State v. Martin

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1218 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Edgecombe County No. 13 CRS 324 HEIDI AMELIA MARTIN

Appeal by defendant from judgment entered 29 May 2013 by

Judge Milton F. Fitch, Jr., in Edgecombe County Superior Court.

Heard in the Court of Appeals 7 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State.

William D. Spence for defendant-appellant.

ELMORE, Judge.

Heidi Amelia Martin (defendant) appeals from the judgment

entered upon the revocation of her probation. Defendant

contends that the trial court abused its discretion by revoking

her probation based on a positive drug test, rather than her

admitted probation violation. We affirm.

On 24 January 2013, defendant pled guilty to felony

possession of a schedule I controlled substance and was placed -2- on 18 months of supervised probation. On 16 April 2013, a

probation officer filed a violation report alleging defendant

had absconded from probation by “‘willfully making the

supervisee’s whereabouts unknown to the supervising probation

officer’ in that, THE DEFENDANT HAS FAILED TO REPORT TO

PROBATION OFFICE ON 04/02/12 AT 9:00, 04/05/13 AT 8:00 AM AND

04/11/13 at 13:00. THE DEFANT [sic] HAS FAILED TO MAKE

WHEREABOUTS KNOWN, THEREFORE THE DEFENDANT HAS ABSCONDED

SUPERVISION.”

At the probation revocation hearing, defendant admitted to

willfully violating her probation. Under questioning by the

trial court, defendant denied using drugs. The trial court

found that defendant was in willful violation of her probation,

but elected not to revoke probation. Instead, the trial court

ordered drug treatment and required defendant to submit to a

drug test. When the drug test was positive for methamphetamine,

however, the trial court revoked defendant’s probation. In the

written judgment revoking probation, the trial court found that

defendant had violated probation as alleged in the violation

report.

Defendant did not give oral notice of appeal at the

revocation hearing, but wrote a letter to the trial court, dated -3- the same day as the revocation hearing, in which she expressed

her desire to appeal. The trial court signed appellate entries.

At the outset, we address the sufficiency of defendant’s

pro se notice of appeal. Pursuant to N.C. Appellate Procedure

Rule 4, notice of appeal in a criminal case “shall designate . .

. the court to which appeal is taken[.]” N.C.R. App. P. 4.

After entry of judgment, the defendant must also serve copies

upon the State within fourteen days. Id.

Here, defendant acknowledges that she neglected to identify

the court to which she appealed or to provide proof of service

of the notice of appeal on the State. Defendant, therefore, has

filed a petition for writ of certiorari seeking appellate review

in the event her notice of appeal is deemed insufficient. In

light of Rule 4 above, we dismiss defendant’s appeal because she

failed to file proper notice of appeal in a timely fashion.

However, this Court may, in its discretion, issue a writ of

certiorari “when the right to prosecute an appeal has been lost

by failure to take timely action[.]” N.C.R. App. P. 21(a)(1).

Thus, in our discretion, we allow defendant’s petition.

In defendant’s sole argument on appeal, she contends that

the trial court abused its discretion by revoking her probation

based on a positive drug screen. We disagree. -4- Currently, a trial 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).” N.C. Gen. Stat. § 15A-1344(a) (2013). Thus, the

grounds for probation revocation include when a defendant

absconds “by willfully avoiding supervision or by willfully

making the defendant’s whereabouts unknown to the supervising

probation officer, if the defendant is placed on supervised

probation.” N.C. Gen. Stat. § 15A-1343(b)(3a) (2013).

The trial court’s decision at a probation revocation

hearing “takes account of the law and the particular

circumstances of the case, and ‘is directed by the reason and

conscience of the judge to a just result.’” State v. Duncan,

270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967) (citations omitted).

“The evidence need [only] be such that reasonably satisfies the

trial judge in the exercise of his sound discretion that the

defendant has violated a valid condition on which the sentence

was suspended.” State v. Freeman, 47 N.C. App. 171, 175, 266

S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d

304 (1980). “The breach of any single valid condition upon

which the sentence was suspended will support an order

activating the sentence.” State v. Braswell, 283 N.C. 332, 337, -5- 196 S.E.2d 185, 188 (1973) (citation omitted). Further, a

defendant must demonstrate prejudice as a result of any

allegedly improper grounds found to revoke probation. State v.

Belcher, 173 N.C. App. 620, 625, 619 S.E.2d 567, 570 (2005).

In this case, the trial court properly revoked defendant’s

probation based on her admission that she willfully violated a

valid condition of probation. Defendant contends that the trial

court revoked her probation based on her positive drug screen

rather than on a violation of a valid condition of probation,

but the trial court made a specific written finding that it

revoked probation based on the allegation that defendant had

absconded from probation. Defendant admitted to the alleged

violation at the revocation hearing. Thus, the trial court

acted well within its discretion when it revoked defendant’s

probation, and we affirm the judgment revoking probation.

Affirmed.

Judges McGEE and DAVIS concur.

Report per Rule 30(e).