An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 
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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 
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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 
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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 
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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 
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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 
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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).