State v. Pettiford ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-136
No. COA21-348
Filed 1 March 2022
Person County, No. 20 CRS 36
STATE OF NORTH CAROLINA
v.
TYCOY PETTIFORD, Defendant.
Appeal by Defendant from judgment entered 31 August 2020 by Judge John
M. Dunlow in Person County Superior Court. Heard in the Court of Appeals 22
September 2021.
Attorney General Joshua H. Stein, by Assistant Attorney General Caden
William Hayes, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for Defendant-Appellant.
WOOD, Judge.
¶1 Tycoy Pettiford (“Defendant”) appeals from a judgment on August 31, 2020,
revoking his probation. After a careful review of the record and applicable law, we
affirm the judgment of the court.
I. Facts and Procedural Background
¶2 On June 2, 2020, Defendant entered an Alford plea to one count of assault with
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a deadly weapon with the intent to kill. The trial court sentenced Defendant to 25 to
42 months in prison and suspended the sentence for 30 months of supervised
probation. On June 11, 2020, Defendant’s probation officer, Officer Jim Lynch, filed
a Violation Report. Officer Lynch attested under oath that “Defendant has willfully
violated [his probation by] . . . committ[ing] the crime of . . . [misdemeanor] breaking
. . . [or] entering.”
¶3 The trial court held a probation violation hearing on August 31, 2020.
Defendant denied he had committed the criminal offense of misdemeanor breaking
or entering. The State and Defendant stipulated to the following: On June 8, 2020,
an officer responded to a breaking or entering call at an apartment complex. The
officer arrived to the complex and spoke to the complex’s manager, David Turner.
Turner stated one of his employees went to perform work on a vacant apartment
within the complex. Upon entering the apartment, the worker discovered a female
and a male in the back room. The male offender was a black male with dark hair and
wearing a dark shirt and jeans. After seeing the male and female, the worker quickly
exited the apartment. The female offender then walked out the front door, got into a
silver Chevy Cobalt, and left the scene. Furthermore, the female offender was later
identified as Daniah Richardson (“Richardson”).
¶4 Jason Howell, a detective with the Roxboro Police Department, testified for the
State. Detective Howell reported he “recovered several latent prints off the point of
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entry, point of exit window in the rear of the residence.” One of the fingerprints was
determined to be that of Defendant. Detective Howell spoke with the property
manager of the apartment and, based upon that conversation, formed the belief
Defendant did not have permission to be in the apartment. Defendant lived next door
to the apartment with his mother and was known to associate with Richardson.
¶5 Based upon the evidence presented, the trial court found Defendant violated
his probation by committing a new offense of misdemeanor breaking or entering and
activated Defendant’s suspended sentence on August 31, 2020. The day after the
probation hearing, the State voluntarily dismissed the misdemeanor breaking or
entering charge.
¶6 On September 9, 2020, Defendant filed a motion for appropriate relief asking
the trial court to set aside the revocation of his probation. The trial court entered an
order on September 28, 2020, denying Defendant’s motion for appropriate relief.
Defendant next filed an appeal to this Court wherein this Court granted Defendant’s
petition for writ of certiorari for the purpose of reviewing the August 31, 2020
judgment revoking Defendant’s probation and the September 28, 2020 order denying
Defendant’s motion for appropriate relief. In our order granting certiorari, we
remanded the case to the trial court to determine whether Defendant was entitled to
appointment of counsel, indigent status, release on bond pending appeal, and a copy
of the transcript at the State’s expense.
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¶7 On remand on April 12, 2021, the trial court found Defendant was indigent
and entitled to an appointment of counsel and denied Defendant’s motion to set bond
while the matter was on appeal. Defendant comes before this Court pursuant to an
order granting certiorari and now appeals the August 31, 2020 activation of his
suspended sentence, arguing that insufficient evidence existed to show he violated
his probation, or, in the alternative, the trial court abused its discretion by revoking
his probation.
II. Discussion
¶8 Defendant raises several issues on appeal; each will be addressed in turn.
A. Sufficient Evidence to Show Defendant Violated His Probation
¶9 Defendant first argues on appeal the State’s evidence was insufficient to show
he committed a new offense in violation of his probation. Prior to revoking a
defendant’s probation, the trial court must conduct a hearing to determine whether
to revoke or to extend the probation. N.C. Gen. Stat. § 15A-1345(e) (2021). The court
must make findings of fact to support its decision and make a summary record of the
probationary proceeding. Id. Our Supreme Court has firmly established, “[p]robation
or suspension of sentence comes as an act of grace to one convicted of, or pleading
guilty to, a crime.” State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)
(citation omitted). Thus, a defendant in a probation proceeding has “more limited
due process rights.” State v. Murchison, 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014)
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(brackets omitted) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 789, 93 S. Ct. 1756,
1763, 36 L. Ed. 2d 656, 666 (1973)). A probation proceeding is more informal than a
criminal prosecution and, accordingly, “the court is not bound by strict rules of
evidence, and the alleged violation of a valid condition of probation need not be proven
beyond a reasonable doubt.” Duncan, 270 N.C. at 245, 154 S.E.2d at 57 (citation
omitted).
¶ 10 Defendant attempts to persuade this Court to examine the sufficiency of the
evidence presented at the probationary hearing. The function of this Court when
reviewing the sufficiency of the evidence in a probation hearing is not to conduct a de
novo review of the evidence and thereby replace the trial court’s findings with our
own. Rather, it is the role of this court to determine if evidence existed so as to
reasonably satisfy the trial court judge that a violation of probation occurred. See
Duncan, 270 N.C. at 245, 154 S.E.2d at 57 (1967).
¶ 11 The findings of a trial court judge which are based on competent evidence are
required only to 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.”
Murchison, 367 N.C. at 464, 758 S.E.2d at 358 (quoting State v. Hewett, 270 N.C. 348,
353, 154 S.E.2d 476, 480 (1967)); see also State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d
148, 150 (1960). “Judicial discretion implies conscientious judgment . . . [i]t takes
account of the law and the particular circumstances of the case, and [is] ‘. . . directed
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by the reason and conscience of the judge to a just result.’ ” State v. Hewett, 270 N.C.
348, 353, 154 S.E.2d 476, 480 (quoting Langnes v. Green, 282 U.S. 531, 541, 51 S. Ct.
243, 247, 75 L. Ed. 520, 526 (1931)).
¶ 12 In this case, we only need to examine whether the evidence was such as to
reasonably satisfy the trial court judge that Defendant violated his probation by
committing the new offense of misdemeanor breaking or entering. A misdemeanor
breaking or entering under N.C. Gen. Stat. § 14-54(b) is the wrongful breaking or
entering into a building. N.C. Gen. Stat. § 14-54(b) (2021); State v. Young, 195 N.C.
App. 107, 112, 671 S.E.2d 372, 375 (2009). “A breaking or ent[ering] is wrongful when
it is without the consent of the owner or tenant or other claim of right.” Young, 195
N.C. App. at 112, 671 S.E.2d at 375.
¶ 13 Here, the trial court judge was presented with the following evidence. The
State and Defendant stipulated that when the apartment’s property manager arrived
at the apartment, a male and Richardson were in the back room. At the hearing, a
police officer testified Defendant was known to associate with Richardson “on a
routine basis.” The officer recovered several prints from the point of entry, a window
in the rear of the residence. One of the prints was identified as belonging to
Defendant. The police officer spoke with the apartment’s property manager, and
based on this discussion, formed the opinion that Defendant did not have permission
to be inside the apartment. Moreover, Defendant lived next door to the apartment.
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¶ 14 Examining the evidence presented at the probation hearing, we hold
competent evidence was presented to satisfy the trial court judge that Defendant
broke or entered into the apartment without permission from the property manager.
In other words, competent evidence exists that Defendant willfully violated his
probation by committing a new offense of misdemeanor breaking or entering.
¶ 15 We recognize that based on the evidence, the State likely could not have proven
Defendant committed the offense of misdemeanor breaking or entering in a criminal
prosecution wherein the burden of proof is beyond a reasonable doubt. However, this
was a probation hearing wherein the burden of proof is probable cause and wherein
the rules of evidence do not apply. Thus, we are compelled to hold competent evidence
existed so as to satisfy the trial court judge that Defendant had committed a new
criminal offense in violation of the conditions of his probation.
B. No Abuse of Discretion in Revoking Defendant’s Probation
¶ 16 Next, Defendant contends the trial court abused its discretion by revoking his
probation. When reviewing the decision of a trial court to revoke probation, we review
for abuse of discretion. Murchison, 367 N.C. at 464, 758 S.E.2d at 358. See Guffey,
253 N.C. at 45, 116 S.E.2d at 150.
¶ 17 An 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.’
” State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009) (quoting State v.
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Peterson, 361 N.C. 587, 602, 652 S.E.2d 216, 227 (2007)). Under N.C. Gen. Stat. §
15A-1344(a), a trial court may “reduce[], terminate[], continue[], extend[], modify[],
or revoke[]” a defendant’s probation when a defendant commits a criminal offense in
any jurisdiction. N.C. Gen. Stat. § 15A-1344(a) (2021). However, a trial court is “not
obligated to activate a defendant’s sentence” should a defendant be found to have
violated probation. State v. Arnold, 169 N.C. App. 438, 441, 610 S.E.2d 396, 398
(2005).
¶ 18 Per our analysis herein, competent evidence existed to support the trial court’s
finding Defendant violated his probation by committing the new offense of
misdemeanor breaking or entering. Thus, pursuant to N.C. Gen. Stat. § 15A-1344(a),
the trial court had the authority to revoke Defendant’s probation. We note that an
alternative, more fitting means of punishment may have been more appropriate for
Defendant due to his age and the circumstances surrounding the violation;
nonetheless, we hold the trial court’s decision to revoke Defendant’s probation and to
activate Defendant’s sentence was not so devoid of reason or so arbitrary as to be
considered an abuse of discretion.
III. Conclusion
¶ 19 Based on the analysis above, we are compelled to hold that the State presented
sufficient evidence that Defendant violated the terms of his probation and that the
trial court did not abuse its discretion by revoking Defendant’s probation.
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AFFIRMED.
Judges DILLON and COLLINS concur.