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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-611 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. JOSHUA PERNAILL CHAMBERLAIN Pitt County No. 10 CRS 50591

Appeal by Defendant from judgment entered 24 January 2011 by Judge Alma L. Hinton in Pitt County Superior Court. the Court of Appeals 28 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Tracy J. Hayes, for the State. Irons & Irons, P.A., by Ben G. Irons, II, for Defendant. STEPHENS, Judge. On 29 November 2010, Defendant Joshua Pernaill Chamberlain pled guilty in Pitt County Superior Court to possession of a weapon of mass destruction. to 15 months in prison, The court sentenced Defendant to 12 suspended the sentence, and placed Heard in

Defendant on supervised probation for 24 months. 2011, Defendant's probation officer filed a

On 13 January report that

-2Defendant had violated the conditions of his probation. January 2011, a of Defendant controlled his admitted substance, At a that in he had On 24

possessed of the a

marijuana, conditions

violation

probation.

revocation

hearing,

probation officer1 stated that, inter alia, Defendant had voiced his intention to violate the terms of his probation and to make the probation period difficult for the probation officers.

Defendant's counsel responded that he hoped Defendant's comments were simply a "miscommunication or a misunderstanding," noted that Defendant had no other violations, and asked the court to continue Defendant's probation. Defendant's probation and The trial court then revoked his sentence. Defendant

activated

appeals, arguing that the trial court violated Defendant's due process rights of by his denying probation him an opportunity and that to speak in

mitigation

violation

his

counsel We

provided ineffective assistance at the revocation hearing. affirm. Our appellate courts have consistently held that proceedings to revoke probation are informal in nature such that the trial court is not bound by the strict rules of evidence. Additionally, once the State has presented competent evidence establishing a
1

Defendant's probation officer was ill on the date of the revocation hearing and another probation officer appeared on his behalf.

-3defendant's failure to comply with the terms of probation, the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms. If the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation. State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002) (internal citations omitted). Defendant first argues that the trial court violated his constitutional officer to due process hearsay rights by allowing a probation made by

present

statements

allegedly

Defendant without permitting Defendant an opportunity to refute the statements. However, neither Defendant nor his counsel

requested an opportunity for Defendant to speak in mitigation or raised any constitutional matter during the revocation hearing. It is well-established that we will not address constitutional arguments not raised in the trial court. N.C. 332, 336, 196 S.E.2d 185, of State v. Braswell, 283 (1973). by Defendant possessing

187-88 his

admitted

violating

conditions

probation

marijuana, which fully supports the court's decision to revoke his probation and activate his sentence. App. at 437-38, 562 S.E.2d at 540. See Terry, 149 N.C.

-4Neither at the revocation hearing nor on appeal has

Defendant suggested, much less argued, that he was unable to comply with the terms of his probation. Further, Defendant

fails to explain how the trial court abused its discretion in activating his sentence. Id. On the contrary, his position

relies entirely on speculation that the court based its decision to revoke his probation solely on the hearsay statements of the probation officer. Defendant's argument in this regard finds no

support in the record before this Court and is overruled. Defendant also argues that the trial court violated the statutory requirements of N.C. Gen. Stat.

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