{ "id": 8522382, "name": "STATE OF NORTH CAROLINA v. JOHNNIE LEE JONES", "name_abbreviation": "State v. Jones", "decision_date": "1985-12-17", "docket_number": "No. 8523SC733", "first_page": "507", "last_page": "510", "citations": [ { "type": "official", "cite": "78 N.C. App. 507" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "461 U.S. 660", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299177 ], "weight": 6, "year": 1983, "pin_cites": [ { "page": "672" }, { "page": "233" }, { "page": "2073" } ], "opinion_index": 0, "case_paths": [ "/us/461/0660-01" ] }, { "cite": "85 L.Ed. 2d 636", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6206587 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/0606-01" ] }, { "cite": "204 S.E. 2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "188" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555815 ], "year": 1974, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0316-01" ] }, { "cite": "259 S.E. 2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "808" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554408 ], "year": 1979, "pin_cites": [ { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0727-01" ] }, { "cite": "301 S.E. 2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "426" }, { "page": "426" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522247 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "534" }, { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0531-01" ] } ], "analysis": { "cardinality": 389, "char_count": 8374, "ocr_confidence": 0.788, "pagerank": { "raw": 1.0977364452051339e-07, "percentile": 0.5672848108132945 }, "sha256": "64c3e8e7c5697d807f06f6e8fd64acc5c0f53c5b8dfc24ee1240bcc7d94df785", "simhash": "1:af1ce8a6660f8fac", "word_count": 1362 }, "last_updated": "2023-07-14T22:39:04.225821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Martin concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHNNIE LEE JONES" ], "opinions": [ { "text": "COZORT, Judge.\nOn 18 November 1981 in the Superior Court of Carteret County, defendant pled guilty to felonious breaking or entering and felonious larceny, and he was sentenced to not less than five years nor more than seven years. The sentence of imprisonment was suspended and the defendant was placed on probation for a period of five years with certain standard conditions, plus the condition that defendant pay $76.00 in court costs and restitution in the amount of $1,700.00. Defendant was to pay the court costs and $30.00 on or before 23 November 1981 and $30.00 a month beginning on 5 December 1981 until paid in full. At the 10 October 1983 term of Carteret County Superior Court, however, defendant\u2019s probation was modified to require him to pay $300.00 on or before 1 November 1983 and to make $30.00 monthly payments beginning on 5 November 1983.\nOn 13 September 1984 defendant\u2019s probation officer submitted to the court a verified Violation Report. The report stated that defendant had violated the modified terms of probation in that \u201c[f]rom November 5, 1983 until September 5, 1984, the defendant should have paid $330.00, but ... he has paid only $90.00 and is currently $240.00 in arrears of his payments.\u201d\nDefendant\u2019s probation violation hearing was held before Judge Rousseau at the 17 September 1984 Criminal Session of Wilkes County Superior Court. Defendant waived his right to counsel in open court and signed a written waiver of right to assigned counsel.\nAt the revocation hearing the probation officer placed the Probation Judgment before the trial court and then summarized the contents of the verified Violation Report. The court inquired into the time of defendant\u2019s transfer to the Wilkes County probation officer and the reasons for defendant\u2019s move from Carteret County to Wilkes County. Then the following exchange took place:\nCOURT: Well, do you want to testify about your failure to pay this money?\nMr. JONES: I\u2019ve just been out of work, sir. If I just had some time to catch up the payments.\nCOURT: Anything else?\nMr. JONES: No, sir.\nCOURT: The Court finds that he willfully violated the terms of his probation and Orders the sentence into execution.\nA written Order Revoking Probation and a Judgment and Commitment Upon Revocation of Suspension of Sentence [hereinafter \u201cJudgment and Commitment\u201d] were entered on 17 September 1984.\nDefendant\u2019s only exception is to the statement by the trial court at the probation revocation hearing that \u201c[t]he Court finds that he willfully violated the terms of his probation and Orders the sentence into execution.\u201d Defendant has taken no exception to the entry of the Order Revoking Probation and the Judgment and Commitment.\nDefendant contends that the trial court erred \u201cin revoking defendant\u2019s probation for failure to timely pay the imposed fine and restitution when there was no evidence that the probationer was at fault in his failure to pay or that alternate means of punishment were inadequate.\u201d In support of this contention defendant argues that the trial court failed to make findings of fact which show that it (1) considered and evaluated defendant\u2019s evidence of his inability to pay and (2) considered alternate measures of punishment other than imprisonment. For the reasons stated below, we affirm.\nIn a probation revocation proceeding based upon defendant\u2019s failure to pay a fine or restitution which was a condition of his probation the burden is upon the defendant to \u201coffer evidence of his inability to pay money according to the terms of the [probationary] judgment.\u201d State v. Williamson, 61 N.C. App. 531, 534, 301 S.E. 2d 423, 426 (1983); see also G.S. 15A-1345(e) and 15A-1364(b). Here the only conceivable evidence offered by the defendant as to his inability to pay is his unsworn statement to the trial court that \u201cI\u2019ve just been out of work, sir.\u201d If defendant fails to offer evidence of his inability to pay money in accordance with the terms of the probationary judgment, \u201cthen the evidence which establishes that defendant has failed to make payments as required by the terms of the judgment is sufficient within itself to justify a finding by the judge that defendant\u2019s failure to comply was without lawful excuse.\u201d Id. When a defendant does put on evidence of his inability to pay, however, he is entitled to have his evidence considered and evaluated by the trial court, State v. Smith, 43 N.C. App. 727, 732, 259 S.E. 2d 805, 808 (1979), and the \u201ctrial judge has a duty ... to make findings of fact which clearly show that he did consider and did evaluate the defendant\u2019s evidence.\u201d State v. Williamson, 61 N.C. App. 531, 535, 301 S.E. 2d 423, 426 (1983).\nIn this case, considering the 17 September 1984 Order Revoking Probation and the Judgment and Commitment together, the trial court found as a fact \u201c[f]rom evidence presented\u201d that while on probation defendant \u201cwillfully and without lawful excuse violated the terms and conditions of the Probation Judgment\u201d by failing to make the payments as required. Assuming without deciding, that defendant\u2019s unsworn statement to the trial court that \u201cI\u2019ve just been out of work\u201d constituted presenting evidence of his inability to pay, the trial court\u2019s finding \u201c[f]rom evidence presented\u201d was sufficient to show that the trial court considered and evaluated defendant\u2019s evidence. See State v. Williamson, 61 N.C. App. 531, 301 S.E. 2d 423 (1983). Thus, unlike in State v. Young, 21 N.C. App. 316, 321, 204 S.E. 2d 185, 188 (1974), it is clear that the trial court did not proceed \u201cunder an erroneous assumption that the fact of failure to comply required revocation of probation\u201d and that the trial court \u201cconsidered defendant\u2019s evidence and found that defendant had offered no evidence worthy of belief to justify a finding of a legal excuse for failure to comply with the judgment.\u201d\nAs to defendant\u2019s second point, due process does not generally require a sentencing court to indicate that it has considered alternatives to incarceration before revoking probation. Black v. Romano, 471 U.S. ---, 85 L.Ed. 2d 636, 105 S.Ct. --- (1985). Here the trial court was not required to consider alternate means of punishment other than incarceration. While under Bearden v. Georgia, 461 U.S. 660, 76 L.Ed. 2d 221, 103 S.Ct. 2064 (1983), the trial court must inquire into the reasons for the defendant\u2019s failure to pay, it is not required to consider alternate means of punishment other than imprisonment unless and until it finds that the \u201cprobationer could not pay despite sufficient bona fide efforts to acquire the resources to do so.\u201d 461 U.S. at 672, 76 L.Ed. 2d at 233, 103 S.Ct. at 2073. Here the trial court inquired of the defendant his reasons for nonpayment and found from the evidence presented that defendant\u2019s failure to pay was \u201cwillfully and without lawful excuse.\u201d Thus, contrary to what defendant suggests, the trial court was not required to consider alternate means of punishment other than imprisonment.\nAffirmed.\nJudges Arnold and Martin concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg by Associate Attorney Kathryn L. Jones for the State.", "Dennis R. Joyce for the defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNIE LEE JONES\nNo. 8523SC733\n(Filed 17 December 1985)\n1. Criminal Law \u00a7 143.10\u2014 revocation of probation \u2014 failure to make required payments \u2014 sufficiency of evidence\nThe trial court\u2019s finding as a fact \u201c[f]rom evidence presented\u201d that while on probation defendant \u201cwillfully and without lawful excuse violated the terms and conditions of the Probation Judgment\u201d by failing to make the required payments was sufficient to show that the trial court considered and evaluated defendant\u2019s evidence, which consisted only of defendant\u2019s unsworn statement that, \u201cI\u2019ve just been out of work.\u201d\n2. Criminal Law \u00a7 143.12\u2014 revocation of probation \u2014 punishment other than imprisonment-consideration of alternatives not required\nWhere the trial court inquired of defendant his reasons for nonpayment of funds required by his probationary judgment and found from the evidence presented that defendant\u2019s failure to pay was willful and without lawful excuse, the court was not required to consider alternate means of punishment other than imprisonment.\nAPPEAL by defendant from Rousseau, Judge. Judgment entered 17 September 1984 in Superior Court, Wilkes County. Heard in the Court of Appeals 7 November 1985.\nAttorney General Lacy H. Thornburg by Associate Attorney Kathryn L. Jones for the State.\nDennis R. Joyce for the defendant appellant." }, "file_name": "0507-01", "first_page_order": 539, "last_page_order": 542 }