Opinion
No. COA08-1228.
Filed 19 May 2009.
Hoke County Nos. 06CRS1852, 1854.
Appeal by defendant from judgments entered 7 April 2008 by Judge James F. Ammons, Jr. in Hoke County Superior Court. Heard in the Court of Appeals 5 May 2009.
Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. Simoné Frier Alston, for defendant-appellant.
Defendant appeals from judgments entered on 7 April 2008, revoking his probation and activating two consecutive sentences of eight to ten months imprisonment. After careful review, we affirm.
On 22 August 2007, defendant pled guilty to four counts of uttering a forged instrument and was sentenced to two consecutive terms of eight to ten months imprisonment. The sentences were suspended and the defendant was placed on probation for a period of thirty-six months, which was conditioned upon defendant making restitution payments.
On 5 February 2008, probation violation reports were filed alleging that defendant had willfully violated a monetary condition of probation in that defendant was scheduled to pay $235.00 per month beginning 1 November 2007, he had paid nothing, his outstanding balance was $1,757.40, and his arrearages through January 2008 were $705.00. On 7 April 2008, the trial court conducted a probation revocation hearing, at which time defendant denied that his failure to comply with the monetary conditions of probation was willful. At the hearing, defendant's probation officer testified that he explained the terms and conditions of probation to defendant, including the requirement that he pay restitution. The probation officer further testified that defendant had never made a payment. He stated that defendant initially indicated "employment was hard, that he was doing work in the straw business but the straw business wasn't really working and that he had medical issues. He had a real bad back that needed to be — have surgery and he had no form of income at that time."
Defendant also testified at the hearing. Defendant testified that he was placed on probation in August 2007 and that he had not been employed since that time because of his back. Defendant testified that he has a slipped disc and when he stands up for a long period of time, his leg goes numb. Defendant stated that he intends to pay the monies owed, but he has been unable to pay because of his back. Defendant introduced a note from his physician indicating he had back pain since May 2007.
After the presentation of evidence and arguments, the trial court found defendant had willfully violated the terms and conditions of his probation and executed the previously suspended sentences. Defendant appeals. On appeal, defendant argues that the trial court abused its discretion in finding that he willfully violated the conditions of probation by failing to pay restitution.
This Court has held that it will not reverse the trial court's decision to revoke a defendant's probation absent a manifest abuse of discretion. State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000). An abuse of discretion occurs only "where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523, 126 S. Ct. 1773 (2006).
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). "In a probation revocation proceeding based upon defendant's failure to pay a fine or restitution which was a condition of his probation the burden is upon the defendant to `offer evidence of his inability to pay money according to the terms of the [probationary] judgment.'" State v. Jones, 78 N.C. App. 507, 509, 337 S.E.2d 195, 197 (1985) (citation omitted).
Here, defendant does not dispute his failure to pay restitution; he instead argues that he could not make restitution payments because he was unable to work due to his bad back. However, there is no evidence to support defendant's contention that he is unable to work due to his bad back. Although a note from defendant's physician indicates he has had back pain since May 2007, there is no indication that said pain prevents defendant from working. We conclude defendant has not met his burden of showing that he was unable to comply with the terms of his probation.
Defendant also argues that the trial court was required to consider alternate means of punishment before activating his suspended sentences.
"[A] convicted defendant ordered to pay a fine or costs may not be imprisoned for failure to comply if the delinquency in paying was `not attributable to a failure on his part to make a good faith effort to obtain the necessary funds for payment.'" State v. Johnson, 124 N.C. App. 462, 474-75, 478 S.E.2d 16, 24 (1996) (quoting N.C. Gen. Stat. § 15A-1364(b)(1988)), cert. denied, 345 N.C. 758, 485 S.E.2d 304 (1997).
Here, other than applying for disability benefits, there is no evidence defendant has made a good faith effort to obtain the necessary funds for payment.
Defendant next argues that despite offering evidence of his inability to pay restitution, the trial court failed to give any indication that it considered his evidence. Specifically, defendant contends that the trial court violated N.C. Gen. Stat. § 15A-1345(e), which requires the trial court to make findings in support of its decision to revoke probation. "When a defendant does put on evidence of his inability to pay, however, he is entitled to have his evidence considered and evaluated by the trial court[.]" Jones, 78 N.C. App. at 509, 337 S.E.2d at 197 (citations omitted). Further, "[t]he trial judge has a duty, when the defendant does offer evidence of his ability or inability to make the money payments required, 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).
After hearing the testimony and receiving evidence the following occurred:
[DEFENSE COUNSEL]: Your Honor, I would just say that it's not wilful in the fact that he has had back pain. He has not been working and collecting any money to pay towards probation. So I'd ask that you find that as not wilful.
THE COURT: All right. Find that it has been since August that he was placed on probation, since October that he was ordered to pay money, November since the money was due, and that in November he paid nothing; in December he paid nothing; January he paid nothing; February he paid nothing; March he paid nothing; and so far in April he's paid nothing. . . .
. . .
THE COURT: It's obvious to the Court that he could have made some type of payment during this time period; therefore, find that he's in wilful violation of the terms and conditions of his probation. . . .
We conclude that the trial court considered defendant's evidence and made the requisite findings. Accordingly, the judgment revoking defendant's probation and activating the suspended sentences is affirmed.
Affirmed.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).