State v. Trent , 254 N.C. App. 809 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-839
Filed: 1 August 2017
Randolph County, Nos. 16 CRS 96-97
STATE OF NORTH CAROLINA
v.
CLARENCE JOSEPH TRENT
Appeal by defendant from judgments entered 6 June 2016 by Judge Michael
R. Morgan in Randolph County Superior Court. Heard in the Court of Appeals 22
February 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Carole
Biggers, for the State.
Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.
CALABRIA, Judge.
Clarence Joseph Trent (“defendant”) appeals from judgments revoking his
probation and activating his suspended sentences. After careful review, we affirm
the trial court’s judgments but remand for correction of clerical errors.
I. Background
On 10 March 2016 in Guilford County Superior Court, defendant pleaded
guilty to two counts of obtaining property by false pretenses (15 CRS 80278-79) and
two counts of conspiring to obtain property by false pretenses (15 CRS 81150-51). The
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Opinion of the Court
trial court consolidated 15 CRS 80278 and 15 CRS 81150 into one judgment, and 15
CRS 80279 and 15 CRS 81151 into another. The court sentenced defendant to serve
two consecutive terms of 8 to 19 months in the custody of the North Carolina Division
of Adult Correction. The trial court suspended both sentences, placed defendant on
36 months of supervised probation, and ordered him to serve a 30-day active term as
a condition of special probation in 15 CRS 80278. Defendant’s probation supervision
was transferred to Randolph County.
On 18 March 2016, defendant met with his new supervising officer (“Officer
Russell”) to review the conditions of his probation. Defendant told Officer Russell
that he and his wife (“Kim”) were in the process of being evicted from their residence
at 3550 Holly Ridge Drive in Trinity. Officer Russell instructed defendant to provide
an update whenever his address changed. When defendant next met with Officer
Russell on 12 April 2016, he provided his new address as 150 U.S. Highway 311, Lot
9 in Randleman. At the conclusion of the meeting, Officer Russell scheduled
defendant’s next appointment for 9 May 2016.
On 24 April 2016, Officer Russell made an unannounced visit to defendant’s
home in Randleman. Defendant was not home, and Kim was “very upset.” Kim told
Officer Russell that she had not seen defendant since the previous day, when he took
her car and bank card without permission and left the residence. Kim also told
Officer Russell that it was defendant’s “normal pattern . . . to go out and be gone for
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days on drugs.” Officer Russell informed Kim that if defendant did not come home
within a few days, she would consider him to be absconding. When Officer Russell
revisited the residence on 5 May 2016, Kim said that defendant still had not returned,
and she did not know where he was.
On 9 May 2016, Officer Russell filed reports in both cases alleging that
defendant had committed the following willful violations of his probation1:
1. Regular Condition of Probation: “Not to abscond, by
willfully avoiding supervision or by willfully making the
supervisee’s whereabouts unknown to the supervising
probation officer” in that,
THE DEFENDANT LEFT HIS RESIDENCE AT 150 US
HWY 311, LOT 9, RANDLEMAN ON OR ABOUT
04/23/2016, AFTER TAKING HIS WIFE’S CAR AND
BANK CARD AND HAS FAILED TO RETURN TO THE
RESIDENCE SINCE THAT TIME. HIS WHEREABOUTS
ARE UNKNOWN.
2. Condition of Probation “ . . . obtain prior approval
from the officer for, and notify the officer of, any change in
address . . . ” in that
THE DEFENDANT HAS FAILED TO NOTIFY HIS
PROBATION OFFICER OF ANY CHANGE IN ADDRESS
AND DID NOT HAVE PERMISSION TO MOVE.
Defendant did not appear for his scheduled appointment with Officer Russell that
afternoon. On 10 May 2016, Officer Russell learned that defendant had been arrested
in Guilford County the previous day. Defendant was subsequently transferred to the
1Atthat time, case numbers 15 CRS 80278 and 15 CRS 81150 were renamed 16 CRS 96, and
case numbers 15 CRS 80279 and 15 CRS 81151 were renamed 16 CRS 97.
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Randolph County jail, where he remained in custody until his probation violation
hearing on 6 June 2016.
At the hearing, Officer Russell testified for the State and recommended that
the trial court revoke defendant’s probation. After the State presented evidence,
defendant testified that during Officer Russell’s unscheduled visits to his residence,
he was working in Raleigh on an eight-day painting job. According to defendant’s
testimony, Kim agreed to inform Officer Russell that he was away. However, when
defendant returned home on 6 or 7 May 2016, he discovered that Kim had been “lying”
to Officer Russell and “was trying to get [him] locked up” because she was having an
affair. During cross-examination by the State, defendant admitted that despite
knowing that Officer Russell had visited his residence while he was away, he did not
contact her at any time after he returned from Raleigh.
At the hearing’s conclusion, the trial court found that the State had proven
that defendant absconded from supervision, but not that he failed to notify Officer
Russell of a change to his address. Based on its finding that defendant willfully
absconded from supervision, the court revoked defendant’s probation and activated
both of his suspended sentences. Defendant appeals.
II. Analysis
On appeal, defendant contends the trial court erred in revoking his probation
based on its finding that he willfully absconded from supervision. We disagree.
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A. Standard of Review
A hearing to revoke a defendant’s probationary sentence
only requires 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. Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008) (citation and
quotation marks omitted). “[O]nce 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.” State v. Talbert, 221 N.C. App. 650, 652, 727 S.E.2d 908, 910-11
(2012) (citation and quotation marks omitted).
We review the trial court’s decision to revoke a defendant’s probation for abuse
of discretion. State v. Murchison, 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014).
“Abuse of discretion occurs when a ruling is manifestly unsupported by reason or is
so arbitrary that it could not have been the result of a reasoned decision.” Id.
(citation, quotation marks, and brackets omitted).
B. Probation Revocation
N.C. Gen. Stat. § 15A-1343(b) (2015) provides the regular conditions of
probation which “apply to each defendant placed on supervised probation unless the
presiding judge specifically exempts the defendant from one or more of the conditions
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in open court and in the judgment of the court.” E.g., N.C. Gen. Stat. §§ 15A-
1343(b)(2), (4), (7) (requiring a probationer to: “[r]emain within the jurisdiction of the
court unless granted written permission to leave”; “[s]atisfy child support and other
family obligations”; and “[r]emain gainfully and suitably employed or faithfully
pursue a course of study or of vocational training”).
Violations of these statutory conditions can have various consequences. See
N.C. Gen. Stat. § 15A-1344(a) (stating that “probation may be reduced, terminated,
continued, extended, modified, or revoked”). However, the trial court is only
authorized to revoke probation under circumstances where the defendant: (1)
commits a new criminal offense, in violation of N.C. Gen. Stat. § 15A-1343(b)(1); (2)
absconds “by willfully avoiding supervision or by willfully making the defendant’s
whereabouts unknown to the supervising probation officer,” in violation of N.C. Gen.
Stat. § 15A-1343(b)(3a); or (3) violates any condition of probation after previously
serving two periods of confinement in response to violations, pursuant to N.C. Gen.
Stat. § 15A-1344(d2). N.C. Gen. Stat. § 15A-1344(a). For all other violations, the
trial court may either modify the conditions of the defendant’s probation or impose a
90-day period of imprisonment pursuant to N.C. Gen. Stat. § 15A-1344(d2). Id.
In the instant case, the State alleged violations of N.C. Gen. Stat. §§ 15A-
1343(b)(3) and 15A-1343(b)(3a). See N.C. Gen. Stat. § 15A-1343(b)(3) (providing that
a defendant must, inter alia, “obtain prior approval from the [supervising] officer for,
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and notify the officer of, any change in address or employment”). At the hearing,
before delivering its ultimate findings, the trial court offered a recitation of the
evidence presented by both parties:
THE COURT: Upon reviewing my notes concerning the
evidence that has been received, I’m ready at this time to
address the two allegations that have been lodged against
the probationer. The first allegation as to probation
violation is that the defendant absconded his probation by
willfully avoiding supervision or by willfully making his
whereabouts unknown to the supervising probation officer
in that defendant left his residence at 150 U.S. Highway
311, Lot 9, Randleman, on or about 4-23-2016, that’s April
23, 2016, after taking his wife’s car and bank card and has
failed to return to the residence since that time. His
whereabouts are unknown.
The evidence of the State on that allegation is that, in
terms of what is salient at least for this determination, that
on March 18, 2016 the probationer reported for his first
visit with the probation officer. On April 16, 2016, he
reported again to the probation officer saying that he was
going to be moving to another address, and another
appointment was set for May 9th, 2016, which the
probationer did not keep.
Along the way on April 24, 2016 an unannounced visit was
made by the probation officer to the residence at which the
probationer was expected to be. Probation officer talked to
the wife. The probationer was not there. The wife was
upset because the probationer had, according to the wife,
taken her car and left. On May 5, 2016, a Thursday,
probation officer again went to the residence at which
probationer was supposed to be. Probationer was not
there. Probation officer talked to the wife and was told that
the probationer had not returned to the home. The
probation officer found that on May 10, 2016 that the
probationer was incarcerated.
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Opinion of the Court
On those pertinent issues the probationer has testified that
he needed money and his brother-in-law offered him some
work. The wife told the probationer to go ahead and go to
work and that she would tell the probation officer that the
probationer was at work. It’s the probationer’s
understanding that his wife was having an affair. He went
to his mother’s home for a couple days but did not contact
his probation officer to say where he was and that, if it
wasn’t for the domestic squabble between him and his wife
concerning a vehicle, that this whole probation violation
matter would not even be occurring.
I do find that the State by the appropriate standard of
evidence has proven the existence of the first allegation of
probation violation in that he failed to be at the residence
at the time that he was to be there. As a result, that has
been proven.
On the second allegation of probation violation the
allegation is that the defendant had failed to notify his
probation officer of any change in address and did not have
permission to move. The pertinent dates upon which the
probation officer has made that determination for the
probation violation report are the unannounced visits of
April 24, 2016 and May 5, 2016, a period of a couple of
weeks. The court does not find that a two-week absence is
sufficient at least in this case to equate to a change in
address or a move especially in light of the probationer’s
testimony that he still had items of value at the residence
including his clothing and pet or some animal dear to him.
So I do not find that allegation No. 2 has been proven by
the appropriate standard of evidence, but I do find that, as
to the absconding in allegation 1, that has been proven.
1. Standard of Proof
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Opinion of the Court
Defendant first argues that the trial court abused its discretion by making its
oral findings of fact without explicitly stating the legal standard of proof, as
demonstrated by the following statement:
THE COURT: I do find that the State by the appropriate
standard of evidence has proven the existence of the first
allegation of probation violation in that he failed to be at
the residence at the time that he was to be there. As a
result, that has been proven.
This Court has held that a trial court’s failure to state the standard of proof
underlying its findings may constitute reversible error where certain protected
interests are involved. See, e.g., State v. Phillips, 230 N.C. App. 382, 386, 750 S.E.2d
43, 46 (2013) (holding that “the trial court’s failure to indicate that he applied ‘beyond
a reasonable doubt’ as the standard of proof in finding facts” rendered the criminal
contempt order fatally deficient, because N.C. Gen. Stat. § 5A-15(f) specifically
instructs that “[t]he facts must be established beyond a reasonable doubt”), disc.
review improvidently allowed, 367 N.C. 715, 766 S.E.2d 340 (2014). However, we
have never held so in the context of a probation hearing, and we decline to do so now.
A probation revocation proceeding “is not a criminal prosecution and is often
regarded as informal or summary.” Murchison, 367 N.C. at 464, 758 S.E.2d at 358
(citation and quotation marks omitted). “The Supreme Court of the United States
has observed that revocation of probation ‘deprives an individual . . . only of the
conditional liberty’ dependent on the conditions of probation.” Id. at 463, 758 S.E.2d
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at 358 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 781, 36 L. Ed. 2d 656, 661 (1973),
superseded by statute, Parole Commission and Reorganization Act, Pub. L. No. 94-
233, 90 Stat. 228 (1976)). Furthermore, “the alleged violation of a valid condition of
probation need not be proven beyond a reasonable doubt.” Id. at 464, 758 S.E.2d at
358 (citation and quotation marks omitted). Rather, all that is required 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 . . .
.” Young, 190 N.C. App. at 459, 660 S.E.2d at 576.
Although the trial court failed to employ the best practice and explicitly state
the legal standard of proof, the totality of the court’s statements indicate that the
court was “reasonably satisfied,” in light of all of the evidence presented, that
defendant had willfully violated N.C. Gen. Stat. § 15A-1343(b)(3a), but not § 15A-
1343(b)(3). Id. Accordingly, we conclude that the trial court’s oral finding did not
constitute an abuse of discretion.
2. Absconding
Defendant next argues that the trial court’s finding that “he failed to be at the
residence at the time that he was to be there” does not support that he willfully
absconded from supervision. Specifically, defendant contends, “there was no evidence
presented that [he] was required to be at home during [Officer Russell’s] two
unscheduled visits.” However, the State was not required to present such evidence.
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Opinion of the Court
As a regular condition of probation, defendant consented to unannounced visits from
his supervising officer. See N.C. Gen. Stat. § 15A-1343(b)(3) (requiring a defendant
to “[r]eport as directed by the court or his probation officer to the officer at reasonable
times and places and in a reasonable manner, permit the officer to visit him at
reasonable times, answer all reasonable inquiries by the officer and obtain prior
approval from the officer for, and notify the officer of, any change in address or
employment” (emphasis added)).
Defendant is correct that his probation could not be revoked based on a
violation of this condition alone. See N.C. Gen. Stat. § 15A-1344(a). Nevertheless, in
relying on our decisions in State v. Johnson, __ N.C. App. __, 783 S.E.2d 21 (2016)
and State v. Williams, __ N.C. App. __, 776 S.E.2d 741 (2015), defendant overlooks
key facts that distinguish those cases from the instant case.
In State v. Johnson, the defendant told his probation officer that he would be
unable to attend their appointment the following morning because he did not have a
car or a ride. __ N.C. App. at __, 783 S.E.2d at 23. He asked whether they might
reschedule for later that day, but the officer declined his request. Id. After the
defendant failed to attend his appointment, the officer filed violation reports for
absconding, and the trial court subsequently revoked his probation. Id. On appeal,
we determined that the defendant’s “actions, while clearly a violation of N.C. Gen.
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Opinion of the Court
Stat. § 15A-1343(b)(3), . . . do not rise to ‘absconding supervision’ in violation of N.C.
Gen. Stat. § 15A-1343(b)(3a).” Id. at __, 783 S.E.2d at 25. We explained that
a defendant informing his probation officer he would not
attend an office visit the following day and then
subsequently failing to report for the visit, does not,
without more, violate N.C. Gen. Stat. § 15A-1343(b)(3a)
when these exact actions violate the explicit language of a
wholly separate regular condition of probation which does
not allow for revocation and activation of a suspended
sentence.
To hold otherwise would render portions of N.C. Gen. Stat.
§ 15A-1344(a) superfluous. Allowing actions which
explicitly violate a regular or special condition of probation
other than those found in N.C. Gen. Stat. § 15A-1343(b)(1)
or N.C. Gen. Stat. § 15A-1343(b)(3a) to also serve, without
the State showing more, as a violation of N.C. Gen. Stat. §
15A-1343(b)(1) or N.C. Gen. Stat. § 15A-1343(b)(3a) would
result in revocation of probation without following the
mechanism the General Assembly expressly provided in
N.C. Gen. Stat. § 15A-1344(d2).
Id. at __, 783 S.E.2d at 26 (internal citations omitted). Furthermore, because the
defendant had also been ordered to submit to house arrest with electronic monitoring
as a special condition of probation, id. at __, 783 S.E.2d at 22, his supervising officer
“was able to monitor and keep continuous track of [his] locations and movements
through the use of the electronic monitoring device [he] wore.” Id. at __, 783 S.E.2d
at 27. Therefore, the defendant’s whereabouts were never unknown to his probation
officer. Id.
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Opinion of the Court
Similarly, in State v. Williams, the probation officer alleged that the defendant
had violated seven conditions of his probation, including N.C. Gen. Stat. § 15A-
1343(b)(3a). __ N.C. App. at __, 776 S.E.2d at 742. At the violation hearing, the State
presented evidence that the defendant had missed multiple scheduled appointments
with his supervising officer; was traveling “back and forth from North Carolina to
New Jersey” without permission; and had “never really lived” at his reported address.
Id. The trial court found each violation alleged and revoked the defendant’s
probation. Id. On appeal, we explained that “[a]lthough the report alleged that [the
d]efendant’s actions constituted ‘absconding supervision,’ this wording cannot
convert violations of N.C. Gen. Stat. §§ 15A-1343(b)(2) and (3) into a violation of N.C.
Gen. Stat. § 15A-1343(b)(3a).” Id. at __, 776 S.E.2d at 745. Furthermore, the
probation officer had testified that she had several telephone conversations with the
defendant regarding his missed appointments and was even able to contact him
during his travels to New Jersey. Id. at __, 776 S.E.2d at 742. Because there was
insufficient evidence to support the trial court’s finding of willful absconding, we
reversed the judgment revoking the defendant’s probation. Id. at __, 776 S.E.2d at
746.
The instant case is distinguishable from Johnson and Williams for the simple,
but significant, fact that Officer Russell was never aware of defendant’s whereabouts
after he left Randleman on 23 April 2016. When defendant accepted an eight-day
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Opinion of the Court
painting job in Raleigh, he failed to notify Officer Russell of his employment
opportunity prior to traveling. As a result, Officer Russell was unaware that
defendant would not be in Randleman when she made her first unscheduled visit to
his residence on 24 April 2016. Upon her arrival, Officer Russell met defendant’s
wife, Kim, who was “very upset.” Kim told Officer Russell that she had not seen
defendant since the previous day, when he took her car and bank card without
permission and left the residence. These allegations prompted Officer Russell’s
second unscheduled visit less than two weeks later. When Officer Russell revisited
the residence on 5 May 2016, Kim said that defendant still had not returned, and she
did not know where he was. Consequently, on 9 May 2016, Officer Russell filed
violation reports.
Unlike the officer in Johnson, however, Officer Russell did not have the benefit
of tracking defendant’s movements via electronic monitoring device. Contra __ N.C.
App. at __, 783 S.E.2d at 27. Moreover, unlike in Williams, Officer Russell had
absolutely no means of contacting defendant during his unauthorized trip to Raleigh.
Contra __ N.C. App. at __, 776 S.E.2d at 742.
Defendant asserts that Officer Russell made a “premature” determination that
he absconded, because she “did not testify that she attempted to contact [defendant]
by telephone, by mail or by any other means . . . [or] that she contacted any relatives
or associates other than his wife listed in [his] file.” As previously explained, however,
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Opinion of the Court
once the State presented competent evidence establishing defendant’s failure to
comply with the terms of his probation, the burden was on defendant to demonstrate
through competent evidence his inability to comply with those terms. Talbert, 221
N.C. App. at 652, 727 S.E.2d at 910-11. Defendant was given ample opportunity to
do so at the hearing, but instead, he attempted to deflect the blame for his actions:
A. So basically it boils down to the fact that [Kim]’s a liar,
she’s a manipulator, she doesn’t get her way, and she’s
come down here on three different occasions before and
she’s filed 50B, she’s filed assault on a females, had me
locked up. As soon as the magistrate assigns me a bond, in
24, 48 hours she’s down here crying, “I’m sorry,” she gets
people over at Shell Bonding to come and get me out.
And so, basically, I’m thinking that she’s taking care of the
change of address with my probation officer. And I come to
find out when I get back that she’s been having an affair
and that I’m not allowed to be at that trailer park anymore.
And now I find out that she’s been in contact – my
probation officer’s been in contact with the disgruntled
wife, and the whole time the disgruntled wife’s been telling
her I did this and I did that. And my Maltese, Trixie, is
like my child. My dog is still at that trailer. Every stick of
clothes that I own is still at that trailer. Everything I own
is still at that trailer. I haven’t changed address. I haven’t
absconded. She’s listening to this vindictive and deceitful
individual who is telling me one thing and she’s going back
telling her another.
And what it boils down to is she was trying to get me locked
up so that she didn’t have to deal with the confrontation
when I found out . . . That’s what it boils down to. I haven’t
absconded. I’ve still – I still lived at that address I thought
until I come back and found out somebody else had took my
place.
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Opinion of the Court
Despite defendant’s accusation that Kim misinformed Officer Russell in his
absence, during cross-examination by the State, defendant admitted that he failed to
contact Officer Russell even after he returned from Raleigh:
Q. Okay. And when you found [out on May] the 6th or 7th
about [Officer Russell’s unscheduled visits], did you contact
your probation officer?
A. No, I didn’t. I didn’t have a phone. I didn’t have
anything. . . .
...
A. – to answer your question, no, I didn’t contact her
immediately. I wasn’t in any shape to do anything. I
went to my mother’s and I stayed in the bed for five
days. I couldn’t eat or anything so…
Q. So you had an opportunity to call her then but you just
didn’t, correct?
A. Yeah, but, I mean, I thought it was – I thought it was
already taken care of. And, I mean, I wasn’t –
...
Q. I’m sorry. But when your wife kicked you out of the
place you just said on the . . . 6th or the 7th of May you
were told to leave. Now, if you left that place, wouldn’t you
have contacted your probation officer then since you went
to your mother’s?
A. Well, because I was only going to my mother’s for a
couple days. I wasn’t – I wasn’t moving. I was giving her
a couple days to get over her little ole thing, and then as
usual she gets her – you know, her feather – she gets her
feathers ruffled and I go to jail for two days. In 48 hours
they set me a bond, she comes and bonds me out, and then
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Opinion of the Court
we continue the zoo as usual, I mean.
Q. So my point is you knew that you were getting kicked
out of that residence but you didn’t contact the probation
officer until you were arrested basically but you had
several days to do that, correct?
A. Yes, I guess you could look at it in that perspective, but
I was looking at it from the – from a homeowner and a
renter’s – renter’s rights perspective. And I still don’t
consider myself of being left there and moved as you’re
trying to allude to. I didn’t move from there. Everything I
own is still in that trailer.
Despite the fact that he did not have a phone, it was defendant’s responsibility
to keep his probation officer apprised of his whereabouts. During defendant’s
testimony, he never explained how he tried to borrow anyone else’s phone in order to
let Officer Russell know that he was working. Indeed, defendant admitted that he
made no attempt to contact Officer Russell. He never contacted her before he left
home, while he was in Raleigh, or after he returned to Randleman on 6 or 7 May
2016. Even after learning about Officer Russell’s unscheduled visits during his
travels, defendant still did not contact her to correct any allegedly inaccurate
information that Kim may have communicated. Instead, defendant claimed that he
went to stay at his mother’s house “for a couple days” until he was arrested in
Greensboro on 9 May 2016.
“Probation or suspension of sentence comes as an act of grace to one convicted
of, or pleading guilty to, a crime.” Murchison, 367 N.C. at 463, 758 S.E.2d at 358
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(citation and quotation marks omitted). According to the plea transcript, defendant
could have been sentenced to a maximum of 126 months’ imprisonment based on his
underlying offenses and prior record level. Although defendant received a favorable
plea arrangement with suspended sentences, as the trial court stated,
“[u]nfortunately, probation is not the priority he chose.”
We hold that there was sufficient competent evidence to establish defendant’s
willful violation of N.C. Gen. Stat. § 15A-1343(b)(3a), a valid condition of his
probation. Therefore, the trial court did not abuse its discretion in finding that
defendant willfully absconded from supervision, or in revoking his probation on that
basis. Young, 190 N.C. App. at 459, 660 S.E.2d at 576.
III. Clerical Errors
Although we affirm the revocation of defendant’s probation, we nevertheless
must remand to the trial court for correction of two clerical errors appearing within
the Findings section of the court’s judgments. First, the trial court failed to select
box 2a, which would have indicated that the court was “reasonably satisfied in its
discretion that the defendant violated” the absconding condition of probation, as the
court found at the hearing. Instead, the trial court selected box 2b, erroneously
indicating that defendant “waived a violation hearing and admitted that he . . .
violated each of the conditions of his . . . probation . . . .” Second, box 3a of the
judgments inaccurately suggest that the trial court found that defendant violated
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Opinion of the Court
both of the conditions alleged in the 9 May 2016 violation reports, rather than N.C.
Gen. Stat. § 15A-1343(b)(3a) alone.
However, these are clearly clerical errors. In the Conclusion and Order section
of the judgments, the trial court included the following additional findings, which
accurately reflect the court’s statements in open court:
DENIES VIOLT – STATE HAS PROVED DEF
ABSCONDED – STATE HAS NOT PROVED DEF
FAILED TO NOTIFY PO OF ADDRESS CHANGE –
PROBT REVOK – ACTV SENT – DEF GIVES NOTICE OF
APPEAL – BOND SET AT $75,000 SEC
“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) (citation and quotation marks omitted). Accordingly,
we affirm the trial court’s judgments revoking defendant’s probation and activating
his suspended sentences, but remand for the limited purpose of correcting these
clerical errors.
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERRORS.
Judges HUNTER, JR. and BERGER concur.
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