An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Appellate Procedure.
NO. COA02-355
NORTH CAROLINA COURT OF APPEALS
Filed:
15 October 2002
STATE OF NORTH CAROLINA
v.
Guilford County
Nos. 00 CRS 23535, 96300
ANGELA MICHELLE HARRIS
Appeal by defendant from judgments entered 20 September 2001
by Judge James M. Webb in Guilford County Superior Court.
Heard in
the Court of Appeals 7 October 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Harriet F. Worley, for the State.
George E. Kelly, III, for defendant appellant.
McCULLOUGH, Judge.
On 24 June 1998, defendant Angela Michelle Harris pled guilty
to fourteen counts of embezzlement and one count of attempted
embezzlement.
sentenced
to
imprisonment.
Pursuant to the plea agreement, defendant was
five
consecutive
terms
of
six
to
eight
months’
Defendant’s sentence was suspended and she was
placed on supervised probation for thirty-six months.
As terms of
her probation, defendant was ordered to pay $175,135 in restitution
and costs and placed on curfew.
At the end of defendant’s
probation period, the unpaid balance of restitution was to become
-2a civil judgment against her.
On 9 and 16 August 2001, probation violation reports were
filed
alleging
that
defendant
had
violated
her
probation.
Specifically, it was alleged that defendant: (1) was in arrears on
the monetary conditions of her probation; (2) did not notify her
probation officer that she had been fired from her employment; (3)
made misrepresentations to her probation officer regarding her
employment and the monetary conditions of her probation; (4) failed
to remain gainfully employed; (5) failed to report for scheduled
office
visits;
(6)
violated
curfew
and
failed
to
make
her
whereabouts known to her probation officer; and (7) had committed
the offense of embezzlement on 24 May 2001.
On 17 September 2001, a probation violation hearing was held
in Guilford County Superior Court.
probation.
Defendant denied violating her
The trial court found that defendant had willfully
violated the terms of her probation without legal justification and
revoked her probation in part, and modified her probation in part.
The trial court activated three of defendant’s suspended sentences,
sentencing defendant to two consecutive terms of six to eight
months’ imprisonment, and an additional consecutive term of five to
six months’ imprisonment.
in
defendant’s
remaining
The trial court also modified probation
cases,
ordering
that
defendant
be
continued on probation for a period of five years upon her release
from prison.
Defendant appeals.
Defendant brings forth three assignments of error:
court
erred
in
(1)
finding
willful
violations
and
The trial
revoking
-3defendant’s probation on the ground that the trial court’s factual
findings are erroneous and do not match the allegations; (2) any
finding that defendant willfully failed to make restitution on the
ground that this finding was unsupported by evidence and enforcing
this condition would violate the plea agreement and be an unlawful
condition of probation; and (3) failing to enter confinement credit
of 91 days on its judgment on the ground that the trial court found
defendant was entitled to it.
I.
Defendant first argues that the paragraph numbers in her
violation report cited in the judgments are inconsistent with the
paragraphs in the report, and that the findings of fact were
insufficient to support revocation of her probation.
Defendant
further notes that the trial court’s reassignment of case numbers
created confusion in regard to her actual sentence.
We are not
persuaded.
It is well settled that in a probation
revocation hearing, all that is required is
that the evidence be such as to reasonably
satisfy the judge in the exercise of his sound
discretion
that
defendant
has
willfully
violated a valid condition of probation or
that defendant has violated without lawful
excuse a valid condition upon which the
sentence was suspended.
State v. Lucas, 58 N.C. App. 141, 145, 292 S.E.2d 747, 750, disc.
review denied, 306 N.C. 390, 293 S.E.2d 593 (1982).
The transcript of the probation revocation hearing indicates
that
the
trial
court
found
that
defendant
had
“unlawfully,
willfully and without legal justification violated the terms and
-4conditions of her probation as alleged herein . . ..”
For
instance, the probation officer testified that defendant had failed
to obtain prior approval for and notify the officer of a change in
her employment; was not truthful in informing the officer about her
employment and her failure to make required restitution payment;
failed to make monetary payments as required, although defendant
had paid all her restitution at the time of the hearing; and that
defendant had committed a subsequent criminal offense of embezzling
while on probation.
The officer further testified that defendant
twice failed to report for scheduled office visits, and was twice
found to be away from her place of residence during curfew hours.
Defendant had also left town without contacting the officer.
Further, defendant testified that she had gotten behind on her
restitution payments and that she had pled guilty to embezzlement
charges while on probation.
When asked why she did not contact her
probation officer when she left town, she stated that “it totally
slipped my mind.”
It is clear to this Court that the findings and
conclusions of the trial court are based on competent evidence.
State v. Crouch, 74 N.C. App. 565, 328 S.E.2d 833 (1985).
There
was no abuse of discretion by the trial court in finding that
defendant violated her probation.
As to the inconsistency between the paragraph numbers in the
violation reports and the judgments and the seeming confusion it
created around defendant’s sentence, the record and transcript
reveal that the trial court properly considered the evidence before
it.
While there may have been some confusion in the transferring
-5of judgment numbers, any errors were merely clerical in nature and
had no effect on defendant’s due process rights.
See State v.
Gell, 351 N.C. 192, 524 S.E.2d 332, cert. denied, 531 U.S. 867, 148
L. Ed. 2d 110 (2000).
Accordingly, this assignment of error is
overruled.
II.
We next consider whether the trial court erred in revoking her
probation because there was insufficient evidence and no findings
of fact that she willfully failed to make her ordered restitution.
Defendant notes that the evidence shows that she was current on her
payments at the time of the hearing.
Additionally, defendant
contends that the order for her to pay $175,135 as part of her
probation is unreasonable and denied her constitutional right
against cruel and unusual punishment.
Defendant asserts that it
was error for the trial court to impose a condition of probation
with which she clearly cannot comply.
After careful review of the record, briefs and contentions of
the parties, we find no error.
This Court has stated:
Any violation of a valid condition of
probation is sufficient to revoke defendant’s
probation.
All that is required to revoke
probation is evidence satisfying the trial
court in its discretion that the defendant
violated a valid condition of probation
without lawful excuse.
The burden is on
defendant to present competent evidence of his
inability to comply with the conditions of
probation; and that otherwise, evidence of
defendant’s failure to comply may justify a
finding that defendant’s failure to comply was
wilful or without lawful excuse.
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).
-6Here, defendant violated the condition of her probation that she
attend regularly scheduled meetings with her probation officer.
Defendant admitted that she failed to attend on at least one
occasion.
she
missed
Defendant offered no lawful excuse, stating only that
the
appointment
because
it
“slipped
my
mind.”
Defendant’s admission that she missed the appointment, without
offering any evidence to justify the absence, was sufficient within
itself to sustain the trial court’s finding that her failure to
comply was without lawful excuse.
See State v. Alston, 139 N.C.
App. 787, 794-95, 534 S.E.2d 666, 671 (2000).
Additionally, we
note that defendant pled guilty to charges of embezzlement on 24
May 2001.
The offense was committed on 21 April 2000, while
defendant was on probation. Thus, defendant violated the regular
condition of probation that she “[c]ommit no criminal offense in
any jurisdiction.” N.C. Gen. Stat. § 15A-1343(b)(1). Accordingly,
we conclude it was within the trial court’s discretion to revoke
defendant’s probation.
Additionally, we decline to review defendant’s argument that
the condition of probation that she pay $175,135 in restitution was
unreasonable and constituted cruel and unusual punishment.
Our
Supreme Court stated in Tozzi that “defendants may not raise an
initial objection to a condition of probation . . .
on appeal, but
must first object no later than the revocation hearing.” Tozzi, 84
N.C. App. at 520, 353 S.E.2d at 252.
Neither the record or
transcript in this case contains written or oral objections by
defendant raising this issue.
Accordingly, the issue has not been
-7preserved for appeal.
III.
Finally, defendant argues the trial court erred by failing to
give defendant credit for 91 days served towards her sentence.
agree.
We
The transcript of the revocation hearing reflects that
defendant was to receive credit for ninety-one days spent in
custody. However, the judgment only credited defendant for one day
spent
in
custody.
Accordingly,
the
matter
is
remanded
for
correction of the judgment to reflect that defendant should be
credited with ninety-one days of prior confinement.
No error; remanded for correction of a clerical error in the
judgment.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).
