State v. Boggs

192 S.E.2d 29 (1972) 16 N.C. App. 403

STATE of North Carolina
v.
Michael Steven BOGGS.

No. 7215SC753.

Court of Appeals of North Carolina.

October 25, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. R. S. Weathers, for the State.

Donnell S. Kelly, Burlington, for defendant appellant.

MALLARD, Chief Judge.

The defendant's only assignment of error is that the trial judge committed error "in revoking defendant's probation for knowingly and wilfully failing to avoid persons or places of disreputable or harmful character."

A person convicted of crime is not given a right to probation by the United States Constitution nor by the North Carolina Constitution. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967). Probation or suspension of sentence comes as an act of grace to one convicted of crime, and the offender's rights in a proceeding to revoke his conditional liberty under probation are not coextensive with the constitutional rights of one on trial in a criminal prosecution. State v. Hewett, supra; Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L. Ed. 1566 (1935); Burns v. United States, 287 U.S. 216, 53 S. Ct. 154, 77 L. Ed. 266 (1932). It is the law in North Carolina that a condition of probation which is in violation of the defendant's constitutional rights, and, therefore, beyond the power of the court to impose, is per se unreasonable and subject to attack by defendant upon the State's subsequent motion to put the sentence into effect for violation of that condition. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970).

After revocation of the order suspending sentence and placing a defendant upon probation on specified conditions, a defendant may attack only the order of revocation, entered after notice duly served and a proper hearing thereon, upon the grounds that (1) there is no evidence to support a finding of the breach of the conditions of suspension or (2) that the condition broken is invalid because it is unreasonable or is imposed for an unreasonable length of time. State v. Cole, 241 N.C. 576, 86 S.E.2d 203 (1955); State v. Smith, 233 N.C. 68, 62 S.E.2d 495 (1950).

The defendant does not contend that there was insufficient evidence to support the factual findings made by the trial judge. Neither does he contend that the condition imposed was for an unreasonable length of time. However, he does contend that the condition he is accused of violating is invalid because it is unreasonable in that it is so vague that he could not reasonably understand the conduct proscribed.

This condition or requirement of the probation judgment, that he shall "[a]void persons or places of disreputable or harmful character", was specifically permitted by the statute, G.S. § 15-199(2). We hold that this requirement, as a condition of probation, was within the power of the court to impose. It was found as a fact that the defendant had been associating with persons who were using heroin and marijuana and who were convicted of the crime of conspiracy to bomb an occupied building. His contention that persons conspiring to bomb an occupied building, and using heroin and marijuana, were not persons who would be reasonably classified as persons of disreputable or harmful character is fatuous. Any individual should know, in the exercise of common reasoning in the interpretation and understanding of the meaning of the English language, that persons who use heroin and marijuana and who have been convicted of a conspiracy to bomb an occupied building are "persons of a disreputable or harmful character." See State v. Barrett, 243 N.C. 686, 91 S.E.2d 917 (1956); United States v. Ball, 358 F.2d 367 (4th Cir. 1966), cert. denied, 384 U.S. 971, 86 S. Ct. 1863, 16 L. Ed. 2d 683 and United States v. You, 159 F.2d 688 (2d Cir. 1947).

Under the facts found in this case, the trial judge did not err in holding that the defendant had wilfully violated a valid condition upon which the execution of the prison sentence was suspended.

Affirmed.

BROCK and BRITT, JJ., concur.