               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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