State v. Gill

• Court: Court of Appeals of North Carolina
• Decided: July 1, 2014
• Docket: 13-1256
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1256 NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

STATE OF NORTH CAROLINA

v. Buncombe County Nos. 12 CRS 50549-50 WILLIAM LEVI GILL

Appeal by Defendant from judgment entered 18 July 2013 by

Judge Richard L. Doughton in Buncombe County Superior Court.

Heard in the Court of Appeals 23 June 2014.

Attorney General Roy Cooper, by Assistant Attorney General Adam M. Shestak, for the State.

Wait Law, P.L.L.C., by Kerri L. Sigler, for Defendant.

STEPHENS, Judge.

Defendant William Levi Gill appeals from a judgment entered

upon revocation of probation and activation of his suspended

sentence. We affirm.

On 22 May 2012, Defendant pled guilty to possession with

intent to sell and deliver marijuana and maintaining a dwelling

used for keeping and selling a controlled substance. The trial -2- court sentenced Defendant to 6 to 17 months imprisonment,

suspended the sentence, and placed him on supervised probation

for 24 months.

On 5 March 2013, Defendant’s probation officer filed a

report alleging that Defendant had violated his probation by:

(1) failing to make required monetary payments, (2) failing to

pay his supervision fee, and (3) being “convicted of: reckless

driving to endanger – 12CR702190[.]” The trial court held a

probation violation hearing on 18 July 2013. Defendant, through

counsel, “denie[d] the willfulness of the money [sic] but

admit[ted] the new conviction.” When the court asked if

Defendant admitted the three alleged violations, Defendant’s

counsel stated that Defendant willfully violated, “3, but not 1

and 2.” The probation officer testified that Defendant had not

paid on his monetary obligations. Defendant testified that he

“got in a collision with another vehicle” and received a ticket

for reckless driving. Defendant informed the court, “I’ve done

everything for probation that I’ve been asked except for the

reckless driving.” By judgment entered 18 July 2013, the trial

court found Defendant willfully violated the terms and

conditions of his probation, revoked Defendant’s probation, and

activated Defendant’s original sentence. Defendant appeals. -3- Defendant contends the trial court erred when it revoked

his probation and activated his original sentence. We disagree.

At a probation violation hearing, the evidence need only

“reasonably satisfy the [trial court] in the exercise of [its]

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 upon which the sentence

was suspended.” State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d

476, 480 (1967). Defendant advances arguments that his failure

to comply with the monetary conditions of his probation was not

willful. However, those alleged violations could not serve as

grounds to revoke Defendant’s probation under the circumstances

presented here. Under the Justice Reinvestment Act (“JRA”),

probation is subject to revocation only when a probationer

“[c]ommit[s] [a] criminal offense[,]” “abscond[s] by willfully

avoiding supervision[,]” or has been subject to two prior

periods of “Confinement in Response to Violation.” See N.C.

Gen. Stat. § 15A-1344(a) (2013) (“The court may only revoke

probation for a violation of a condition of probation under G.S.

15A-1343(b)(1) or G.S. 15A-1343(b)(3a), except as provided in

G.S. 15A-1344(d2).”). Thus, we need not consider Defendant’s

assertions of error in the court’s findings of fact as to those -4- violations.

Regarding his reckless driving conviction, which did

subject him to revocation of probation under the JRA, see id.,

Defendant argues that no competent evidence supported the

finding of this willful violation. However, Defendant, through

counsel, twice admitted violating the conditions of his

probation by being convicted of reckless driving to endanger.

More importantly, Defendant personally admitted that he was

convicted of reckless driving and offered no excuse or lack of

willfulness for committing the criminal offense. This was

competent evidence to support the court’s finding that Defendant

willfully committed a criminal offense in violation of his

probation.

Defendant also argues that the trial court did not make

sufficient findings of fact to support its judgment revoking his

probation. We are not persuaded.

In its written judgment, using form AOC-CR-607, entitled

“JUDGMENT AND COMMITMENT UPON REVOCATION OF PROBATION — FELONY

(STRUCTURED SENTENCING) (For Revocation Hearings On Or After

Dec. 1, 2011),” the trial court found: (1) the violation report

was incorporated by reference; (2) a hearing was held and, “by

the evidence presented, the [c]ourt is reasonably satisfied in -5- its discretion that [D]efendant violated each of the conditions

of [D]efendant’s probation as set forth below[;]” (3) Defendant

violated paragraphs “1-3 of the Violation Report or Notice dated

3/5/2013[;]” and (4) the court had the authority to revoke

Defendant’s probation under the JRA “for the willful violation

of the condition(s) that he/she not commit any criminal offense,

G.S. 15A-1343 (b)(1), . . . as set out above.” These findings

are more than adequate to support revocation of Defendant’s

probation pursuant to sections 15A-1343(b)(1) and 15A-1344(a).

State v. Henderson, 179 N.C. App. 191, 197, 632 S.E.2d 818, 822

(2006) (holding findings of fact on a pre-printed form were

sufficient to support probation revocation). Accordingly, the

judgment revoking Defendant’s probation and activating his

sentence is

AFFIRMED.

Judges HUNTER, ROBERT C., and ERVIN concur.

Report per Rule 30(e).