No. Coa05-1211 Fourteenth Judicial District

NO. COA05-1211 FOURTEENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

v. ) FROM DURHAM COUNTY

) Nos. 02-CRS-15306

CHARLES REGINALD BATTLE )

)

______)

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DEFENDANT-APPELLANT’S BRIEF

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i

INDEX

PAGE

TABLE OF AUTHORITIES ...... ii

QUESTIONS PRESENTED ...... 1

STATEMENT OF THE CASE ...... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 3

STATEMENT OF THE FACTS ...... 3

ARGUMENTS ...... 4

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REVOKING DEFENDANT’S PROBATION WHEN THERE WAS INSUFFICIENT EVIDENCE HE WILLFULLY AND WITHOUT LAWFUL EXCUSE VIOLATED CONDITIONS OF HIS PROBATION(ASSIGNMENT OF ERROR NO. 1,R.p.20) . . . 4

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO MAKE SUFFICIENT FINDINGS OF FACT SHOWING IT CONSIDERED DEFENDANT’S EVIDENCE THAT ANY VIOLATION OF HIS PROBATION ALLEGED WAS NOT WILLFUL(ASSIGNMENT OF ERROR NO.2, R.pp.20) 7

CONCLUSION ...... 10

CERTIFICATE OF SERVICE ...... 11

ii

CASES TABLE OF AUTHORITIES PAGE

State v. Crouch,74 N.C. App. 565,328 S.E.2d 833(1985) . .5

State v. Duncan, 270 N.C. 241,154 S.E.2d 53(1967) . . . .5

State v. Freeman,47 N.C. App. 171, 266 S.E.2d 723(1980) .4

State v. Hewett, 270 N.C. 348, 154 S.E.2d 476(1967) . . .4,7

State v. Langley, 3 N.C.App. 189,164 S.E.2d 529(1968) . .7

State v. Lucas, 58 N.C.App. 141,292 S.E.2d 747(1982) . . 7

State v. Sellars, 61 N.C.App. 558, 301 S.E.2d 105(1983) .8

State v. Tozzi,84 N.C. App. 517,353 S.E.2d 250(1987) . . 4

State v. Williamson, 61 N.C.App. 531, 301 S.E.2d 423(1983)8

STATUTES

N.C. Gen. Stat. 7A-27(b) ...... 3

N.C. Gen. Stat. 15A-1301 ...... 9

N.C. Gen. Stat. 15A-1345 ...... 7

NO. COA05-1211 FOURTEENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

v. ) FROM DURHAM COUNTY

) Nos. 02-CRS-15306

CHARLES REGINALD BATTLE )

)

______)

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN REVOKING DEFENDANT’S PROBATION WHEN THERE WAS INSUFFICIENT EVIDENCE HE WILLFULLY AND WITHOUT LAWFUL EXCUSE VIOLATED CONDITIONS OF HIS PROBATION?

II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO MAKE SUFFICIENT FINDINGS OF FACT SHOWING IT CONSIDERED DEFENDANT’S EVIDENCE THAT ANY VIOLATION OF HIS PROBATION ALLEGED WAS NOT WILLFUL?

STATEMENT OF THE CASE

On 22 November 2002 Defendant Charles Reginald Battle pled guilty to attaining property by false pretenses and to the status of being a habitual felon. The Honorable Orlando F. Hudson, Jr. sentenced Mr. Battle to a sentence of 101 months to 131 months, suspended for 36 months, with Mr. Battle being placed on supervised probation.

A probation violation report against Mr. Battle was filed on 31 January 2005. The Defendant’s case was called for hearing at the 5 May 2005 session of Criminal Superior Court for Durham County before the Honorable Orlando F. Hudson, Jr.. On or around 5 May 2005 the trial court found a violation of probation. The trial court entered the judgment on 5 May 2005, sentencing Defendant to an active sentence with the North Carolina Department of Corrections. The Defendant gave timely notice of appeal from the probation revocation in open court on 5 May 2005. The transcript was ordered on 11 May 2005 and was mailed to the parties on 11 July 2005.

The final record on appeal was filed with the North Carolina Court of Appeals on 14 September 2005 and docketed on 20 September 2005. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 26 September 2005.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

The ground for appellate review is a final judgment of superior court under N.C. Gen. Stat. 7A-27(b). A timely notice on appeal was given in open court by the Defendant on 5 May 2005.

STATEMENT OF THE FACTS

Charles Battle was on probation after pleading guilty to obtaining property by false pretenses and to the status of being a habitual felon. Judge Hudson gave him a suspended sentence after finding Extraordinary Mitigation Findings. Specifically, Judge Hudson found that Mr. Battle aided in the apprehension of another felon; he acknowledged wrongdoing to a law enforcement officer at an early stage of the criminal process; and he had entered or successfully completed a drug or alcohol treatment program and a workable treatment plan was available for him. (Rpp.15-18; 19)

The Probation violation report filed on 31 January 2005, listed only one alleged violation of probation by Mr. Battle, that he had not yet attended or resided in the TROSA program. At the hearing, Mr. Battle admitted that he had not reported to TROSA yet. He told the Judge that since he was placed on probation there was confusion on who his probation officer was and who he was to report to and if he was to report to them directly or to TROSA first. Mr. Battle indicated that he had been employed by IBM, and further indicated that he had no outstanding warrants against him besides the probation violation. He tried on numerous occasions to find out who his probation officer was, but the Durham County Probation Office could never tell him definitively. (Rpp.3-4; Tpp.3-6)

Mr. Battle told the Judge that he was ready to report to TROSA if the Judge gave him a second chance. The State requested that Mr. Battle’s sentence be activated immediately. The Judge recognized that there obviously was some problem with assigning Mr. Battle a probation officer, but he revoked Mr. Battle’s probation anyway. (Tp.6)

ARGUMENTS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REVOKING DEFENDANT’S PROBATION WHEN THERE WAS INSUFFICIENT EVIDENCE HE WILLFULLY AND WITHOUT LAWFUL EXCUSE VIOLATED CONDITIONS OF HIS PROBATION(ASSIGNMENT OF ERROR NO. 1,R.p.20).

To revoke probation the State must present evidence “to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended." State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). Any violation of a valid condition of probation is sufficient to revoke the defendant’s probation. State v. Freeman, 47 N.C. App. 171, 176, 266 S.E.2d 723, 725(1980). Proof beyond a reasonable doubt is not necessary. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The defendant has the burden of showing excuse or lack of willfulness; otherwise, evidence of failure to comply is sufficient to support a finding that the violation was willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985).

Although the decision to revoke probation is within the discretion of the trial judge, the judge may not act arbitrarily or unjustly. The trial judge must take into account the circumstances of the case to reach a just result. State v. Duncan, 270 N.C. 241, 154 S.E.2d 53(1967). On appeal, this Court’s standard of review is to review the trial court’s decision to revoke probation to see if the trial court abused his discretion in finding the probationer willfully, and without lawful excuse, violated the terms of his probation. Id.

There was only one alleged violation listed on the probation violation report. The report alleged that Mr. Battle had not reported to TROSA and was not being supervised by a probation officer. Though Mr. Battle admitted that he had not reported to TROSA and had not been supervised by a probation officer, he did not admit that the violations were willful, or without lawful excuse. On the other hand, the State failed to present any evidence beyond the Court file, and presented no evidence to refute Mr. Battle’s attempts to comply with the terms of probation. (Tpp.2-3)

Mr. Battle testified that upon being placed on probation he went numerous times to the probation office where he was told that his paperwork had not arrived yet, and they could not tell him who his probation officer was, to come back later. He testified that after the hearing where he was placed on probation he was unsure whether he was to report to his probation officer first, or TROSA, and he attempted numerous times to report to his probation officer but was given “the run around” by the probation office. He had a good job with IBM, which he lost because he was going back and forth to the probation office, trying to report. (Tpp.2-3;4-5)

Importantly, the State never presented any testimony to refute Mr. Battle’s testimony about his numerous trips to the probation office without success in an attempt to comply with the terms of his probation. Simply put, Mr. Battle presented sufficient evidence of lawful excuse as to why the terms of his probation were not complied with. He made numerous attempts to comply, but these attempts were frustrated by the probation office itself, and their inability to tell Mr. Battle which probation officer he was assigned to.

During the two years since he had been placed on probation, Mr. Battle had not obtained any additional warrants. He had been gainfully employed at IBM, and the uncontraverted evidence presented at the hearing showed he had made efforts to comply with the terms of his probation. Mr. Battle’s efforts and the frustration of those efforts by the probation office constituted a lawful excuse as to why the alleged violation occurred, and the revocation of his probation was therefore unjust, and should be reversed.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO MAKE SUFFICIENT FINDINGS OF FACT SHOWING IT CONSIDERED DEFENDANT’S EVIDENCE THAT ANY VIOLATION OF HIS PROBATION ALLEGED WAS NOT WILLFUL(ASSIGNMENT OF ERROR NO.2, R.pp.20).

Mr. Battle’s trial counsel admitted the probation violation, but then Mr. Battle provided uncontroverted testimony showing that this violation was not willful and therefore his probation should not have been revoked. The trial court did revoke his probation, and provided no findings of fact to indicate that he had heard and considered Mr. Battle’s evidence concerning the willfulness of the alleged violations, requiring reversal.

Again, the standard for review for this Court on a revocation hearing is abuse of discretion by the trial court. State v. Hewett, 270 N.C. 348, 356, 154 S.E.2d 476, 482 (1967).

N.C.G.S. 15A-1345(e) requires the court to make findings to support its decision to revoke probation. The order revoking probation must also state the terms of probation that were violated. State v. Langley, 3 N.C.App. 189, 192, 164 S.E.2d 529, 530 (1968). Although the findings of fact need not be extensive, they should be definite and not conclusory. State v. Lucas, 58 N.C.App. 141, 145, 292 S.E.2d 747, 750 (1982).

Though Mr. Battle’s trial counsel indicated that he admitted the violations in the report, Mr. Battle presented testimony to the trial court indicating that these violations were not willful. The trial court was required to make findings clearly showing that it has considered and evaluated this evidence. State v. Sellars, 61 N.C.App. 558, 561, 301 S.E.2d 105, 106-7 (1983). In the present case, the written order does not even acknowledge that Mr. Battle requested a hearing, much less present findings of fact sufficient to show that the trial court considered his evidence concerning the willfulness of the violations.

North Carolina Courts have recognized that Constitutional Due Process imposes the following requirements for revocation of a suspended sentence:

The minimum requirements of due process in a final probation revocation hearing in the Trial Division of the General Courts of Justice shall include these procedures:

(1) a written notice of the conditions allegedly violated;

(2) a court hearing on the violation(s) including:

(a) a disclosure of the evidence against him, or,

(b) a waiver of the presentation of the State’s evidence by an in-court admission of the willful or without lawful excuse violation as contained in the written notice (or report) of violation, (c) an opportunity to be heard in person and to present witnesses and evidence,

(d) the right to cross-examine adverse witnesses;

(3) a written judgment by the judge which shall contain:

(a) findings of fact as to the evidence relied on,

(b) reasons for revoking probation. (emphasis added)

State v. Williamson, 61 N.C.App. 531, 533, 534, 301 S.E.2d 423, 425 (1983)

N.C. Gen. Stat. § 15A-1301 provides that any order of commitment must be in writing: “when a judicial officer orders that a defendant be imprisoned, he must issue an appropriate written commitment order.” N.C. Gen. Stat. § 15A-1301. A judgment revoking a suspended sentence is a commitment order.

In our case, the trial court made no indication either in open court or in his written order that he had considered Mr. Battle’s evidence regarding willfulness of the violations. The Judge also seemed to not even exercise his discretion in considering Mr. Battle’s evidence of lack of willfulness. After Mr. Battle had testified as to his frustration at coming over to the probation office time after time only to be told his paperwork was not there and they did not know who was supervising him, he indicated that he would immediately report to the TROSA program if given the chance. The following exchange then occurred:

THE COURT: He’s not going to agree to that, because he already said you went two years without supervision.

THE DEFENDANT: But I wasn’t out there obtaining no additional warrant.

THE COURT: That may be true. I don’t think that’s what he’s saying. I think he’s saying you needed to be on probation, being supervised, and you weren’t there doing it.

(Tp.6)

Clearly, the “he” the trial court was referring to was the district attorney who had requested that Mr. Battle’s probation be revoked. It was not up to the District Attorney to agree whether or not Mr. Battle’s probation was revoked. The trial court is charged with considering the evidence of whether or not there has been a violation, and also consider the Defendant’s evidence as to whether any violation was willful. The trial court is then charged with making detailed findings of fact to show he has considered all the evidence before him. As the trial court failed both in open court and in his written order to provide findings of fact to show that he considered Mr. Battle’s evidence of willfulness of these violations, this case should be reversed and remanded for a new hearing.

CONCLUSION

The Defendant respectfully requests that this Court reverse the trial court as argued above, and remand to the trial court for entry of an order re-instating probation, or in the alternative for a new hearing.

This the ____ day of October, 2005.

______

James N. Freeman, Jr.

Attorney for Defendant-Appellant

Charles Reginald Battle

Post Office Box 347

Elkin, North Carolina 28621

Telephone: (336) 835-4407

State Bar No.:18188

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the Defendant-Appellant’s Brief and Appeal Information Sheet by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s), and addresses stated below, which is/are the last known address(es) and by depositing said envelope and its contents in the United States Mail at Elkin, North Carolina.

Roy Cooper

Attorney General

Post Office Box 629

Raleigh, NC 27602-0629

This the ___ day of October, 2005.

______

James N. Freeman, Jr.

Post Office Box 347

Elkin, North Carolina 28621

State Bar No. 18188

Telephone: (336) 835-4407