State v. Martin

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1218
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Edgecombe County
No. 13 CRS 324
HEIDI AMELIA MARTIN
Appeal by defendant from judgment entered 29 May 2013 by
Judge Milton F. Fitch, Jr., in Edgecombe County Superior Court.
Heard in the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Ann Stone, for the State.
William D. Spence for defendant-appellant.
ELMORE, Judge.
Heidi Amelia Martin (defendant) appeals from the judgment
entered upon the revocation of her probation. Defendant
contends that the trial court abused its discretion by revoking
her probation based on a positive drug test, rather than her
admitted probation violation. We affirm.
On 24 January 2013, defendant pled guilty to felony
possession of a schedule I controlled substance and was placed
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on 18 months of supervised probation. On 16 April 2013, a
probation officer filed a violation report alleging defendant
had absconded from probation by “‘willfully making the
supervisee’s whereabouts unknown to the supervising probation
officer’ in that, THE DEFENDANT HAS FAILED TO REPORT TO
PROBATION OFFICE ON 04/02/12 AT 9:00, 04/05/13 AT 8:00 AM AND
04/11/13 at 13:00. THE DEFANT [sic] HAS FAILED TO MAKE
WHEREABOUTS KNOWN, THEREFORE THE DEFENDANT HAS ABSCONDED
SUPERVISION.”
At the probation revocation hearing, defendant admitted to
willfully violating her probation. Under questioning by the
trial court, defendant denied using drugs. The trial court
found that defendant was in willful violation of her probation,
but elected not to revoke probation. Instead, the trial court
ordered drug treatment and required defendant to submit to a
drug test. When the drug test was positive for methamphetamine,
however, the trial court revoked defendant’s probation. In the
written judgment revoking probation, the trial court found that
defendant had violated probation as alleged in the violation
report.
Defendant did not give oral notice of appeal at the
revocation hearing, but wrote a letter to the trial court, dated
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the same day as the revocation hearing, in which she expressed
her desire to appeal. The trial court signed appellate entries.
At the outset, we address the sufficiency of defendant’s
pro se notice of appeal. Pursuant to N.C. Appellate Procedure
Rule 4, notice of appeal in a criminal case “shall designate . .
. the court to which appeal is taken[.]” N.C.R. App. P. 4.
After entry of judgment, the defendant must also serve copies
upon the State within fourteen days. Id.
Here, defendant acknowledges that she neglected to identify
the court to which she appealed or to provide proof of service
of the notice of appeal on the State. Defendant, therefore, has
filed a petition for writ of certiorari seeking appellate review
in the event her notice of appeal is deemed insufficient. In
light of Rule 4 above, we dismiss defendant’s appeal because she
failed to file proper notice of appeal in a timely fashion.
However, this Court may, in its discretion, issue a writ of
certiorari “when the right to prosecute an appeal has been lost
by failure to take timely action[.]” N.C.R. App. P. 21(a)(1).
Thus, in our discretion, we allow defendant’s petition.
In defendant’s sole argument on appeal, she contends that
the trial court abused its discretion by revoking her probation
based on a positive drug screen. We disagree.
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Currently, a trial court may “only revoke probation for a
violation of a condition of probation under G.S. 15A-1343(b)(1)
or G.S. 15A-1343(b)(3a), except as provided in G.S. 15A-
1344(d2).” N.C. Gen. Stat. § 15A-1344(a) (2013). Thus, the
grounds for probation revocation include when a defendant
absconds “by willfully avoiding supervision or by willfully
making the defendant’s whereabouts unknown to the supervising
probation officer, if the defendant is placed on supervised
probation.” N.C. Gen. Stat. § 15A-1343(b)(3a) (2013).
The trial court’s decision at a probation revocation
hearing “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.’” State v. Duncan,
270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967) (citations omitted).
“The evidence need [only] be such that reasonably satisfies the
trial judge in the exercise of his sound discretion that the
defendant has violated a valid condition on which the sentence
was suspended.” State v. Freeman, 47 N.C. App. 171, 175, 266
S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d
304 (1980). “The breach of any single valid condition upon
which the sentence was suspended will support an order
activating the sentence.” State v. Braswell, 283 N.C. 332, 337,
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196 S.E.2d 185, 188 (1973) (citation omitted). Further, a
defendant must demonstrate prejudice as a result of any
allegedly improper grounds found to revoke probation. State v.
Belcher, 173 N.C. App. 620, 625, 619 S.E.2d 567, 570 (2005).
In this case, the trial court properly revoked defendant’s
probation based on her admission that she willfully violated a
valid condition of probation. Defendant contends that the trial
court revoked her probation based on her positive drug screen
rather than on a violation of a valid condition of probation,
but the trial court made a specific written finding that it
revoked probation based on the allegation that defendant had
absconded from probation. Defendant admitted to the alleged
violation at the revocation hearing. Thus, the trial court
acted well within its discretion when it revoked defendant’s
probation, and we affirm the judgment revoking probation.
Affirmed.
Judges McGEE and DAVIS concur.
Report per Rule 30(e).