Opinion
No. COA10-1429
Filed 21 June 2011 This case not for publication
Appeal by defendant from judgment entered 24 May 2010 by Judge Henry W. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 30 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General Derek L. Hunter, for the State. Ryan McKaig, for defendant-appellant.
Durham County No. 07 CRS 40815.
The trial court made adequate findings of fact to support its judgment revoking defendant's probation. Where defendant failed to challenge the validity of a condition of probation at the revocation hearing, it may not be contested on appeal. This matter is remanded to the Superior Court of Durham County for correction of clerical error.
I. Factual and Procedural Background
On 15 June 2007, Shalandra Baines (defendant) pled guilty to robbery with a dangerous weapon. The trial court sentenced defendant to a minimum term of 46 months and a maximum term of 65 months imprisonment. The trial court found extraordinary mitigating factors, suspended the sentence, and placed defendant on supervised probation for 36 months. On 15 July 2009, the trial court modified probation based upon violations of the conditions of probation. On 7 April 2010, defendant's probation officer filed another probation violation report alleging that defendant: (1) failed to complete 50 hours of community service; (2) failed to keep an appointment with the probation officer on 18 February 2010; (3) failed to pay court indebtedness, having paid only $15.00 toward a total amount owed of $465.50; and (4) failed to pay monthly probation supervision fee, having paid only $85.00 toward the fee and having last paid on 5 February 2009.
At the probation violation hearing on 24 May 2010, defendant contested the violations. The trial court found that defendant willfully violated the terms of her probation and activated defendant's sentence of 46-65 months.
Defendant appeals.
II. Errors in Written Judgment of Revocation
Before addressing defendant's two substantive contentions, we note there are variances between the written judgment and the trial court's findings in open court. The written judgment prepared on a standard pre-printed form erroneously indicates that the trial court found defendant committed the violations stated "in paragraph(s) 1-4" in the violation report dated 7 April 2010, when the judgment should have indicated that the trial court found defendant only committed the violations in paragraphs 1 and 2 of the violation report. The written judgment also erroneously indicates that defendant waived a violation hearing and admitted she violated the conditions of probation when in fact the record shows that defendant denied the violations and that a contested hearing was conducted.
A clerical error has been defined by this Court as "[a]n error resulting from a minor mistake or inadvertence, [especially] in writing or copying something on the record, and not from judicial reasoning or determination." State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quotation omitted). Examples of a clerical error include inadvertent checking of the wrong box, referring to a wrong charge, erroneously stating the plea agreement, or stating the wrong offense on a judgment form. Id. We recently found a clerical error in a judgment revoking probation and activating a sentence which stated the defendant committed the violations alleged in a violation report dated 20 October 2008 when the report was actually dated 30 September 2008 and the hearing was scheduled for 20 October 2008. State v. Kerrin, ___ N.C. App. ___, ___, 703 S.E.2d 816, 821 (2011). In the case at bar, comparison of the written judgment to what actually transpired in court invites a conclusion that the person who completed the judgment form for the judge's signature inadvertently entered the wrong information and checked the wrong box. "When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record `speak the truth.'" State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (quotations omitted). We therefore remand this case to the Superior Court of Durham County for correction of these errors.
III. Findings of Fact Supporting Revocation
In her first argument, defendant contends that the trial court abused its discretion in revoking her probation, arguing that the trial court failed to make findings of fact demonstrating that it considered her evidence of lawful excuse. We disagree.
In order to revoke a defendant's probation, the trial court need only find 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). We have "consistently held that proceedings to revoke probation are informal in nature such that the trial court is not bound by the strict rules of evidence." State v. Terry, 149 N.C. App. 434, 437, 562 S.E.2d 537, 540 (2002) (citations omitted). In addition, "once the State has presented competent evidence establishing a defendant's failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms." Id. at 437-38, 562 S.E.2d at 540 (citation omitted). The trial court must allow defendant to "present relevant information" regarding alleged violations, and the trial court must make findings to support its decision. N.C. Gen. Stat. § 15A-1345(e) (2009). The trial court is not required to accept the defendant's evidence as true or to make specific findings of fact as to each of the defendant's allegations. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983). A conclusory finding that the defendant willfully violated certain named conditions of probation may suffice and may defeat a claim that the trial court did not consider the defendant's evidence. State v. Belcher, 173 N.C. App. 620, 624-25, 619 S.E.2d 567, 570 (2005).
In the instant case, the trial court found that defendant willfully violated the terms and conditions of her probation as set forth in numbered paragraphs 1 and 2 of the probation violation report. The trial court did not find that defendant violated the terms of her probation as set forth in paragraphs 3 and 4 of the probation violation report. We believe that by failing to find these two violations, the trial court did consider the defendant's evidence of excuse or lack of willfulness, i.e., that she had no income with which to comply with the monetary conditions of her probation. On the other hand, by finding defendant willfully committed the other two violations, the trial court determined defendant's evidence of excuse or lack of willfulness to be insufficient or not credible. This argument is without merit.
IV. Community Service Condition of Probation
In her second argument, defendant contends that the trial court erred by revoking her probation based upon the violation of a condition which was not a condition of her probation. We disagree.
In order to challenge the validity of a condition of probation on appeal, a party must have first challenged it at the probation revocation hearing. State v. Cooper, 304 N.C. 180, 183-84, 282 S.E.2d 436, 439 (1981) (stating a defendant does not have a "perpetual right to challenge a condition of probation" and may not challenge the condition for the first time on appeal). At no point in the proceeding below did defendant challenge the legitimacy of the condition requiring her to perform community service. Any challenge to this condition is waived, and we dismiss defendant's contention. State v. Tozzi, 84 N.C. App. 517, 520, 353 S.E.2d 250, 252 (1987).
AFFFIRMED IN PART; DISMISSED IN PART; AND REMANDED TO TRIAL COURT FOR CORRECTION OF CLERICAL ERROR.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).