State v. Noles , 12 N.C. App. 676 ( 1971 )

184 S.E.2d 409 (1971) 12 N.C. App. 676

STATE of North Carolina
v.
David J. NOLES.

No. 7127SC622.

Court of Appeals of North Carolina.

November 17, 1971.

Atty. Gen. Robert Morgan, Ralph Moody, Special Counsel, Raleigh, by Assoc. Atty., Edwin M. Speas, Jr., Raleigh, for the State.

Joseph B. Roberts, III, Mount Holly, for defendant appellant.

MORRIS, Judge.

Defendant's first two assignments of error attack the validity of the warrant upon which he was originally tried and the resulting judgment entered 13 July 1970 because there was no affirmative showing on the record that the defendant entered a plea of guilty understandingly and voluntarily. The defendant cites State v. Harris, 10 N.C.App. 553, 180 S.E.2d 29 (1971), as authority for his proposition, but the cases can be distinguished. Both cases involve appeals from an order activating suspended sentences and in both the contention was that guilty pleas not in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), were entered. In Harris the defendant directly attacked the validity of the later judgment which was the basis for the activation of his original suspended sentence. In the present case, however, the defendant tries to attack collaterally the validity of the original judgment, where his sentence was suspended, in an appeal from the revocation of that suspension. It is here that the similarity ends and the difference lies. When appealing from an order activating a suspended sentence, inquiries are permissible only to determine whether there is evidence to support a finding of a breach of the conditions of the suspension, or whether the condition which has been broken is invalid because it is unreasonable or is imposed for an unreasonable length of time. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970). Questioning the validity of the original judgment where sentence was suspended on appeal from an order activating the sentence is, we believe, an impermissible collateral attack. The proper procedure which provides the defendant adequate opportunity for adjudication of claimed deprivations of constitutional rights is under the Post-Conviction Hearing Act. G.S. § 15-217 et seq. See State v. White, 274 N.C. 220, 162 S.E.2d 473 (1968).

Even if a collateral attack on the original judgment were permissible, there is no showing on the record before us that the issue of the voluntariness of the guilty plea was raised at the revocation hearing.

By defendant's third and fourth assignments of error he contends that he "was not advised of his right to counsel at the hearing to activate his suspended sentence." It is clear from the record that the same attorney who represented the defendant at the 10 December 1970 trial was present at the revocation hearing in Superior Court on 21 May 1970, and that he made argument on the defendant's behalf. These assignments of error are overruled.

Defendant also urges on appeal that he "was not properly informed in writing of the solicitor's intention to pray the court to activate his suspended sentence as required under G.S. 15-200.1." The capias issued to defendant on 15 January 1971 constitutes substantial compliance with G.S. § 15-200.1, and we find no merit in this assignment of error. State v. Dawkins, 262 N.C. 298, 136 S.E.2d 632 (1964).

Finally, defendant assigns as error the entry of the judgments activating his suspended sentence, alleging that they were not supported by sufficient evidence. The evidence before the court was sufficient to support its conclusion that the defendant had violated the conditions of his suspended sentence and that the sentence should be activated.

Affirmed.

PARKER and VAUGHN, JJ., concur.