State v McIntyre
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-657 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. New Hanover County No. 08 CRS 53953 TEVIN D. MCINTYRE Appeal by defendant from judgments entered 7 February 2011 by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 28 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State. Michael J. Reece for defendant. ELMORE, Judge. Tevin court s D. McIntyre judgments (defendant) revoking suspended sentences. his appeals probation from and the superior activating his We affirm. On 29 April 2009, defendant entered a plea of guilty to the charges of conspiracy to commit robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. trial court imposed two consecutive suspended sentences The of -2twenty-five to thirty-nine months imprisonment and placed defendant on supervised probation for sixty months. On or about 8 November 2010, defendant s probation officer filed violation reports, which alleged the following violations: (1) defendant tested positive for THC on 14 August 2009 and 19 October 2010; (2) defendant was in arrears on his court fee obligation; (3) defendant was in arrears on his probation supervision fee obligation; (4) defendant was terminated from TASC as unsuccessful; and (5) defendant was charged with possession of a firearm by a felon on 10 June 2010, and the conditions of his probation prohibited defendant from possessing a firearm. The trial court conducted a probation revocation hearing on 7 February 2011. Defendant admitted that he willfully violated the conditions of his probation by testing positive for THC. Defendant also admitted that he was in arrears on his monetary obligations and that he had been terminated from TASC, but denied the willfulness of these violations. At the hearing, a detective testified that on 9 June 2010, police officers passenger. stopped a vehicle in which defendant was a The officers conducted a search of the vehicle and found two firearms. After receiving Miranda warnings, defendant -3told an officer (1) that one of the firearms belonged to him, (2) that he knew it worked because he shot it one time, and (3) that he knew he was Defendant objected to firearm and prohibited this defendant s illegal search. from possessing a firearm. violation on the ground that the confession were the products of an The State argued that police officers had a sufficient basis to search the vehicle and that the exclusionary rule does not apply to probation revocation proceedings. The trial court found that the evidence was sufficient to establish that defendant was in possession of the firearm. Thereafter, defendant requested that the trial court adopt the report defendant from report Sentencing to the Services, New which Hanover recommended County Day that Sentencing Center, where he would receive daily supervision and be eligible for certain classes. recommendation revoked. that and The State opposed Sentencing Services s requested that defendant s probation be The trial court declined defendant s request and found defendant had willfully and Nevertheless, by his The trial court, however, found that the remaining willful. THC of handgun. not for conditions by were positive the probation violations testing violated the possessing trial a court -4revoked defendant s probation and activated his sentences. that the Defendant now appeals. Defendant s first argument on appeal is trial court abused its discretion in revoking defendant s probation. Under N.C. Gen. Stat. ยง 15A-1344, a trial court has authority to reduce, terminate, continue, extend, modify, or revoke probation upon a finding that the defendant violated the conditions of probation. During a probation revocation hearing, the State bears the burden of presenting evidence to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition. State v. Lucas, 58 N.C. App. 141, 145, 292 S.E.2d 747, 750 (internal quotation omitted), disc. review denied, 306 N.C. 390, 293 S.E.2d 593 (1982). support a finding of a Such evidence is sufficient to violation unless the defendant successfully carries the burden of showing lawful excuse or lack of willfulness. 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 court committed a manifest abuse of discretion. State v. Sherrod, -5191 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 its discretion Sentencing Services. by ignoring the recommendations Defendant contends that the trial court should have considered the following factors: seventeen at the of time the original (1) defendant was offenses occurred, (2) defendant provided substantial assistance to the State, and (3) defendant had no record. Instead, defendant argues, that the trial court overemphasized the firearm violation. Defendant admitted testing positive firearm violation that for he willfully THC. was Even improper, violated assuming We disagree. probation arguendo defendant s that admission to by the one violation alone is sufficient, because [a]ny violation of a valid condition of probation is sufficient to revoke defendant s probation. 250, 253 evidence State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d (1987) of (citation lawful omitted). excuse or conditions of his probation. Defendant inability to provided comply with no the Thus, defendant s argument goes solely to the trial court s disposition, which is a matter of the trial court s discretion. court s decision to revoke We cannot say that the trial probation was manifestly without -6reason. Therefore, we hold that the trial court did not err in revoking defendant s probation. Next, defendant argues that the trial court made a clerical error in the violations judgments. at the The probation trial court revocation found only two hearing, but the judgments show five violations. Defendant argues that this case should trial be remanded discrepancy. an error to the court to correct the This Court has found that [a] clerical error is resulting from a minor mistake or inadvertence, especially in writing or copying something on the record, and not from judicial reasoning or determination. 198 N.C. App 82, 95, 678 S.E.2d 693, 702 State v. Lark, (2009) (internal quotations and citations omitted), disc. review denied, 363 N.C. 808, 692 S.E.2d 111 (2010). Where a clerical error is found, the case may be remanded to the trial court for the limited purpose of correcting the clerical errors. S.E.2d at 703. Id. at 95, 678 After reviewing the transcript, we agree that the error pointed out by defendant is indeed a clerical error. Accordingly, we remand the instant case to the trial court for the limited purpose of correcting the clerical errors in the judgment and commitment forms. Affirmed; remanded for correction of clerical error. -7Judges McGEE and McCULLOUGH concur. Report per Rule 30(e).
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