An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1211
                        NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014


STATE OF NORTH CAROLINA

      v.                                      Wilkes County
                                              Nos. 05 CRS 52751-62, 52764-76,
ROBERT SAMUEL BALLARD                              06 CRS 50104-08, 50116-28,
                                                   06 CRS 50479


      On writ of certiorari from judgments entered 16 April 2012

by Judge L. Todd Burke in Wilkes County Superior Court.                       Heard

in the Court of Appeals 26 May 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Andrew O. Furuseth, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Mary Cook, for defendant-appellant.


      HUNTER, Robert C., Judge.


      Defendant     Robert     Samuel    Ballard    pled    no   contest     on   22

September 2006 to twenty-five counts of obtaining property by

false pretenses, twenty-two counts of obtaining possession of a

controlled     substance       by   fraud    or    forgery,      two   counts     of

trafficking in opium, felony conspiracy to traffic in opium, and

simple     possession     of    a   controlled      substance.         The    court
                                            -2-
consolidated the trafficking and conspiracy counts into a single

judgment       and   imposed      an     active    term       of    27    to     33    months

imprisonment.           The      court     also    entered         fifteen       additional

judgments, imposing consecutive terms of 15 to 18 months each.

The    court    suspended      these      sentences     and    placed      defendant       on

supervised probation for 42 months.

       On 22 June 2011, 27 June 2011, and 1 July 2011, defendant’s

probation officer filed violation reports.                         The court conducted

a hearing on 16 April 2012.                The court concluded defendant had

willfully violated the conditions of his probation and activated

the sentences.          On 9 April 2013, this Court allowed defendant’s

petition for writ of certiorari seeking review of the 16 April

2012 judgments.

       Defendant’s appointed counsel filed a brief on defendant’s

behalf    in    which    she     states    she    has   reviewed         the   record     and

relevant cases and statutes and is unable to identify any issue

with    sufficient       merit    to     support    a    meaningful        argument       for

relief on appeal.          In accordance with Anders v. California, 386

U.S. 738, 18 L. E. 2d 493 (1967), and State v. Kinch, 314 N.C.

99,    331   S.E.2d     665    (1985),     counsel      has    asked      this    Court    to

review the record on appeal for possible prejudicial error or

any meritorious issue counsel may have overlooked.                                    Counsel
                                            -3-
wrote a letter to defendant advising him of her inability to

find error and of his right to file his own arguments directly

with this Court, which defendant has done.                         Counsel also listed

two    possible       issues    to   assist    this     Court       in     conducting    its

review.

                                       Discussion

       As the first possible issue, counsel notes the judgments

contain a finding that defendant                   had violated the              terms and

conditions of probation as charged in the 1 July 2011 violation

report when no evidence of any such violation was presented at

the hearing.          Counsel observes that the reference to the 1 July

2011    violation       report       is   possibly       a    clerical          error,    one

“resulting from a minor mistake or inadvertence, [especially] in

writing    or     copying       something     on   the       record,       and    not    from

judicial reasoning or determination.”                    See State v. Lark, 198

N.C.   App.     82,    95,     678   S.E.2d   693,    702         (2009)    (citation     and

quotation marks omitted), disc. review denied, 363 N.C. 808, 692

S.E.2d 111 (2010).

       We conclude that the error is clerical.                        It is clear from

the transcript that the judgments mistakenly reference the 1

July    2011    violation        reports      instead        of     the    22    June    2011

violation reports.             The transcript shows that the court stated
                                       -4-
before it received any evidence that it would consider only the

charges in the first violation reports, namely, that defendant

failed to pay money as mandated, left the state to go to Florida

numerous times, and missed office visits.                 The court thereafter

only received evidence with regard to the violations alleged in

the 22 June 2011 reports, and stated in open court that it found

defendant willfully committed the alleged violations.

             It is universally recognized that a court of
             record has the inherent power and duty to
             make its records speak the truth.     It has
             the power to amend its records, correct the
             mistakes of its clerk or other officers of
             the court, or to supply defects or omissions
             in the record, and no lapse of time will
             debar the court of the power to discharge
             this duty.

State v. Cannon, 244 N.C. 399, 403, 94 S.E.2d 339, 342 (1956).

We accordingly remand this case to the Wilkes County Superior

Court   to   correct       the   judgments   to    reflect     the    appropriate

violation report.

    As    the     second    possible   issue,     counsel     submits   that   the

court    abused     its     discretion   when      it     revoked     defendant’s

probation.        Counsel    acknowledges    that       the   court   may   revoke

probation if it finds the defendant violated a condition of

probation willfully or without lawful excuse.                       See State v.

Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).                        A
                                          -5-
court    abuses    its     discretion      only    when     its      ruling    is   “so

arbitrary that it could not have been the result of a reasoned

decision.”    State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78,

82 (1985).        In view of the undisputed evidence that defendant

repeatedly violated the conditions of his probation, we find no

abuse of discretion.

    Defendant makes nine contentions, only two of which concern

the probation revocation proceeding or judgments, in his written

arguments submitted to this Court.                The seven contentions which

are unrelated to the probation revocation proceeding or the 16

April 2012 judgments are not properly before us and will not be

considered.

    As     for     the    arguments       which    relate       to    the     probation

revocation       proceeding,        defendant     argues:       (1)    the      Justice

Reinvestment Act was in effect at the time of the probation

revocation proceeding and could have affected the outcome of the

proceeding;      and     (2)   he   was   denied    effective         assistance     of

counsel at the probation revocation hearing.                      We conclude both

arguments lack merit.

    The fatal flaw of defendant’s first argument is that the

provisions    of    the    Justice     Reinvestment       Act     which     limit   the

reasons for revoking probation became effective only with regard
                                       -6-
to violations occurring on or after 1 December 2011.                    See State

v. Nolen, ____ N.C. App. ____, ____, 743 S.E.2d 729, 730 (2013).

The violations in this case occurred prior to that date.

      With regard to the second argument, to establish a claim of

ineffective assistance of counsel, a defendant must show that

(1)   counsel’s     performance      was   deficient    by   making   errors    so

serious   that      counsel   was      not    performing     as   the     counsel

guaranteed by the Sixth Amendment, and (2) he was prejudiced by

counsel’s deficient performance.              State v. Braswell, 312 N.C.

553, 562, 324 S.E.2d 241, 248 (1985).                  Defendant submits that

counsel’s performance was deficient because he failed to bring

defendant’s file to the hearing and failed to advise defendant

of his right to appeal the revocation of probation.

      Our review of the transcript reveals that defendant’s claim

lacks merit.        Counsel conducted extensive and thorough cross

examination    of    defendant’s      probation     officer.      Counsel      also

argued fervently      against revocation of defendant’s probation.

Defendant has not suggested what more counsel could have done to

cause a different outcome or argued that a different outcome

would have occurred had his trial counsel acted differently.

While counsel may have erred by failing to advise defendant of

his   right   to    appeal,   this    error   has    been    rectified    by    the
                                     -7-
issuance   of   the   writ   of   certiorari   to   permit   review   of    the

judgments revoking probation.

                                  Conclusion

    Except for the clerical error in the judgments, we find no

error.   We remand for correction of the judgments.



    AFFIRMED;     REMANDED    FOR    CORRECTION     OF   CLERICAL   ERROR   IN

    JUDGMENTS.

    Judges STEPHENS and ERVIN concur.

    Report per Rule 30(e).
