Defendant Ollie Junior Alston appeals judgments activating previously-suspended probationary sentences. We affirm the trial court.
Examination of the record reveals the following: On 1 June 1998, defendant entered into a plea bargain arrangement (plea bargain) under which he pleaded guilty to each of four counts of taking indecent liberties with a child. Defendant’s pleas were tendered pursuant to
North Carolina v. Alford,
On 15 September 1998, a probation violation report was filed in each case, alleging defendant had “failed to complete the sex offender program [(the program)] at the Edgecombe-Nash Mental Health Center” (the Center). During a violation hearing conducted 26 October 1998, Robert Bissette (Bissette), defendant’s supervising probation officer, testified defendant had enrolled in the program at the Center, but that he “could not complete the program because he wouldn’t admit to what he had done.” The court also received into evidence a 13 August 1998 letter to the Adult Probation/Parole Department from Ted Simpson (Simpson), a licensed psychologist at *789 the Center, stating that “the minimum entrance criterion for the [progrаm wa]s that the offender accept some level of guilt and responsibility for his abuse.” Simpson related that defendant had “steadfastly and consistently maintained his innocence,” and therefore “[wa]s not appropriate for inclusion” in the program. Defendant did not testify at the hearing, and his presentation was limited to tendering a copy of his plea transcript and arguing that, in light of his “Alford plea,” he was not required to admit guilt during the program.
Following the hearing and
[a]fter considering the record . . . together with the evidence presented by the parties and the statements made оn behalf of the State and the defendant,
the trial court rendered the following factual findings in each case:
1. The defendant is charged with having violated specific conditions of [his] probation as alleged in:
X a. the Violation Report(s) on file herein, which is incorporatеd by reference.
3. The condition(s) violated and the facts of each violation are as set forth . . .
X a. in paragraph(s) 5 in the Violation Report or Notice dated 09-15-98 .
5. 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.
X Each violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activatе the suspended sentence.
The court thereupon ordered defendant’s probation revoked and his suspended sentence activated. Defendant appeals.
In seeking to revoke a probationary sentence, the State must show that the defendant, without lawful еxcuse, willfully violated a
*790
condition of probation,
State v. Seagraves,
then the evidence which establishes that defendant has failed to . . . [comply with] the terms of the judgment is sufficient within itself to justify a finding by the [trial court] that defendant’s failure to comply was without lawful excuse.
State v. Williamson,
On appeal,
“ ‘[t]he findings of the [trial court], and [its] judgment upon them, are not reviewable ... unless there [wajs a. manifest abuse of. . . discretion.’ ”
State v. Green,
Defendant asserts that acceptance of his “Alford plea” by the trial court “necessarily contemplate[d]” that he would be allowed to maintain factual innocence, even while fulfilling probationary conditions imposed by the court. Specifically, defendant contends that
maintaining his innocencе . . . pursuant to his Alford plea[] should be considered a lawful excuse for not having completed the program.
Furthermore, defendant argues:
To now hold that [he] has violated his probation because of his refusal to acknowledge his guilt is unjust and inequitable, and robs him of the benefit of the bargain he struck with the State by entering into the plea bargain arrangement.
Defendant’s argument that his “Alford plea” excuses his failure to participate in the program raises an issue of first impression in this jurisdiction. We therefore examine the principles espoused in Alford and the decisions of other courts thаt have addressed the issue.
Preliminarily, however, we address briefly defendant’s contention that the plea bargain between himself and the State was somehow
*791
compromised by inclusion in the program the requirement that he acknowledge having committed the charged offenses. Because the hearing transcript reveals defendant failed to raise this argument in the trial court, the question is not properly before us.
See
N.C. R. App. P. 9(a) (appellate “review is solely upon the record on appeal and the verbatim transcript of proceedings”), and
State v. Hall,
Even if the issue were preserved for appellate review, mоreover, we note the plea transcript indicates defendant’s acquiescence in the program condition.
If [defendant] had wished to challenge that condition as inconsistent with his plea agreement, he could have moved to withdraw his plea prior to the imposition of sentence.
People v. Birdsong,
Further, the record reveals no motion for appropriate relief by defendant
seeking to vacate his plea on the basis that he mistakenly and detrimentally relied upon plea agreement that differed from the terms and conditions of probаtion.
Id. Nor does the record reflect defendant sought to withdraw his plea at the probation revocation hearing. See id.
Prior to leaving this issue, moreover, we observe that defendant’s claim of a plea bargain violation by implication also includes the argument his plea may have been rendered involuntary by virtue of the sentencing court’s failure to advise him he might be required to admit guilt in order to satisfy the program condition. However, the question of the voluntariness of defendant’s plea likewise was not raised in the trial court nor has it been argued befоre this Court.
See
N.C. R. App. P. 9(a), and
Hall,
At the outset, it must be noted that, in view of defendant’s failure to present evidence of inability to comply,
see Crouch,
Notwithstanding, we consider defendant’s assertion that “maintaining his innocenсe ... pursuant to his Alford plea[] should be considered a lawful excuse” for failure to comply with the program condition.
Alford
established that a defendant may enter a guilty plea while continuing to maintain his or her innocence.
In the words of our Supreme Court,
while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his particiрation in the acts constituting the crime.
Id. Commentators have noted that a defendant may choose to enter an Alford plea for reasons other than admitting guilt; for example, a defendant may wish to “plea bargain for a predictable, and often shorter, sentencе or to protect others from the rigors, expense, or publicity of a trial.” Alice J. Hinshaw, Comment, State v. Cameron: Making the Alford Plea an Effective Tool in Sex Offense Cases, 55 Mont. L. Rev. 281, 281 (1994).
Nonetheless, an “Alford plea” constitutes “a guilty plea in the same way that a plea of
nolo contendere
or no contest is a guilty plea.”
State ex rel. Warren v. Schwarz,
*793 As a consequence, in accepting an “Alford plea” as
a concession to [a] defendant, [the trial court accords that defendant] no implications or assurances as to future revocation proceedings.
Birdsong,
As the Wisconsin Supreme Court stated in Warren:
[a] defendant’s protestations of innocence under an Alford plea extend only to the plea itself.
. . . “There is nothing inherent in the nature of an Alford plea that gives a defendant any rights, or promises any limitations, with respect to the punishment imрosed after the conviction.”
. . . Put simply, an Alford plea is not the saving grace for defendants who wish to maintain their complete innocence. Rather, it is a device that defendants may call upon to avoid the expense, stress and embarrassment of trial and to limit one’s exposurе to punishment [and it is] not the saving grace for defendants who wish to maintain their complete innocence.
Id.
at 707 (citations omitted) (emphasis added);
see generally Smith v. Com.,
Under the plea bargain sub judice, defendant expressly acknowledged his understanding that he would be, and that he agreed to be, “treated as . . . guilty” whether or not he admitted guilt. Further, defendant’s plea bargain set forth specified probationary conditions, which he agreed to perform, including “active” participation and “successful!]” completion of “a sexual offender treatment program,” as well as defendant’s stipulation that his“[f]ailure to fully participate and successfully complеte” such program would “constitute immedi *794 ate grounds for revocation” of his probation. Defendant not only agreed to such terms during the oral plea colloquy with the court, but personally, along with his counsel, signed the plea transcript incorporating the terms of the pleа bargain.
Upon defendant’s assent to the foregoing terms and conditions, the trial court accepted the plea bargain, including defendant’s “Alford plea,” and sentenced defendant accordingly. In doing so, however, the trial court conveyed “no implications or assurаnces as to future revocation proceedings.”
Birdsong,
It is well established that “probation or suspension of sentence is an act of grace” and not a right.
State v. Baines,
To summarize, the trial court’s determination that defendant had violated the probationary cоndition that he “actively participate” in and “successfully complete” a sexual offender treatment program in no way reflected a “manifest abuse of discretion.”
Green,
Affirmed.