{
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  "name": "STATE OF NORTH CAROLINA v. OLLIE JUNIOR ALSTON, Defendant",
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    "judges": [
      "Judges McGEE and HUNTER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. OLLIE JUNIOR ALSTON, Defendant"
    ],
    "opinions": [
      {
        "text": "JOHN, Judge.\nDefendant Ollie Junior Alston appeals judgments activating previously-suspended probationary sentences. We affirm the trial court.\nExamination of the record reveals the following: On 1 June 1998, defendant entered into a plea bargain arrangement (plea bargain) under which he pleaded guilty to each of four counts of taking indecent liberties with a child. Defendant\u2019s pleas were tendered pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970) (hereinafter \u201cAlford plea\u201d), and the transcript of plea form (plea transcript) reflected his understanding \u201cthat upon [his] \u2018Alford Plea\u2019 [he] w[ould] be treated as being guilty whether or not [he] admitted] that [he was] in fact guilty.\u201d Under defendant\u2019s plea bargain, four consecutive sentences of not less than sixteen nor more than twenty months imprisonment were suspended during a sixty-month term of supervised probation. In return, defendant agreed to comply with certain specified conditions of probation, including \u201cactive[] participation] in and successful^ completion] [of] a sexual offender treatment program\u201d (the program condition). Further, defendant\u2019s \u201c[fjailure to fully participate and successfully complete\u201d such program was stipulated to \u201cconstitute immediate grounds for revocation\u201d of his probation.\nOn 15 September 1998, a probation violation report was filed in each case, alleging defendant had \u201cfailed to complete the sex offender program [(the program)] at the Edgecombe-Nash Mental Health Center\u201d (the Center). During a violation hearing conducted 26 October 1998, Robert Bissette (Bissette), defendant\u2019s supervising probation officer, testified defendant had enrolled in the program at the Center, but that he \u201ccould not complete the program because he wouldn\u2019t admit to what he had done.\u201d The court also received into evidence a 13 August 1998 letter to the Adult Probation/Parole Department from Ted Simpson (Simpson), a licensed psychologist at the Center, stating that \u201cthe minimum entrance criterion for the [program wa]s that the offender accept some level of guilt and responsibility for his abuse.\u201d Simpson related that defendant had \u201csteadfastly and consistently maintained his innocence,\u201d and therefore \u201c[wa]s not appropriate for inclusion\u201d in the program. Defendant did not testify at the hearing, and his presentation was limited to tendering a copy of his plea transcript and arguing that, in light of his \u201cAlford plea,\u201d he was not required to admit guilt during the program.\nFollowing the hearing and\n[a]fter considering the record . . . together with the evidence presented by the parties and the statements made on behalf of the State and the defendant,\nthe trial court rendered the following factual findings in each case:\n1. The defendant is charged with having violated specific conditions of [his] probation as alleged in:\nX a. the Violation Report(s) on file herein, which is incorporated by reference.\n3. The condition(s) violated and the facts of each violation are as set forth . . .\nX a. in paragraph(s) 5 in the Violation Report or Notice dated 09-15-98 .\n5. 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\u2019s probation.\nX Each violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence.\nThe court thereupon ordered defendant\u2019s probation revoked and his suspended sentence activated. Defendant appeals.\nIn seeking to revoke a probationary sentence, the State must show that the defendant, without lawful excuse, willfully violated a condition of probation, State v. Seagraves, 266 N.C. 112, 113, 145 S.E.2d 327, 329 (1965) (per curiam); when this burden is met, the defendant must then \u201cpresent competent evidence of his inability to comply\u201d with such terms, State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). However, if the defendant fails to offer evidence of inability to comply,\nthen the evidence which establishes that defendant has failed to . . . [comply with] the terms of the judgment is sufficient within itself to justify a finding by the [trial court] that defendant\u2019s failure to comply was without lawful excuse.\nState v. Williamson, 61 N.C. App. 531, 534, 301 S.E.2d 423, 426 (1983) (citation omitted).\nOn appeal,\n\u201c \u2018[t]he findings of the [trial court], and [its] judgment upon them, are not reviewable ... unless there [wajs a. manifest abuse of. . . discretion.\u2019 \u201d\nState v. Green, 29 N.C. App. 574, 576, 225 S.E.2d 170, 172 (1976) (citations omitted).\nDefendant asserts that acceptance of his \u201cAlford plea\u201d by the trial court \u201cnecessarily contemplate[d]\u201d that he would be allowed to maintain factual innocence, even while fulfilling probationary conditions imposed by the court. Specifically, defendant contends that\nmaintaining his innocence . . . pursuant to his Alford plea[] should be considered a lawful excuse for not having completed the program.\nFurthermore, defendant argues:\nTo now hold that [he] has violated his probation because of his refusal to acknowledge his guilt is unjust and inequitable, and robs him of the benefit of the bargain he struck with the State by entering into the plea bargain arrangement.\nDefendant\u2019s argument that his \u201cAlford plea\u201d excuses his failure to participate in the program raises an issue of first impression in this jurisdiction. We therefore examine the principles espoused in Alford and the decisions of other courts that have addressed the issue.\nPreliminarily, however, we address briefly defendant\u2019s contention that the plea bargain between himself and the State was somehow compromised by inclusion in the program the requirement that he acknowledge having committed the charged offenses. Because the hearing transcript reveals defendant failed to raise this argument in the trial court, the question is not properly before us. See N.C. R. App. P. 9(a) (appellate \u201creview is solely upon the record on appeal and the verbatim transcript of proceedings\u201d), and State v. Hall, 134 N.C. App. 417, 424, 517 S.E.2d 907, 912 (1999) (citations omitted) (\u201cwhere theory argued on appeal not raised in trial court, \u2018the law does not permit parties to swap horses between courts in order to get a better mount [on appeal]\u2019 \u201d).\nEven if the issue were preserved for appellate review, moreover, we note the plea transcript indicates defendant\u2019s acquiescence in the program condition.\nIf [defendant] had wished to challenge that condition as inconsistent with his plea agreement, he could have moved to withdraw his plea prior to the imposition of sentence.\nPeople v. Birdsong, 958 P.2d 1124, 1129 (Colo. 1998) (citations omitted).\nFurther, the record reveals no motion for appropriate relief by defendant\nseeking to vacate his plea on the basis that he mistakenly and detrimentally relied upon plea agreement that differed from the terms and conditions of probation.\nId. Nor does the record reflect defendant sought to withdraw his plea at the probation revocation hearing. See id.\nPrior to leaving this issue, moreover, we observe that defendant\u2019s claim of a plea bargain violation by implication also includes the argument his plea may have been rendered involuntary by virtue of the sentencing court\u2019s failure to advise him he might be required to admit guilt in order to satisfy the program condition. However, the question of the voluntariness of defendant\u2019s plea likewise was not raised in the trial court nor has it been argued before this Court. See N.C. R. App. P. 9(a), and Hall, 134 N.C. App. at 424, 517 S.E.2d at 912. We therefore do not address the adequacy of the initial plea colloquy sub judice.\nAt the outset, it must be noted that, in view of defendant\u2019s failure to present evidence of inability to comply, see Crouch, 74 N.C. App. at 567, 328 S.E.2d at 835, the State\u2019s evidence at the hearing provided a sufficient basis upon which the trial court could reasonably have determined defendant willfully violated, without lawful excuse, the condition that he fully complete a sex offender program, see Williamson, 61 N.C. App. at 534, 310 S.E.2d at 425; see also State v. Hoggard, 180 N.C. 678, 679, 103 S.E. 891, 891 (1920) (\u201c \u2018When judgment is suspended in a criminal action upon good behavior, or other conditions, the proceedings to ascertain whether the terms have been complied with are addressed to the reasonable discretion of the judge of the court. . . . The findings of the judge, and his judgment upon them, are not reviewable upon appeal unless there is a manifest abuse of such discretion.\u2019 \u201d).\nNotwithstanding, we consider defendant\u2019s assertion that \u201cmaintaining his innocence ... pursuant to his Alford plea[] should be considered a lawful excuse\u201d for failure to comply with the program condition. Alford established that a defendant may enter a guilty plea while continuing to maintain his or her innocence. 400 U.S. at 37, 27 L. Ed. 2d at 171.\nIn the words of our Supreme Court,\nwhile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.\nId. Commentators have noted that a defendant may choose to enter an Alford plea for reasons other than admitting guilt; for example, a defendant may wish to \u201cplea bargain for a predictable, and often shorter, sentence or to protect others from the rigors, expense, or publicity of a trial.\u201d Alice J. Hinshaw, Comment, State v. Cameron: Making the Alford Plea an Effective Tool in Sex Offense Cases, 55 Mont. L. Rev. 281, 281 (1994).\nNonetheless, an \u201cAlford plea\u201d constitutes \u201ca guilty plea in the same way that a plea of nolo contendere or no contest is a guilty plea.\u201d State ex rel. Warren v. Schwarz, 579 N.W.2d 698, 706 (Wis. 1998); see Alford, 400 U.S. at 37, 27 L. Ed. 2d at 171 (no \u201cmaterial difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence\u201d); Birdsong, 958 P.2d at 1130 (\u201cAn Alford plea is to be treated as a guilty plea and a sentence may be imposed accordingly.\u201d).\nAs a consequence, in accepting an \u201cAlford plea\u201d as\na concession to [a] defendant, [the trial court accords that defendant] no implications or assurances as to future revocation proceedings.\nBirdsong, 958 P.2d at 1129. In other words, an \u201cAlford plea\u201d is in no way \u201cinfused with any special promises,\u201d Warren, 579 N.W.2d at 711, nor does acceptance thereof constitute \u201ca promise that a defendant will never have to admit his guilt,\u201d id.\nAs the Wisconsin Supreme Court stated in Warren:\n[a] defendant\u2019s protestations of innocence under an Alford plea extend only to the plea itself.\n. . . \u201cThere is nothing inherent in the nature of an Alford plea that gives a defendant any rights, or promises any limitations, with respect to the punishment imposed after the conviction.\u201d\n. . . Put simply, an Alford plea is not the saving grace for defendants who wish to maintain their complete innocence. Rather, it is a device that defendants may call upon to avoid the expense, stress and embarrassment of trial and to limit one\u2019s exposure to punishment [and it is] not the saving grace for defendants who wish to maintain their complete innocence.\nId. at 707 (citations omitted) (emphasis added); see generally Smith v. Com., 499 S.E.2d 11, 13 (Va. Ct. App. 1998) (quoting State v. Howry, 896 P.2d 1002, 1004 (Idaho Ct. App. 1995)) (\u201c \u2018[Although an Alford plea allows a defendant to plead guilty amid assertions of innocence, it does not require a court to accept those assertions . . . [but the court may] consider all relevant information regarding the crime, including [the] defendant\u2019s lack of remorse.\u2019 \u201d).\nUnder the plea bargain sub judice, defendant expressly acknowledged his understanding that he would be, and that he agreed to be, \u201ctreated as . . . guilty\u201d whether or not he admitted guilt. Further, defendant\u2019s plea bargain set forth specified probationary conditions, which he agreed to perform, including \u201cactive\u201d participation and \u201csuccessful!]\u201d completion of \u201ca sexual offender treatment program,\u201d as well as defendant\u2019s stipulation that his\u201c[f]ailure to fully participate and successfully complete\u201d such program would \u201cconstitute immediate grounds for revocation\u201d of his probation. Defendant not only agreed to such terms during the oral plea colloquy with the court, but personally, along with his counsel, signed the plea transcript incorporating the terms of the plea bargain.\nUpon defendant\u2019s assent to the foregoing terms and conditions, the trial court accepted the plea bargain, including defendant\u2019s \u201cAlford plea,\u201d and sentenced defendant accordingly. In doing so, however, the trial court conveyed \u201cno implications or assurances as to future revocation proceedings.\u201d Birdsong, 958 P.2d at 1129. Notwithstanding the absence of any assurances as to future proceedings and his specific acceptance of participation and successful completion of the program, defendant reiterates that \u201c[m]ain-taining his innocence . . . pursuant to his Alford plea, should be considered a lawful excuse for not having completed the program.\u201d We disagree.\nIt is well established that \u201cprobation or suspension of sentence is an act of grace\u201d and not a right. State v. Baines, 40 N.C. App. 545, 550, 253 S.E.2d 300, 303 (1979). Further, under the authorities discussed above, including Alford itself, defendant\u2019s protestations of innocence under his \u201cAlford plea\u201d did not extend to future proceedings. See Birdsong, 958 P.2d at 1129. Rather, his claim of innocence was applicable only to the plea itself, a plea of guilty, see Warren, 579 N.W.2d at 706, Birdsong, 958 P.2d at 1130, and Alford, 400 U.S. at 37, 27 L. Ed. 2d at 171, which bestowed upon defendant no rights, promises, or limitations with respect to the punishment imposed save as set out in the plea bargain and authorized the trial court to treat defendant as any other convicted sexual offender, see Warren, 579 N.W.2d at 707; see also generally State v. Goff, 509 S.E.2d 557, 565-66 (W. Va. 1998) (Workman, J., concurring) (\u201c \u2018The primary goal for managing sex offenders should be to protect society [especially children] from new sexual assaults . . . [and] one of the best methods for accomplishing th[is] goal . . . includes providing treatment for the sex offender.\u2019 \u201d).\nTo summarize, the trial court\u2019s determination that defendant had violated the probationary condition that he \u201cactively participate\u201d in and \u201csuccessfully complete\u201d a sexual offender treatment program in no way reflected a \u201cmanifest abuse of discretion.\u201d Green, 29 N.C. App. at 576, 225 S.E.2d at 172. First, defendant presented no competent \u201cevidence of his inability to comply,\u201d Crouch, 74 N.C. App. at 567, 328 S.E.2d at 835, and the evidence of his failure to pursue the program was thereby in any event \u201csufficient within itself,\u201d Williamson, 61 N.C. App. at 534, 310 S.E.2d at 425, to sustain the court\u2019s finding \u201cthat defendant\u2019s failure to comply was without lawful excuse,\u201d id. Second, as discussed above, defendant\u2019s reliance upon his \u201cAlford plea\u201d as lawful excuse for non-compliance with the program condition was unfounded.\nAffirmed.\nJudges McGEE and HUNTER concur.",
        "type": "majority",
        "author": "JOHN, Judge."
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    "attorneys": [
      "Michael F Easley, Attorney General, by J. Bruce McKinney, Assistant Attorney General, for the State.",
      "Etheridge, Sykes & Britt, L.L.P., by Raymond M. Sykes, Jr., for . defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. OLLIE JUNIOR ALSTON, Defendant\nNo. COA99-317\n(Filed 29 August 2000)\nProbation and Parole\u2014 condition of probation \u2014 sex offender treatment program \u2014 Alford plea\nThe trial court did not abuse its discretion in its determination that defendant violated the probationary condition that he actively participate in and successfully complete a sex offender treatment program, because: (1) defendant presented no competent evidence of his inability to comply, and the evidence of his failure to pursue the program was sufficient within itself to sustain the trial court\u2019s finding that defendant\u2019s failure to comply was without lawful excuse; and (2) defendant\u2019s reliance upon his Aford plea as a lawful excuse for non-compliance with the program condition requiring defendant to acknowledge having committed the charged offenses before inclusion in the program was unfounded.\nAppeal by defendant from judgments entered 26 October 1998 by Judge Frank R. Brown in Nash County Superior Court. Heard in the Court of Appeals 27 January 2000.\nMichael F Easley, Attorney General, by J. Bruce McKinney, Assistant Attorney General, for the State.\nEtheridge, Sykes & Britt, L.L.P., by Raymond M. Sykes, Jr., for . defendant-appellant."
  },
  "file_name": "0787-01",
  "first_page_order": 819,
  "last_page_order": 827
}
