, the trial court had a duty to make an inquiry of Defendant about (1) whether he wished to waive his right to a hearing, and (2) whether any such waiver was intelligent, knowing, and voluntary. However, our review of the transcript while reading reveals of the that, violation Defendant report waived and hearing the admitted formal violating conditions of his probation, he did not waive his right to a hearing, and the trial court conducted pursuant to section 15A-1345(e). counsel, the evidence against a revocation hearing Defendant was represented by [Defendant was] disclosed to him, [he spoke] in his own behalf, . . . present[ed] relevant information, and [had the opportunity to] confront and crossexamine adverse witnesses [here, his probation officer]. Gen. Stat. § 15A-1345(e). court did conduct section 15A-1345(e). a hearing, inapposite. a N.C. Accordingly, we conclude that the revocation hearing which complied with Because we hold that the court did conduct Defendant s arguments regarding waiver are -6Defendant also argues that revocation was improper because the State offered no evidence that monetary obligations was willful. his failure to meet his We disagree. To revoke a defendant s probation, the evidence need only reasonably satisfy the [trial court] in the exercise of [its] sound discretion that the defendant has willfully violated a valid condition of probation[.] 353, 154 condition S.E.2d of 476, 480 probation defendant s probation. is State v. Hewett, 270 N.C. 348, (1967). The sufficient breach grounds of to any revoke one a State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53, 55 (1982), disc. review denied, 307 N.C. 701, 301 S.E.2d 394 (1983). A verified probation violation report is competent evidence that a violation occurred. State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 58 (1967). Here, the verified violation reports alleged that, by testing positive for marijuana and cocaine in July, August, and September 2011, Defendant willfully violated the condition of his probation that he not use any illegal drug. Wilson confirmed that Defendant tested positive for illegal drugs and Defendant admitted willfully violating his probation. Because this evidence establishing that Defendant breached one of the conditions of his probation was sufficient grounds for -7revocation, we need not consider Defendant s argument regarding the remaining grounds for revocation found by the trial court. Accordingly, the judgments revoking Defendant s activating his sentences are AFFIRMED. Chief Judge MARTIN and Judge ERVIN concur. Report per Rule 30(e). probation and
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