NO. COA05-125 JUDICIAL DISTRICT TWENTY-SEVEN A
NORTH CAROLINA COURT OF APPEALS
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IN THE MATTER OF: )
)From Gaston
P.L.M.E. )01-J-346
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JUVENILE APPELLANT’S BRIEF
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INDEX
TABLE OF CASES AND AUTHORITIES………………………………...... ii
QUESTION PRESENTED………………………………...... 1
JURISDICTIONAL STATEMENT……………...... 1
STATEMENT OF THE CASE.………...……...... 1
STATEMENT OF FACTS………………………………...... 2
ARGUMENT:
I.The trial court committed reversible error by
finding that the Juvenile Defendant violated two(2)probationary sentences because the record
does not contain adequate findings, in light of
The juvenile’s psychiatric problems, oF
willfulness by the Juvenile DEFENDANT………………………………....3
CONCLUSION………………………………...... 7
CERTIFICATE OF SERVICE………………………………...... 9
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TABLE OF CASES AND AUTHORITIES
State v. Hill, 132 N.C. App. 209, 510 S.E.2d 413(1999)………..7
State v. Jones, 78 N.C. App. 507, 337 S.E.2d 195(1985)………..7
State v. Pedroza, ___N.C. App., ___S.E.2d___(2004)…………………..7
State v. Whittle, 118 N.C. App. 130, 454 S.E.2d 688(1995)….3
State v. Young, 21 N.C. App. 316, 204 S.E. 2d 185 (1974)…..3
N.C. Gen. Stat. § 7B-1001.……………………………...... 1
N.C. Gen. Stat. § 7B-1002.……………………………...... 1
N.C. Gen. Stat. §7B-2508.……………………………...... 3
N. C. Rules App. Pro., Rule 3.……………………………...... 1
No. COA05-125 JUDICIAL DISTRICT TWENTY-SEVEN A
NORTH CAROLINA COURT OF APPEALS
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IN THE MATTER OF: )
)From Gaston
P.L.M.E. )01-J-346
(DOB: 9-29-88)
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JUVENILE APPELLANT’S BRIEF
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QUESTION PRESENTED
Does the record, in the light of evidence
presented by the juvenile of psychiatric
problems, contain sufficient showing Of
willfulness on the part of the juvenile
To support the trial court’s revocation
Of probation?
JURISDICTIONAL STATEMENT
Jurisdiction in the North Carolina Court of Appeals for this case is based upon N.C. Gen. Stat. § 7B-1001, N.C. Gen. Stat. § 7B-1002, and N. C. Rules App. Pro., Rule 3.
STATEMENT OF THE CASE
From an order entered by the Honorable John K. Greenlee, presiding judge, as the result of a hearing in the Gaston County District Court, Juvenile Division, on June 10, 2004, making a juvenile disposition as to the Juvenile Appellant, and committing her to the Department Of Juvenile
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Justice And Delinquency Prevention, the order being reduced to writing, and signed and filed on June 18, 2004; the Juvenile appeals.
STATEMENT OF THE FACTS
The Juvenile, P.L.M.E.,(The Juvenile hereafter)was adjudicated delinquent on October 4, 2002 for Assault With A Deadly Weapon, Injury To Personal Property, and Injury to Real Property. (R. p. 35) The disposition on those cases was that the Juvenile was placed on probation for twelve months on July 14, 2003. (R. p. 35, T. p. 10) Two(2)conditions of probation were that the Juvenile attend school regularly, and cooperate with any placement arranged through Pathways Mental Health.(R. p. 35)
The Juvenile was suspended from school for ten(10)days for poor behavior on November 23, 2003. (R. p. 35, T. pp. 10-11) The Juvenile was suspended from school on January 18, 2004 for poor behavior. (R. p. 35) On January 22, 2004, the Juvenile was discharged from Shining Star Group Home, a Level 3(Three)therapeutic placement due to non-compliant behavior. She had been placed there by Pathways Mental Health. (R. p. 35, T. pp. 11-12) On February 11, 2004, the Juvenile was discharged from BWC Group Home, a Level 3(Three)therapeutic placement due to non-compliant behavior. She had been placed there also by Pathways Mental Health.
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(R. p. 35, T. pp. 11-12) On February 24, 2004, the Juvenile admitted the offense of Assault On A Government Official in Mecklenburg County. (R. p. 36)
ARGUMENT
I.The trial court committed reversible error by
finding that the Juvenile Defendant violated two(2)probationary sentences because the record
does not contain adequate findings, in light of
The juvenile’s psychiatric problems, oF willfulness
by the Juvenile DEFENDANT.
ASSIGNMENT OF ERROR NO. 2
Record, pages 33-41
Transcript, pages 32-35
Proof that a juvenile has violated probation must be by the greater weight of the evidence. N.C. Gen. Stat. §7B-2508. In a proceeding to revoke probation, if a defendant fails to offer evidence of an inability to comply with the probationary terms, evidence of non-compliance is sufficient to justify finding the failure to be willful, or without lawful excuse. State v. Young, 21 N.C. App. 316, 204 S.E. 2d 185 (1974). To be willful, an act must be intentional, and purposely and designedly in violation of the law. State v. Whittle, 118 N.C. App. 130, 454 S.E.2d 688(1995).
The Juvenile in the instant case presented evidence that she suffered from serious psychiatric conditions. (T. pp. 16-22) Dr. Steve Strezlecki, an expert in child
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psychology, testified for the Juvenile. (T. pp. 16-17) He had interviewed the Juvenile on March 8, 2004, as part of a comprehensive psychological evaluation. This included a personal clinical interview, an assessment of her intellectual academic ability, and an assessment of her emotional and behavioral functioning. (T. p. 17, App. GA196-197) Several tests were administered as part of the evaluation, including the Wexler Abbreviated Intelligence Test, the Minnesota Multiphasic Personality Inventory, Adolescent version, and Wide Range Achievement Test-3. (T. pp. 17-18, App. GA197).
The Juvenile presented a history to Dr. Strezlecki of violent behavior, including attempts to kill people, and aggression toward her peers. She reported multiple inpatient psychiatric hospitalizations for her violence; and involvement with various outpatient mental health programs in her life. (App. GA-197)
Dr. Strezlecki recommended a Level IV treatment program for the Juvenile to address emotional, psychiatric and academic needs. (App. GA198-199) Dr. Strezlecki testified that persons with schizophrenia, hypervigilance or schizoaffective disorder could experience problems complying with a treatment program if emotional stressors were adversely effecting them. (T. p. 22)
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At the time of the interview and testing in March, 2004, the Juvenile was taking the following medications: Wellbutrin, an antidepressant; Lexapro, an antidepressant; and Ritalin, for improving attention skills.(T. p. 23, App. GA197)
The interview and the tests results revealed that the Juvenile’s intellectual ability was average, and appropriate for her adolescent age. (T. p. 18, App. GA198) Her thought processing showed significant evidence of unusual, bizarre, psychotic like thinking. The Juvenile indicated to Dr. Strezlecki that she had bipolar disorder. (T. p. 19, App. GA197)
From the testing, it appeared that emotional and behavioral functioning was significantly elevated in relation to behavioral disturbances, as well as underlying emotional functioning with hypervigilance, paranoia, psychotic thinking, delusional thinking, fantasy life, unusual experiences, and other patterns inconsistent with the majority of people. Her profile suggested disturbances in reality testing, impulse control, and thought processing, suggestive of bipolar disorder, schizoaffective disorder, and/or schizophrenia. (T. pp. 18-19, App. GA198-199)
Dr. Strezlecki opined that persons with these
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conditions would see and interpret things differently from most people, and would react differently than most people. Those reactions could range from emotionally shutting down to reacting aggressively. Such a person‘s thinking skills could be limited, and they could have problems using sound judgment regardless of the level of their intelligence. (T. pp. 19-20) Such a person would be less likely to react rationally to situations. (T. p. 21)
Despite counsel for the Juvenile’s arguments that the Juvenile’s psychiatric and emotional conditions negated willfulness, and the evidence that these conditions existed(T. pp. 27-30), none of this was taken into account by the trial judge in the orders which found the Juvenile to have violated probation, and which committed her to the Department Of Juvenile Justice. (R. p. 33-39) The trial judge stated in court that he did not find Dr. Strezlecki’s testimony dispositive on the issue of willfulness, but did not explain this opinion or deal with it at all in the orders that resulted. At trial he stated that no evidence had been presented that cast any doubt on the State‘s contentions, but gave no basis or explanation to support this belief. (T. pp. 31-32) The trial court is not required to make findings of fact concerning the evidence in support of every contention of the defendant, but is required to do
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so if the defendant offers evidence for claims of inability or lawful excuse. State v. Pedroza, ___N.C. App., ___S.E.2d___(2004).
Sincethe defendant offered evidence which tended to show that she was psychologically unable to comply with the requirements of probation, the trial judge, as the finder of facts, was not required to accept defendant's evidence as true, but should not have proceeded under the erroneous assumption that the fact of failure to comply required revocation of probation. The Juvenile is entitled, like any defendant, to have her evidence considered and evaluated. It appears that this was not done in the instant case, and the order revoking probation should be vacated and the cause remanded for a new hearing where the Juvenile is allowed to have her evidence considered, and not ignored. State v. Young, 21 N.C. App. 316(1974); State v. Hill, 132 N.C. App. 209, 510 S.E.2d 413(1999); State v. Jones, 78 N.C. App. 507, 337 S.E.2d 195(1985).
CONCLUSION
Because the trial court failed to take into account, and consider the Juvenile’s serious psychological conditions as they relate to whether or not she willfully violated probation, the orders of the Court should be vacated, and
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the matter remanded for new findings and conclusions.
This the 21st day of April, 2005.
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David Childers
Attorney For Juvenile-Appellant
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CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the foregoing JUVENILE-APPELLANT’S BRIEF by depositing a copy thereof in an envelope bearing sufficient postage in the United States Mail, first class, addressed to the following:
June S. Ferrell
Assistant Attorney General
Department Of Justice-Medical Facilities Section
114 W. Edenton Street
P. O. Box 629
Raleigh, North Carolina 27602
The Clerk Of The North Carolina Court of Appeals
P.O. Box 2779
Raleigh, North Carolina 27602-2779
This the 21st day of April, 2005.
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David Childers,
Attorney for Juvenile-Appellant
108 Tuckaseege Road
Mount Holly, North Carolina 28120
(704) 822-0531