State v. Lejeune
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-208 NORTH CAROLINA COURT OF APPEALS Filed: 16 October 2012 STATE OF NORTH CAROLINA v. Cumberland County Nos. 07 CRS 68729 09 CRS 50434 JUSTIN BRYAN LEJEUNE, Defendant. Appeal by defendant from orders entered 19 September 2011 by Judge Court. James F. Ammons, Jr. in Cumberland County Superior Heard in the Court of Appeals 12 September 2012. Attorney General Roy Cooper, by Assistant Attorney General Brian R. Berman, for the State. Levine & Stewart, by James E. Tanner, III, for defendantappellant. HUNTER, Robert C., Judge. Justin Bryan Lejeune ( defendant ) appeals from the trial court s suspended orders revoking sentences. On his probation appeal, and defendant activating argues the two trial court erred in revoking his probation because: (1) he did not -2have notice of the alleged violations considered at the revocation hearing; and (2) the trial court s revocation was not supported by competent evidence. After careful review, we affirm the trial court s orders. Background In entering April 2008, into a defendant motor was vehicle, indicted for breaking and conspiracy for breaking and entering into a motor vehicle, and assault. On 6 November 2008, defendant entered a plea agreement in case 07 CRS 68729 whereby he pled guilty to the charges of breaking and entering a motor vehicle and dismissed. assault while the charge of conspiracy was The trial court entered a suspended sentence of six to eight months with a 24-month period of supervised probation, and assessed defendant costs, fines, and attorney s fees. On 4 March 2010, defendant pled guilty in case 09 CRS 50434 to two counts of trafficking in opium or heroin while related charges were dismissed. Pursuant to the plea agreement, the State agreed to suspend entry of judgment on defendant s plea until sought assistance by to the State, the state and defendant and federal agreed to provide governments investigations into related drug trafficking activities. August 2010, defendant s probation in case 07 CRS 68729 in On 8 was -3extended by an additional 24 months defendant to pay outstanding costs. to provide time for On 4 November 2010, the trial court entered a suspended sentence of 35 to 42 months with 36 months of supervised probation and assessed costs and fines in case 09 CRS 50434. On 1 March 2011, defendant s probation officer completed violation reports for cases 07 CRS 68729 and 09 CRS 50434. The reports alleged that defendant willfully violated the same three probation conditions in each case: (1) that he report as directed by the court or probation officer at reasonable times and places; (2) that he pay the clerk of court the fees and costs assessed in each case; and (3) that he remain within the jurisdiction of the court unless granted written permission to leave by the court or probation officer. Each violation report provided factual bases for each of the alleged violations. 10 March 2011, defendant signed both violation On reports acknowledging that he had received a copy of the reports and that he understood their contents. A probation violation hearing was held on 15 June 2011. For both cases, 07 CRS 68729 and 09 CRS 50434, the trial court determined that the reasonably satisfied defendant that admitted defendant or the violated [c]ourt each of is the -4conditions provided in the violation reports. The disposition in each case was continued until 19 September 2011. On 19 September 2011, defendant appeared at the probation revocation hearing. In open court, defendant acknowledged that he had received a copy of the probation violation reports, and he admitted to willfully violating the conditions listed in the reports. of his The trial court found defendant in willful violation probation as set forth in the violation reports and activated the sentences in both cases, specifying that the two sentences were to run concurrently. Defendant appeals. Discussion Defendant contends the trial court erred in revoking defendant s probation because: (1) defendant did not have notice of the alleged violations considered at the revocation hearing; and (2) the trial competent evidence. court s revocation was not supported by We disagree. A trial court s determination that a defendant has violated a condition of his probation must be supported by competent evidence and discretion. 150 (1960). sufficient may not be overturned absent an abuse of State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, Such evidence must be substantial evidence of probative force to generate in the minds of -5reasonable men the conclusion that breached the condition in question. defendant has in fact State v. Millner, 240 N.C. 602, 605, 83 S.E.2d 546, 548 (1954). Here, the record clearly establishes that defendant admitted he received a copy of the probation violation reports, and that he admitted the willful violations of his probation as alleged in the reports. As we have previously stated, a defendant in a probation revocation hearing may waive his right to a disclosure of the evidence against him by an in-court admission of the willful or without lawful excuse violation as contained in the written notice (or report) of violation[.] State v. Sellers, 185 N.C. App. 726, 728, 649 S.E.2d 656, 657 (2007) (affirming revocation of the defendant s probation where the defendant received notice of the alleged violations and admitted, through counsel, to two violations contained in the report) (quoting State v. Williamson, 61 N.C. App. 531, 533-34, 301 S.E.2d 423, 425 (1983)). Defendant received notice of the alleged probation violations and admitted the conditions were willfully violated. uncontradicted probation Additionally, violation the reports verified may serve and as sufficient evidence to support the trial court s revocation of probation. State v. Dement, 42 N.C. App. 254, 255, 255 S.E.2d -6793, 794 (1979). Thus, there was competent evidence to support the trial court s orders. Defendant argues, however, that he was not provided with notice of alleged violations that were considered by the trial court. The transcript reveals that the trial court questioned counsel about probation violations not alleged in the violation report. Yet, where a trial court sits without a jury and hears both competent and incompetent evidence, we presume that the court disregards decision. any incompetent evidence in reaching its State v. Seay, 59 N.C. App. 667, 670, 298 S.E.2d 53, 55 (1982) (rejecting the defendant s argument that the trial court erred evidence in was contained revoking presented competent his probation the trial to evidence of because court his S.E.2d 394 (1983). Therefore, in where probation appeal dismissed and disc. review denied, light incompetent the record violations), 307 N.C. 701, of the 301 competent evidence supporting the trial court s revocation orders, it is immaterial that the trial court discussed with counsel alleged violations that violation reports. did not appear in defendant s probation Defendant s argument is overruled. Defendant also argues that the trial court s revocation of probation was impermissibly based on hearsay and that the -7revocation orders must be reversed. of the evidence presented at Regardless of whether some the hearing was hearsay, defendant s in-court admission, through counsel, was not hearsay and provided a sufficient basis for the revocation of probation. See Sellers, 185 N.C. App. at 728-29, 649 S.E.2d at 657-58. Defendant s argument is without merit and is overruled. Lastly, defendant argues that there was no evidence that his failure to pay the fees, fine, and costs due under the terms of his probation orders was a willful failure to pay. Defendant, however, conceded the willfulness of his failure to pay at the probation violation hearing, and, as stated above, the verified and uncontradicted probation violation reports provided sufficient evidence of the willfulness of his actions. See Dement, Furthermore, other 42 N.C. defendant probation App. at conceded conditions, and 255, to the 255 S.E.2d willful competent at 794. violation evidence alleged violation is sufficient to revoke probation. of of one See Seay, 59 N.C. App. at 670-71, 298 S.E.2d at 55-56. Because the trial court s revocation of defendant s probation was supported by competent evidence, the trial court s orders are affirmed. AFFIRMED. -8Judges BRYANT and STEELMAN concur. Report per Rule 30(e).
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