No. COA08 – 1154TWENTY-SIXTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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IN THE MATTER OF:)
)From MecklenburgCounty
J.R.C. )
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JUVENILE-APPELLANT’S BRIEF
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SUBJECT INDEX
Table of Authorities …………………………………………………..…ii
Questions Presented ……………………………………………………...1
Statement of the Case ……………………………………………………2
Statement of the Grounds for Appellate Review …………………….2
Statement of the Facts …………………………………………………..3
Argument ………………………………………………………………….5
- the trial court lacked proper subject matter jurisdiction to enter the adjudication and dispositional orders in this case because the juvenile peition was not filed in a timely manner as required by N.C. General Statute §7b-1703(b).
- The trial court lacked subject matter jurisdiction to adjudicate the juvenile delinquent of an offense that was not charged in the petition and not supported by the evidence presented during trial.
- the trial court committed reversible error when it failed to affirmatively state that the allegations in the juvenile petition were proven beyond a reasonable doubt as required by N.C. General Statute §7b-2411.
Conclusion ……………………………………………………………….15
Certificate of Compliance with North Carolina Appellate Rule of Procedure 28(j)(2) ……………………………………………………….16
Certificate of Filing and Service ………………………………….….16
ii.
TABLE OF AUTHORITIES
Cases
Armstrong v. N.C.State Board of Dental Examiners, 129 N.C. App. 153,
499 S.E.2d 462 (1998)…………………… ……...…………………12
In re Crayford, 32 N.C. App. 113, (1977)…………………………………10
In re Gault, 387 U.S. 1 (1967)………………………………………………9
In re Griffin, 162 N.C. App. 487, 592 S.E.2d 12 (2004)…………………....9
In re J.B., 186 N.C. App. 301, 650 S.E.2d.457 (2007)…………………. 5, 6
In re Johnson, 76 N.C. App. 159, 331 S.E.2d 756 (1985)…………………14
In re Mitchell, 126 N.C. App. 432, 485 S.E.2d 623 (1997)………………..10
In re S.D.A., 170 N.C. App. 354, 612 S.E.2d 362 (2005)………………...8
In re Wade, 67 N.C. App. 708, 711, 313 S.E.2d 862, 864 (1984)……..13, 14
Lee v. N.C.DOT, 175 N.C. App. 698 625 S.E.2d 567 (2006)……………..5,8
N.C. Department of Environment and Natural Resources v. Caroll,
358 N.C. 649, 599 S.E.2d 888 (2004)...………………………..5,8, 12
State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985)………………………..12
iii.
Statutes
N.C. Gen. Stat. § 7B-1802 (2008)…………………………………………...9
N.C. Gen. Stat. §7B-1803 (2008)……………………………………………6
N.C. Gen. Stat. §7B-1703(a) (2008)……………………………………...6, 7
N.C. Gen. Stat. §7B-1703(b) (2008)…………………………………..….6, 7
N.C. Gen. Stat. § 15A-922(a) (2008)…………………………………….…8
N.C. Gen. Stat. §15A-924(a)(5) (2008)……………………………………..9
N.C. Gen. Stat. §7B-2411 (2008)………………………………………….13
Other Authorities
N.C.R. App. P. 28(j)(2) …………………………………………………... 16
No. COA08 – 1154TWENTY-SIXTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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IN THE MATTER OF:)
)From MecklenburgCounty
J.R.C. )
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JUVENILE-APPELLANT’S BRIEF
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QUESTIONS PRESENTED
- Whether the trial court lacked proper subject matter jurisdiction to enter the adjudication and dispositional orders in this case because the juvenile peition was not filed in a timely manner as required by N.C. General Statute §7b-1703(b)?
- Whether The trial court lacked subject matter jurisdiction to adjudicate the juvenile delinquent of an offense that was not charged in the petition and not supported by the evidence presented during trial?
- Whether The Trial Court Committed Reversible Error when it failed to affirmatively state that the allegations in the juvenile petition were proven beyond a reasonable doubt as required by N.C. General Statute §7b-2411?
STATEMENT OF THE CASE
A complaint about the juvenile was received by the Court Counselor’s office on January 17, 2008. On February 20, 2008, the State filed a petition accusing the juvenile of simple assault. On May 28, 2008, during the Juvenile Court Session of the District Court for MecklenburgCounty the juvenile denied the accusation and an adjudicatory hearing was held before the Honorable Judge Hugh Lewis. The juvenile was adjudicated delinquent and a dispositional order was entered placing the juvenile on probation for six months. On May June 6, 2008 the juvenile by written motion entered a timely Notice of Appeal to the Court of Appeals.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
The juvenile appeals pursuant to North Carolina General Statutes §7B-2602 and §7B-2604, from a final judgment of the Mecklenburg County District Court entered by the Honorable Judge Hugh Lewis.
STATEMENT OF THE FACTS
On January 17, 2008, the Juvenile Court Counselor’s Office in MecklenburgCounty received a complaint that J.R.C. assaulted D.D. when she pushed and hit D.D. (Rp. 3) Thirty four days later, on February 20, 2008, the Juvenile Court Counselor filed a petition with the Clerk of Superior Court. (Rp. 2)
On May 26, 2008, an adjudicatory hearing was held before the Honorable Hugh B. Lewis, Judge presiding. The evidence showed that on December 7, 2007, J.C., the juvenile-appellant, went to RansonMiddle School to pick up her younger brother from school. (Tp. 54 line 16-18) J.C. saw the victim D.D. in the car pool lane at RansonMiddle School. (Tp. 57 line 18) D.D. and the juvenile argued. (Tp. 58 line 7-9) J.C. testified that D.D. hit her in her back first and she turned around and hit her back and then they started fighting. (Tp. 59 line 11-15)
D.D. testified that she saw J.C. and J.C. told her that she was going to beat her up. (Tp. 6 line 21) D.D. also stated that J.C. walked up to her and punched her on the right side of her face. (Tp. 6-7) After D.D. was punched, she testified that she punched J.C. back and they started fighting.
At the end of the adjudicatory hearing, the State asked the trial court to adjudicate J.C. delinquent of simple assault. (Tp. 76 lines 9-10) Instead the trial court found that J.C. was involved in a fight in a public place that was between two or more people and caused terror to the people, therefore, she has committed the lesser included offense of assault. (Tp. 77 lines 11-14)
The court proceeded to the disposition hearing where it ordered that under a Level 1 disposition, the juvenile, J.C. be placed on a six months of probation and that she complete 40 hours of community service and abide by a curfew. (Tp. 79 lines 19-25)
ARGUMENT
- the trial court lacked proper subject matter jurisdiction to enter the adjudication and dispositional orders in this case because the juvenile peition was not filed in a timely manner as required by N.C. General Statute §7b-1703(b).
Assignment of Error 8 Rp. 36
Standard of Review
The issue of whether a trial court had subject matter jurisdiction to hear a case is a question of law that may be raised at any time, and may be raised for the first time on appeal. In re J.B., 186 N.C. App. 301, 650 S.E.2d.457 (2007). Where the appealing party asserts that the lower court’s decision was based on an error of law, the reviewing court must apply a de novo standard of review. Lee v. N.C.DOT, 175 N.C. App. 698, 700, 625 S.E.2d 567, 569 (2006). “Under the de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the [lower court].” N.C. Department of Environment and Natural Resources v. Caroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
Discussion
When a juvenile court counselor receives a complaint regarding a juvenile, the counselor is required to evaluate the complaint and determine whether a petition should be filed. N.C. Gen. Stat. §7B-1803. The counselor is require to make this evaluation within fifteen days of receipt of the complaint, with an extension for a maximum of fifteen additional days at the discretion of the chief court counselor, thereby giving the court counselor a maximum total of 30 days to complete his evaluation. N.C. Gen. Stat. §7B-1703(a). “If the juvenile court counselor determines that a complaint should be filed as a petition, the counselor shall file the petition as soon as practicable, but in any event within 15 days after the complaint is received, with an extension for a maximum of 15 days at the discretion of the chief court counselor.” N.C. Gen. Stat. §7B-1703(b). Therefore, if the court counselor wants to file a petition, the petition must be filed within 30 days after the complaint was received by the court counselor’s office. Once the petition is filed with the clerk of court of Superior Court, it serves as the pleading in the juvenile action and the juvenile action is commenced. In re J.B., 186 N.C. App. 301, 650 S.E.2d.457 (2007).
In this case, the juvenile petition reveals that the Mecklenburg Juvenile Court Counselor’s Office received the complaint on January 17, 2008. (Rp. 2) On February 8, 2008, the court counselor timely determined that a petition should be filed. However, the petition was not filed in the office of the clerk of court of Superior Court until February 20, 2008 as indicated by the file stamp on the first page of the juvenile petition. (Rp.2; Tp.3 line 11) The petition in this case was filed more than thirty days after the receipt of the complaint. The petition should have been filed at the latest on February 16th, 2008. Since the petition was filed outside the statutory maximum time of thirty days in accordance with N.C. Gen. Stat. §7B-1703(b), the trial court did not have proper jurisdiction over the petition or over the juvenile. This constitutes reversible error and the adjudication and dispositional orders should be vacated.
- The trial court lacked subject matter jurisdiction to adjudicate the juvenile delinquent of an offense that was not charged in the petition.
Assignments of Error Numbers 2,3,4,5,6, and 7, Rpp. 35-36
Standard of Review
The issue of subject matter jurisdiction is a question of law that may be raised at any time, and may be raised for the first time on appeal. In re S.D.A., 170 N.C. App. 354, 357-58, 612 S.E.2d 362, 364 (2005). Where the appealing party asserts that the lower court’s decision was based on an error of law, the reviewing court must apply a de novo standard of review. Lee v. N.C.DOT, 175 N.C. App. 698, 700, 625 S.E. 2d 567, 569 (2006). “Under the de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the [lower court].” N.C. Department of Environment and Natural Resources v. Caroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
Discussion
In order to properly obtain jurisdiction over a criminal defendant charged with a misdemeanor offense, a criminal pleading must be filed. N.C. Gen. Stat. § 15A-922(a) (“The citation, criminal summons, warrant for arrest, or magistrate’s order serves as the pleading of the State for a misdemeanor prosecuted in district court, unless the prosecutor files a statement of charges.”) “A criminal pleading must contain ….a plain and concise factual statement in each count which … asserts facts supporting every element of a criminal offense and the defendant’s commission thereof, with sufficient precision clearly to apprise the defendant… which is the subject of the accusation.” N.C. Gen. Stat. §15A-924(a)(5) (2003).
In a juvenile action, the criminal pleading is the juvenile petition and like the criminal pleading in an adult misdemeanor case, it should contain “a plain and concise statement …asserting facts supporting every element of a criminal offense and the juvenile’s commission thereof with sufficient precision clearly to apprise the juvenile of the conduct which is the subject of the allegation.” N.C. Gen. Stat. § 7B-1802 (2003). The juvenile petition serves two purposes. It provides notice to the juvenile in advance of scheduled court proceedings to afford the juvenile the right of due process of a reasonable opportunity to prepare her defense. In re Griffin, 162 N.C. App. 487, 592 S.E.2d 12 (2004). The right to timely notice of the criminal offense, the elements of the offense and the allegations is an essential right of due process that the United States Supreme Court has held applies in a juvenile delinquency proceeding. In re Gault, 387 U.S. 1 (1967).
The second purpose that the juvenile petition serves is once it is properly served on the juvenile, it limits the Juvenile Court’s subject matter jurisdiction to that of the charged offense. See In re Mitchell, 126 N.C. App. 432, 485 S.E.2d 623 (1997).
The juvenile petition in the present case states that the juvenile “unlawfully and willfully did assault and strike D.D., a juvenile, by pushing her and hit her with a closed fist.” (Rpp. 2-3) Therefore, the Juvenile Court had proper subject matter jurisdiction to adjudicate the juvenile delinquent only of simple assault.
There was an adjudicatory hearing held in this case and the State presented evidence that the juvenile assaulted D.D. by hitting D.D. on the side of her face (Tpp. 4-33) At the close of all of the evidence the State argued that the juvenile had assaulted D.D. and that the trial court should adjudicate the juvenile delinquent of simple assault. (Tp. 76 line 9) Instead the trial court made findings that an affray occurred. Specifically the trial court held that “…the two young ladies participated in an affray. That an affray is defined as a fight between two or more persons in a public place as to cause terror to the people as defined in In re Crayford, 32 N.C. App. 113, (1977).” (Tp.76 lines 18-23) The trial court also held that “since the [juvenile] beyond a reasonable doubt did – was involved in a fight in a public place that was between two or more people and caused terror to the people, therefore, she has committed the lesser included offense of assault.” (Tp.77 lines 9-14)
The petition in this case limited the trial court jurisdiction’s to determine if the juvenile assaulted D.D. by pushing and hitting her. The trial court did not have proper subject matter jurisdiction to adjudicate the juvenile delinquent of committing an affray. Moreover, by adjudicating the juvenile of an offense not charged in the petition, the trial court deprived the juvenile of her right to due process because the juvenile was not provided with notice that she was accused of affray and the State did not present evidence of affray. The trial court erred in making findings of fact that fatally varied from the allegations in the petition and the evidence presented at trial. This constitutes reversible error and the juvenile order adjudicating respondent delinquent and the subsequent dispositional order should be vacated.
- The Trial Court Committed Reversible Error when it failed to affirmatively state that the allegations in the juvenile petition were proven beyond a reasonable doubt as required by N.C. General Statute §7b-2411.
Assignment of Error Number 7, Rp. 36
Standard of Review
This issue raises the question of whether the trial court erred by violating a statutory mandate and it is therefore automatically preserved for appellate review regardless of whether there was an objection in the trial court. State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). Moreover an alleged error of a trial court’s interpretation of a statute is an error of law and a reviewing court’s standard of review for an error of law is the de novo standard of review. Armstrong v. N.C. State Board of Dental Examiners, 129 N.C. App. 153, 499 S.E.2d 462 (1998), cert denied 525 U.S. 1103, 142 L.Ed.2d 770 (1999). “Under the de novo standard, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the [lower court].” N.C. Department of Environment and Natural Resources v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895(2004).
Discussion
North Carolina General Statute §7B-2411 provides that if the court finds that the allegations in the juvenile petition have been proved by the State, the court shall so state. N.C. Gen. Stat. §7B-2411 emphasis added. The North Carolina Court of Appeals has held that “”the statutory use of ‘shall’ is a mandate to trial judges requiring them to affirmatively state that the allegations of the juvenile petition are proved beyond a reasonable doubt.” In re Wade, 67 N.C. App. 708, 711, 313 S.E.2d 862, 864 (1984). Failure to follow the mandate of the statute is reversible error. Id.
In this case, there was an adjudicatory hearing and the State presented evidence at the hearing of the allegation in the petition that juvenile hit D.D. At the close of the adjudicatory hearing, the trial court was required to state that this allegation in the petition was proved beyond a reasonable doubt. The trial court failed to comply with the statutory mandate. Instead, the trial court stated that “since the young lady beyond a reasonable doubt -- was involved in a fight in a public place that was between two or more people and caused terror to the people, therefore she committed the lesser included offense of assault.” (Tp. 77) The trial court also stated that it “found the juvenile delinquent of the Class II misdemeanor of simple assault and [held] her responsible for the same.” (Tp. 77)
This case is similar to the trial court’s failure to follow the mandate of N.C.G.S. §7B-2411 in the case of In re Wade. In re Wade, 67 N.C. App. 708, 711, 313 S.E.2d 862, 864 (1984). The juvenile was charged by petition and adjudicated delinquent of felony breaking and entering a building and stealing $200. In re Wade at 709. The trial court found that the juvenile went to the side entrance of Western Auto Store and threw a rock through a window and caused damage worth $200. Id at 711. The trial court failed to state that the allegations in the juvenile petition were proved beyond a reasonable doubt and the Court of Appeals held this to be reversible error. Id.In this case, the trial court committed the same error. It failed to affirmatively state that the allegations in the juvenile petition had been proven beyond a reasonable doubt. The trial court only stated that it “found the juvenile delinquent of the Class II misdemeanor of simple assault and [held] her responsible for the same.” (Tp. 77 lines 16-18)
In order to comply with the statutory mandate, the trial court should have stated that it found the allegations in the petition, mainly that the juvenile pushed and hit D.D. with a closed fist, had been proven beyond a reasonable doubt. The trial court’s failure to state affirmatively and orally that an adjudication of delinquency is based upon proof beyond a reasonable doubt constitutes reversible error. In re Johnson, 76 N.C. App. 159, 331 S.E.2d 756 (1985). Therefore, the adjudication order finding the juvenile delinquent and the dispositional order in this case should be vacated.
CONCLUSION
For all the foregoing reasons, J.R.C. respectfully asks the Honorable Court of Appeals to vacate the adjudication order and dispositional order entered in this case.
Respectfully submitted to the Honorable Court of Appeals, this the 10th day of November, 2008.
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Geeta Kapur
Attorney at Law
Post Office Box 51035
Durham, NC27717
919.260.1977
ATTORNEY FOR JUVENILE
CERTIFICATE OF COMPLIANCE WITH NORTH CAROLINA RULE OF APPELLATE PROCEDURE 28(j)(2)
Undersigned counsel hereby certifies that this brief is in compliance with N.C.R. App. P. 28(j)(2) in that it is printed in 14-point Times New Roman Font and contains no more than 8,750 words in the body of the brief, footnotes and citations included, as indicated by the word-processing program used to prepare the brief.
This the 10th day of November, 2008.
______
Geeta Kapur
Attorney at Law
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Juvenile-Appellant’s Brief has been filed by mail pursuant to Rule 26 by sending it first-class mail, postage prepaid to the Clerk of the North Carolina Court of Appeals, Post Office box 2779, Raleigh, North Carolina, 27602, by taking it to the United States Post Office.
I further certify that a copy of the above and foregoing Juvenile-Appellant’s Brief has been duly served upon Ms. Lisa G. Corbett, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602-0629 by first-class mail, postage prepaid.
This the 10th day of November, 2008.
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Geeta Kapur
Attorney at Law