State v. Sharpe , 259 N.C. App. 699 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-602
Filed: 15 May 2018
Wilson County, No. 14CRS52813, 15CRS180
STATE OF NORTH CAROLINA
v.
HOWARD A. SHARPE, Defendant.
Appeal by defendant from judgment entered on or about 5 December 2016 by
Judge Walter H. Godwin, Jr. in Superior Court, Wilson Court. Heard in the Court of
Appeals 11 January 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Jason R.
Rosser, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
STROUD, Judge.
Defendant appeals the revocation of his probation. We affirm and remand for
correction of a clerical error.
On 2 November 2016, while on probation for another offense, defendant was
convicted of possession of drug paraphernalia. Probation Officer Noah Kearney filled
out a probation violation report noting three violations: “arrears $800.00 in court
indebtedness[,]” “$720.00 in probation supervision fees[,]” and conviction of the 2
November 2016 offense. (Original in all caps.) Defendant appeared pro se before the
trial court and admitted that he had violated his probation as alleged in the probation
STATE V. SHARPE
Opinion of the Court
violation report, but explained to the trial court he had pled guilty in order to receive
a reduced sentence,
And as far as the new conviction, I know you can see it was
a really large drop in the case so I received 120 days on it.
So I had a decision to make, whether to go to trial and face
eight years, or take 120 days. It was pretty sure for me so
I just took that.1
In December of 2016, the trial court entered an order revoking defendant’s
probation. Defendant appeals.
Defendant’s only argument on appeal is that “the trial court abused its
discretion, and acted under a misapprehension of the law, when it revoked
defendant’s probation based on three alleged violations of which only one provided a
statutory basis for revocation.” (Original in all caps.)
A hearing to revoke a defendant’s probationary
sentence only requires that the evidence 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 or that the defendant has violated
without lawful excuse a valid condition upon which the
sentence was suspended. The judge’s finding of such a
violation, if supported by competent evidence, will not be
overturned absent a showing of manifest abuse of
discretion.
State v. Jones, 225 N.C. App. 181, 183, 736 S.E.2d 634, 636 (2013) (citation omitted).
1 Defendant does not raise the argument of lack of willfulness on appeal, nor is there a legal
basis for the argument. “Once convicted, whether as a result of a plea of guilty, nolo contendere, or of
not guilty (followed by trial), convictions stand on the same footing, unless there be a specific statute
creating a difference.” State v. Outlaw, 94 N.C. App. 491, 494, 380 S.E.2d 531, 533 (1989) (citation
omitted), aff'd, 326 N.C. 467, 390 S.E.2d 336 (1990).
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STATE V. SHARPE
Opinion of the Court
Defendant’s argument is based upon his contention that the trial court
mistakenly believed that each of the violations was a sufficient basis upon which to
revoke probation, although only one of the violations – commission of a crime while
on probation – is actually a proper basis for revocation of probation. See N.C. Gen.
Stat. §§ 153A-1343(b)(1), -1344(a) (2017). On the Judgment and Commitment Upon
Revocation of Probation – Felony, Form AOC-CR-607, Rev. 12/13, the trial court
checked the box for the second sentence of Finding 4:
Each of the conditions violated as set forth above is valid;
the defendant violated each condition willfully and without
valid excuse; and each violation occurred at a time prior to
the expiration or termination of the period of the
defendant’s probation.
☒ Each violation is, in and of itself, a sufficient basis upon
which this Court should revoke probation and activate the
suspended sentence.
(Emphasis added.)
Probation can be revoked under North Carolina General Statute § 15A-
1343(b)(1) if the defendant commits a “criminal offense in any jurisdiction” while on
probation. N.C. Gen. Stat. § 15A-1343(b)(1). North Carolina General Statute §
153A-1344(a) provides in pertinent part that “[t]he court may only revoke probation
for a violation of a condition of probation under G.S. 15A-1343(b)(1)[.]” N.C. Gen.
Stat. § 15A-1344(a). Because defendant committed a criminal offense while on
probation, the trial court could properly revoke his probation on that ground. See
N.C. Gen. Stat. §§ 153A-1343(b)(1), -1344(a); see also State v. Seay, 59 N.C. App. 667,
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STATE V. SHARPE
Opinion of the Court
670–71, 298 S.E.2d 53, 55 (1982) (“It is sufficient grounds to revoke the probation if
only one condition is broken.”).
Although defendant acknowledges that the trial court could have exercised its
discretion to revoke probation based only upon the criminal offense, he argues that
“the trial court’s decision to revoke probation based on two violations that could not
support an order revoking probation likely influenced the trial court’s decision to
revoke probation.” It is true that the trial court could not have revoked probation
based upon the other two violations of failure to pay court indebtedness and probation
supervision fees. See generally N.C. Gen. Stat. § 15A-1344(a). Defendant is also
correct that because the trial court checked the box for the second sentence of Finding
4, it found that “[e]ach violation is, in and of itself, a sufficient basis” for revocation
of probation. (Emphasis added.) Defendant argues:
Given that we do not know which alleged violation, or
combination thereof, was the basis for the trial court’s
revocation, and that only one of the three alleged
violation[s] provides a statutory basis for revocation, Mr.
Sharpe’s probation revocation sentence must be vacated
and remanded back to the trial court for a new hearing.
Contrary to defendant’s argument, we do know the trial court’s basis for the
revocation of probation, and it was the commission of a criminal offense. It is
apparent from the trial court’s rendition and the order as a whole that the trial court
did not act under a misapprehension of law that each violation alone could have been
sufficient to revoke defendant’s probation. But there is a clerical error in the order
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STATE V. SHARPE
Opinion of the Court
because the trial court checked the box in Finding 4, which was unnecessary based
upon the trial court’s rendition and Finding 5. Finding 5 states the basis for
revocation: “5. The Court may revoke defendant’s probation . . . (a) for the willful
violation of the condition(s) that he/she not commit any criminal offense, G.S. 15A-
1343(b)(1) . . . as set out above.” In addition, the trial court stated during rendition
of the ruling:
I find and conclude that the Defendant violated the
conditions as set forth in the violation report. Each of those
conditions is valid. You violated those conditions willfully,
without valid excuse, prior to the expiration of the
probationary period. One of the violations is in and of itself
sufficient to justify revocation and the activation of the
suspended sentence. Therefore, probation is revoked and
the sentence is activated.
(Emphasis added.)
The trial court recognized that “[o]ne of the violations is in and of itself
sufficient to justify revocation and the activation of the suspended sentence.”
That “one violation” was committing another criminal offense, as noted in Finding 5.
The trial court did not say “each of the violations” is sufficient to justify revocation.
This difference in wording is significant, since it demonstrates that the trial court
was basing the revocation on one of the violations, and the order notes in Finding 5
that the one violation justifying revocation was the commission of a criminal offense.
But since the second sentence of Finding 4 should not have been checked, we remand
for correction of this clerical error. See State v. Smith, 188 N.C. App. 842, 845, 656
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STATE V. SHARPE
Opinion of the Court
S.E.2d 695, 696 (2008) (“When, on appeal, a clerical error is discovered in the trial
court’s judgment or order, it is appropriate to remand the case to the trial court for
correction because of the importance that the record speak the truth.” (citation and
quotation marks omitted)).
AFFIRMED and REMANDED for correction of clerical error.
Judges DILLON and INMAN concur.
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