State v Graveran

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure. NO. COA11-218 NORTH CAROLINA COURT OF APPEALS Filed: 18 October 2011 STATE OF NORTH CAROLINA v. Wake County No. 07 CRS 85880 ISRAEL SAULO GRAVERAN Appeal by defendant from judgment entered 25 October 2010 by Judge Henry V. Barnette, Jr., in Wake County Superior Court. Heard in the Court of Appeals 19 September 2011. Attorney General Roy Cooper, by Assistant Attorney General Lora C. Cubbage, for the State. James W. Carter, for defendant-appellant. THIGPEN, Judge. Defendant Israel Graveran ( defendant ) appeals from the superior court s judgment revoking his probation and activating his suspended sentence. We affirm. On 5 June 2007, defendant entered a plea of guilty to the charges of assault with a deadly injury and second-degree burglary. weapon inflicting serious The trial court imposed a -2suspended sentence of 25 to 39 months imprisonment and placed defendant on supervised probation for 36 months. On or about 29 July 2010, defendant s probation officer filed a violation violations: (1) report, defendant which was in alleged arrears the on following his monetary obligation; (2) defendant pled guilty to driving while impaired ( DWI ) on 23 February 2010; (3) defendant was found guilty of misdemeanor intoxicated and disruptive behavior and second- degree trespass on 8 April 2010; (4) defendant was charged with DWI and driving while license revoked on 23 April 2010, and the charges are still pending; and (5) defendant was found guilty in district court of resisting a public officer and simple assault on 10 June 2010, and defendant appealed to superior court, where the case is still pending. The trial court conducted a probation revocation hearing on 25 October 2010. Defendant admitted his violations, and the trial that court found defendant had willfully violated his probation by having an arrearage on his monetary obligation and by having been convicted of several criminal offenses. The trial court declined to consider the violations which were based only on pending criminal charges, not convictions. Counsel for defendant then requested that the trial court reduce defendant s -3sentence or terminate his probation. counsel asked the dependency, mental treatment. The court to illnesses, trial In support of his request, consider military court defendant s history, declined and defendant s alcohol need for request, revoked defendant s probation, and activated his sentence of 2539 months imprisonment. On appeal, Defendant appeals. defendant first argues that the trial court erred by failing to personally examine defendant regarding his admission that he violated his probation. Defendant argues that the trial court should comply with N.C. Gen. Stat. § 15A-1022(e) (2009), which applies to guilty pleas in criminal prosecutions, to ensure that admission of a probation violation is consistent with due process requirements. We have already rejected this argument in State v. Sellers, 185 N.C. App. 726, 728-29, 649 S.E.2d 656, 657 (2007) (holding that there is no requirement that the trial court personally examine a defendant regarding his admission that he violated his probation ). Nevertheless, defendant argues that his case is distinguishable from Sellers due to his difficult personal circumstance and the trial court s rejection of the parties agreement to a reduced sentence. are not persuaded. the We This Court based its decision in Sellers on well-established law regarding the informal nature of -4probation revocation proceedings, not the personal circumstances of the defendant. See id. Therefore, we find no error in the trial court s failure to personally examine defendant. Next, defendant contends that the trial court erred finding that defendant willfully violated his probation. in Any violation of a valid condition of probation is sufficient to revoke defendant s probation. probation is evidence discretion that the All that is required to revoke satisfying defendant the violated probation without lawful excuse. trial a court valid in condition is sufficient to of State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted). evidence its support a finding of a Such violation unless the defendant successfully carries the burden of showing lawful excuse or lack of willfulness. See State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). Findings made in support of revoking probation must be supported by competent evidence, and will not be disturbed on appeal without a showing that the trial discretion. court committed a manifest abuse of State v. Sherrod, 191 N.C. App. 776, 777-78, 663 S.E.2d 470, 472 (2008) (internal quotation omitted). Defendant argues that the trial court failed to properly apply the lawful excuse rule and failed to make sufficient -5findings regarding the willfulness of defendant s violations. Defendant suggests that the trial court failed to consider his alcohol dependency defendant s argument, disputed and mental violations as the were defendant illness willful. admitted willfulness of in We his them. determining reject violations Instead, he whether defendant s and never brought his alcohol dependency and mental illness to the court s attention in an effort to have his active sentence reduced or his probation terminated and to ensure that he received treatment while in prison. carrying his willfulness. discretion in Thus, defendant failed to make any attempt at burden of showing lawful excuse or lack of Accordingly, the trial court did not abuse its finding that defendant willfully violated the conditions of his probation. We further conclude that the findings of fact contained in the judgment were sufficient defendant s probation. to support the revocation of See State v. Lucas, 58 N.C. App. 141, 145, 292 S.E.2d 747, 750 ( The judge need not make extensive findings of fact, but they must be sufficient [to support the trial court s finding of fact that defendant willfully and without lawful excuse violated his probation] in light of the evidence presented. ), disc. review denied, 306 N.C. 390, 293 -6S.E.2d 593 (1982). Accordingly, we affirm the judgment of the trial court. AFFIRMED. Chief Judge MARTIN and Judge HUNTER, JR. concur. Report per Rule 30(e).

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