Opinion
No. COA10-1061
Filed 15 March 2011 This case not for publication
Appeal by Defendant from judgments entered 13 April 2010 by Judge Lindsay R. Davis, Jr. in Rockingham County Superior Court. Heard in the Court of Appeals 14 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State. Ryan McKaig for Defendant.
Rockingham County Nos. 08 CRS 52143-44.
Defendant Arnold Arnaz Johnson ("Johnson") pled guilty on 12 February 2009 in Rockingham County District Court to charges of resisting a public officer, having an open container of alcohol, driving while license revoked, and driving while impaired. The court sentenced Johnson to serve active prison terms of 91 days, 91 days, and 18 months, respectively, which terms were to run consecutively. These sentences were suspended and the court placed Johnson on supervised probation for a period of 12 months.
On 3 December 2009, Johnson's probation officer filed probation violation reports, alleging the following violations of the conditions of Johnson's probation: (1) violation of the special condition that he not use, possess, or control any illegal drug or controlled substance unless prescribed by a licensed physician in that on 23 March 2009 and 6 August 2009, Johnson tested positive for marijuana; (2) violation of the special condition that he complete 72 hours of community service in that he failed to complete any hours of service; (3) violation of the monetary condition that he pay court indebtedness in the amount of $2,961.00 at the rate of $300.00 per month beginning on 12 March 2009 in that he was in arrears in the amount of $2,961.00; (4) violation of the condition that he pay probation supervision fees each month in that he was in arrears in the amount of $300.00; (5) violation of the special condition that he complete counseling or treatment in that he failed to complete any treatment; and (6) violation of the regular condition that he commit no criminal offense in that on 3 December 2009, Johnson was convicted of possession of marijuana and habitual impaired driving for offenses occurring on 16 May 2009.
On 9 February 2010, the Rockingham County District Court found that Johnson willfully and without lawful excuse committed the violations. The district court revoked probation and ordered activation of the suspended sentences. Johnson appealed to the superior court. After a de novo hearing, the Rockingham County Superior Court, the Honorable Lindsay R. Davis, Jr. presiding, also found that Johnson willfully and without lawful excuse committed each violation. Judge Davis found that each violation, standing alone, was sufficient to revoke probation and activate the sentences. Accordingly, Judge Davis revoked probation and activated the sentences on 13 April 2009. Johnson gave notice of appeal in open court.
Johnson's appointed counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, reh'g denied, 388 U.S. 924, 18 L. Ed. 2d 1377 (1967). Counsel states in the brief that, after "conscientious examination" of the court record, the transcript, and case and statutory law, he is "unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal." Counsel asks this Court to examine the record for possible prejudicial error counsel may have overlooked. Counsel calls this Court's attention to the potential issue as to whether Johnson presented a lawful excuse for violation of probation when he stated at the revocation hearing that he did not comply with the monetary payments, community service, and treatment conditions because he was awaiting the outcome of a pending appeal in a case unrelated to the cases at bar.
Counsel appended to the brief a copy of a letter he wrote to Johnson advising him that, in counsel's opinion, Johnson had "no meritorious issues for appeal." Counsel further advised Johnson that he could file his own written arguments directly with this Court. To assist Johnson, counsel provided Johnson with a copy of the transcript, the record on appeal and the brief counsel filed on Johnson's behalf. Counsel also provided Johnson with the mailing address of this Court. Johnson has filed in this Court a handwritten document entitled "Arguments" whereby he summarizes the plea and probation violation proceedings and related events. Johnson does not clearly argue, or cite any legal authority to show, that the superior court committed error during the probation revocation hearing or in its judgments revoking probation and activating the sentence.
We conclude counsel has fully complied with the requirements of Anders, as well as those of State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), and we conduct our own review of the record to determine whether prejudicial error requiring reversal occurred below.
Assuming, arguendo, that Johnson's reasons for not complying with the monetary and community service conditions of his probation could possibly constitute lawful excuse, we hold a different outcome could not have resulted.
Our courts have consistently held that "`probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime.'" State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)) (bracket omitted). "All that is required in a [probation revocation] hearing [] is that the evidence be such as 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 upon which the sentence was suspended." State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). Evidence of a defendant's failure to comply with a term or condition of probation is sufficient to support a finding that the violation was willful or without lawful excuse unless the defendant can successfully carry his 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). If the appellate court can determine that a violation of one single condition is supported by the record, then it need not consider further argument. See State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973) ("The breach of any single valid condition upon which the sentence was suspended will support an order activating the sentence.").
Here, the court expressly found that any single violation was sufficient to revoke Johnson's probation. At the probation revocation hearing Johnson admitted that he violated probation by testing positive for marijuana. Johnson conceded that he had been informed not to use any illegal drugs or substances while on probation. Johnson offered no excuse for the positive tests. This violation alone supports the trial court's judgments revoking Johnson's probation in each case.
After a careful review of the record, we are unable to find any possible error to support an appeal. Because the appeal is indeed wholly frivolous, we dismiss it.
DISMISSED.
Judge ERVIN and BEASLEY concur.
Report per Rule 30(e).