State v Parks
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-364 NORTH CAROLINA COURT OF APPEALS Filed: 18 October 2011 STATE OF NORTH CAROLINA v. Cabarrus County No. 08 CRS 7433 REDERI ORION PARKS Appeal by defendant from judgment entered 9 December 2010 by Judge Theodore S. Royster in Cabarrus County Superior Court. Heard in the Court of Appeals 19 September 2011. Attorney General Roy Cooper, by Assistant Attorney General Kenneth A. Sack, for the State. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant-appellant. THIGPEN, Judge. Defendant Rederi Orion Parks appeals from the entered following the revocation of his probation. judgment Defendant contends the trial court erred by revoking his probation in spite of his claim his probation violations were not willful. We affirm the trial court s judgment. -2On 15 December 2008, defendant pled guilty to second-degree kidnapping. In exchange for defendant s plea, the State agreed to dismiss several charges and that defendant would receive a suspended sentence and be placed on 36 months of probation. Judge Ripley Rand entered a judgment consistent with the terms of defendant s plea agreement. The terms of the judgment also required defendant to pay $1,026.50 in costs and fees. October violation 2010, Probation report Officer alleging that Daniel S. defendant Spicer had On 13 filed violated a the conditions of his probation by failing to report to a scheduled appointment on 27 September 2010, and by falling into arrears on his required payments. The case came on for hearing on 9 December 2010. Mr. Spicer testified that defendant had missed the 3 September 2010 appointment because he had been arrested earlier in the day for failure to pay child support. defendant had paid about Mr. Spicer further testified that $500.00 of his costs and fees, including payments in February, May, and July of 2010, but had fallen behind in his obligations. Defendant testified he was unable to pay the monetary obligations of his probation or his child support because he was unemployed. Defendant further claimed he had filled out forty job applications but was unable -3to find employment, and he was pursuing a social security disability claim based on a back ailment that prevented him from working. of After hearing defendant s testimony and the arguments counsel, violated the the activated the trial terms of court his suspended found defendant probation, sentence. had revoked willfully probation, Defendant gave and notice of appeal. In his two arguments on appeal, which we address together, defendant contends the trial court abused its discretion by concluding he willfully violated the terms of his probation. We disagree. Because probation is an act of grace by the State to one convicted of a crime[,] . . . an alleged violation of a probationary condition need not be proven beyond a reasonable doubt. 414 State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, (1999) (citation and internal quotation marks omitted). All that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation. State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998). -4 The trial judge has a duty, when the defendant does offer evidence of his ability or inability to make the money payments required [as a condition of probation], to make findings of fact which clearly show that he did consider and did evaluate the defendant s evidence. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983) (citation omitted). The trial judge, as the finder of the facts, is not required to accept defendant s evidence as true. State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). In this case, the evidence is unequivocal that defendant was in arrears on his monetary obligations, which constitutes two of the alleged probation violations. that [a]ny sufficient violation to revoke of a [a] valid It is well-settled condition defendant's of probation probation. State is v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The trial court heard defendant s testimony describing the reasons for disability. his inability to pay, including his physical Defendant s probation officer, however, testified that defendant had fallen behind in his financial obligations and never presented any documentation disability or inability to work. of his purported After hearing all of that evidence, as well as the arguments of counsel, the trial court -5found defendant had willfully violated the conditions of his probation. Although the [trial court] could have been more explicit in the findings by stating that [it] had considered and evaluated defendant s evidence of inability to make the required payments and found it insufficient to justify breach of the probation condition, we hold that his failure to do so does not constitute an abuse of discretion. 535, 301 S.E.2d at 426. Williamson, 61 N.C. App. at Accordingly, we affirm court s judgment revoking defendant s probation. AFFIRMED. Chief Judge MARTIN and Judge HUNTER, JR. concur. Report per Rule 30(e). the trial
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