State v. Duncan

154 S.E.2d 53 (1967) 270 N.C. 241

STATE
v.
Robert Lee DUNCAN.

No. 415.

Supreme Court of North Carolina.

May 3, 1967.

Atty. Gen. T. W. Bruton and Staff Atty. Theodore C. Brown, Jr., Raleigh, for the State.

Robert C. Hedrick, Lexington, for defendant appellant.

PARKER, Chief Justice.

Defendant by an undated written note notified the clerk of the Superior Court of Davidson County that he wanted to appeal to the Supreme Court of North Carolina. The clerk of the Superior Court of Davidson County submitted the writing to Shaw, Judge presiding over the courts of Davidson County, who made his entries of appeal and appointed a lawyer for him to perfect his appeal to the Supreme Court.

Defendant assigns as error that Judge McLaughlin entered an order revoking his probation and activating the sentence of imprisonment, heretofore suspended, without hearing any competent evidence relating to the violations of the conditions of probation as set forth in the probation judgment entered 13 November 1962.

On 25 October 1966 the assistant clerk of the Superior Court of Davidson County issued a capias instanter directed to the sheriff commanding him to take the body of defendant and have him to answer to the charge of a violation of his probation. Before the probation was revoked and the sentence of imprisonment put into effect, the probation officer submitted a report to the court in writing, properly verified, stating the grounds upon which probation was prayed to be revoked, pursuant to G.S. § 15-200.1. The order of Judge McLaughlin revoking probation and putting the sentence of imprisonment into immediate effect recites this at the beginning: "This cause coming on to be heard, and being heard * * *, the defendant being in court in person and being represented by counsel * * *."

The courts of this Nation are in conflict on the question that a convicted defendant, released on probation, is entitled to notice and a hearing on the issue of whether he has broken the conditions of probation, before the probation can be revoked. Annot. 29 A.L.R.2d, p. 1079 et seq., where the cases are assembled.

The courts of this State recognize the principle that a defendant on probation or a defendant under a suspended sentence, before any sentence of imprisonment is put into effect and activated, shall be given notice of the hearing and an opportunity to be heard. State v. Phillips, 185 N.C. 614, 115 S.E. 893; State v. Smith, 196 N.C. 438, 146 S.E. 73; State v. Pelley, 221 N.C. 487, 20 S.E.2d 850; State v. Love, 236 N.C. 344, 72 S.E.2d 737; State v. Davis, 243 N.C. 754, 92 S.E.2d 177; State v. Robinson, 248 N.C. 282, 103 S.E.2d 376; State v. Coffey, 255 N.C. 293, 121 S.E.2d 736; State v. Dawkins, 262 N.C. 298, 136 S.E.2d 632; State v. White, 264 N.C. 600, 142 S.E.2d 153.

Probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime. Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L. Ed. 1566. A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial. Upon a hearing of this character, 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. State v. Robinson, supra; State v. Morton, 252 N.C. 482, 114 S.E.2d 115; State v. Brown, 253 N.C. 195, 116 S.E.2d 349; Supplement to 1 Strong's N. C. Index, Criminal Law, § 136.

In State v. Brown, supra, the court held that in a hearing to determine whether defendant had violated the terms of a suspended sentence, the introduction in evidence of the minutes of a recorder's court to show that defendant had pleaded guilty to a criminal charge in that court will not be held prejudicial evidence, since rules of evidence are not so strictly enforced in a hearing by the judge as in a trial by jury. It has been generally held that a hearing of this character does not embrace the right to a trial by jury upon the issue of whether the terms of a suspended sentence or probation have been violated. Annot. 29 A.L.R. 2d 1109.

All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended. Judicial discretion implies conscientious judgment, not arbitrary or willful action. It takes account of the law and the particular circumstances of the case, and is "directed by the reason and conscience of the judge to a just result." Langnes v. Green, 282 U.S. 531, 541, 51 S. Ct. 243, 247, 75 L. Ed. 520, 526; State v. Robinson, supra; State v. Morton, supra; State v. Brown, supra.

Proceedings to revoke probation are often regarded as informal or summary. 21 Am.Jur.2d, Criminal Law, § 568. What is said in Shum v. Fogliani, Nev., 413 P.2d 495 (22 April 1966), is apposite, because with us probation or suspension of sentence is an act of grace and not of right:

"In the federal law, probation is a privilege granted by Congress. The source of the probationer's privilege is to be found in the Federal Probation Act. One convicted of crime is not given a right to probation by the federal constitution. Burns v. United States, 287 U.S. 216, 53 S. Ct. 154, 77 L. Ed. 266 (1932); Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L. Ed. 1566 (1935); Brown v. Warden, U. S. Penitentiary, supra [351 F.2d 564 (7th Cir. 1965)]; Welsh v. United States, 348 F.2d 885 (6th Cir. 1965); United States v. Huggins, 184 F.2d 866 (7th Cir. 1950); Gillespie v. Hunter, 159 F.2d 410 (10th Cir. 1947); Bennett v. United States, 158 F.2d 412 (8th Cir. 1946). Accordingly, the rights of an offender in a proceeding to revoke his conditional liberty under probation or parole are not coextensive with the federal constitutional rights of one accused in a criminal prosecution. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963); Richardson v. Markley, 339 F.2d 967 (7th Cir. 1965); Brown v. Warden, U. S. Penitentiary, supra."

Judge McLaughlin had before him the verified report of the State Probation Officer Greeson stating in detail alleged violations of the conditions of probation by defendant. We hold that that was competent evidence. Judge McLaughlin in his order revoking probation stated that the cause was heard. The record shows affirmatively from Judge McLaughlin's detailed findings of fact that he heard the cause. Defendant's first assignment of error is overruled.

Defendant assigns as error that Judge McLaughlin "erred in denying the defendant an opportunity to cross-examine the witnesses for the State." This assignment of error is overruled. This assignment of error implies that witnesses testified for the State, though nowhere in the record does it appear that witnesses testified for the State, except that it appears that Judge McLaughlin had before him the verified report of the State Probation Officer Greeson. However that may be, nowhere in the record does it appear that the defendant asked to cross-examine any witnesses for the State, and particularly the State Probation Officer Greeson, and was refused. The record imports verity and the Supreme Court is bound thereby. The Supreme Court can judicially know only what appears of record. There is a presumption in favor of regularity. Thus, where the matter complained of does not appear of record, appellant has failed to make irregularity manifest. 1 Strong's N. C. Index, Criminal Law, § 151. The record does not support defendant's assignment of error that he was denied an opportunity to cross-examine the witnesses for the State. The record does not show the defendant offered to testify and was refused, or offered any witnesses to testify, and the court refused to hear them. There is nothing in the record to support the contention that defendant was not given an opportunity to be heard.

When a sentence of imprisonment in a criminal case is suspended upon certain valid conditions expressed in the sentence, the prisoner has a right to rely upon such conditions, and so long as he complies therewith the suspension should stand. In such a case, defendant carries the keys to his freedom in his willingness to comply with the court's sentence. Defendant has not challenged any finding of fact of Judge McLaughlin. Defendant does not contend that any one of the conditions of probation is invalid. Judge McLaughlin's findings of fact are definite and clear. A careful review of the record shows that the findings of fact of the learned and conscientious judge were adequately supported by the verified report of the State probation officer and establish that the defendant has willfully and without just cause violated the above specified conditions of probation. There is nothing to show that the judge abused his discretion. Judge McLaughlin's order revoking probation and placing the sentence of imprisonment into immediate effect is

Affirmed.