No. COA11-723 TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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IN THE MATTER OF:)

)From Mecklenburg

W.L.M.)

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JUVENILE-APPELLANT’S BRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES...... ii

ISSUES PRESENTED...... 1

STATEMENT OF THE CASE...... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW...... 3

STATEMENT OF THE FACTS...... 4

ARGUMENT...... 6

I. THE TRIAL COURT ERRED IN AMENDING THE LEVEL 3 DISPOSITION AND COMMITMENT ORDER IN W.L.M.’S ABSENCE BECAUSE THE TRIAL COURT CHANGED THE COMMITMENT TERM IN THE AMENDED ORDER TO W.LM.’S EIGHTEENTH BIRTHDAY, AND THIS COMMITMENT TERM WAS NOT SPECIFICALLY STATED IN OPEN COURT AT W.L.M.’S DELINQUENCY HEARING 6

II. IN THE ALTERNATIVE, THE TRIAL COURT ERRED WHEN IT FAILED TO STATE IN OPEN COURT THE PRECISE TERMS OF W.L.M.’S DISPOSITION BECAUSE IT DID NOT STATE THE LENGTH OF W.L.M.’S COMMITMENT TO THE YOUTH DEVELOPMENT CENTER, IN VIOLATION OF N.C. GEN. STAT. § 7B-2512 12

CONCLUSION...... 18

CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2)...... 19

CERTIFICATE OF FILING AND SERVICE...... 19

TABLE OF CASES AND AUTHORITIES

CASES

Armstrong v. N.C. State Board of Dental Examiners,

129 N.C. App. 153, 499 S.E.2d 462 (1998)...... 13

In re Eades,

143 N.C. App. 712, 547 S.E.2d 146 (2001)...... 14

In re Ferrell,

162 N.C. App. 175, 589 S.E.2d 894 (2004)...... 15

In re Rikard,

161 N.C. App. 150, 587 S.E.2d 467 (2003)...... 14, 17

In re T.E.F.,

359 N.C. 570, 614 S.E.2d 296 (2005)...... 7

In re V.M.,

___ N.C. App. ___, ___ S.E.2d ___ , 2011 N.C. App. LEXIS 719

(April 19, 2011)...... 15, 17

N.C. Department of Environment & Natural Resources v. Carroll,

358 N.C. 649, 599 S.E.2d 888 (2004)...... 6, 13

State v. Ashe,

314 N.C. 28, 331 S.E.2d 652 (1985)...... 13

State v. Beck,

359 N.C. 611, 614 S.E.2d 274 (2005)...... 14

State v. Cannon,

244 N.C. 399, 94 S.E.2d 339 (1956)...... 11

State v. Crumbley,

135 N.C. App. 59, 519 S.E.2d 94 (1999)...... 7, 8, 9

State v. Davis,

167 N.C. App. 770, 607 S.E.2d 5 (2005)...... 6

State v. Dent,

174 N.C. App. 459, 621 S.E.2d 274 (2005)...... 14

State v. Harris,

198 N.C. App. 371, 679 S.E.2d 464 (2009)...... 6

State v. Jarman,

140 N.C. App. 198, 535 S.E.2d 875 (2000)...... 10, 11, 12

State v. Mims,

180 N.C. App. 403, 637 S.E.2d 244 (2006)...... 8, 9

State v. Morston,

336 N.C. 381, 445 S.E.2d 1 (1994)...... 11

State v. Pope,

257 N.C. 326, 126 S.E.2d 126 (1962)...... 8

STATUTES

N.C. Gen. Stat. §7B-2501(b) (2011)...... 15

N.C. Gen. Stat. § 7B-2512 (2011)...... passim

N.C. Gen. Stat. § 7B-2602 (2011)...... 3

N.C. Gen. Stat. §7B-2604 (2011)...... 3

OTHER AUTHORITIES

Black’s Law Dictionary 563 (7th ed. 1999)...... 10

No. COA11-723 TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

*****************************************************

IN THE MATTER OF:)

)From Mecklenburg

W.L.M.)

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JUVENILE-APPELLANT’S BRIEF

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ISSUES PRESENTED

WHETHER THE TRIAL COURT ERRED IN AMENDING THE LEVEL 3 DISPOSITION AND COMMITMENT ORDER IN W.L.M.’S ABSENCE BECAUSE THE TRIAL COURT CHANGED THE COMMITMENT TERM IN THE AMENDED ORDER TO W.L.M.’S EIGHTEENTH BIRTHDAY, AND THIS COMMITMENT TERM WAS NOT SPECIFICALLY STATED IN OPEN COURT AT W.L.M.’S DELINQUENCY HEARING?

WHETHER, IN THE ALTERNATIVE, THE TRIAL COURT ERRED WHEN IT FAILED TO STATE IN OPEN COURT THE PRECISE TERMS OF W.L.M.’S DISPOSITION BECAUSE IT DID NOT STATE THE LENGTH OF W.L.M.’S COMMITMENT TO THE YOUTH DEVELOPMENT CENTER, IN VIOLATION OF N.C. GEN. STAT. § 7B-2512?

STATEMENT OF THE CASE

On 12 April 2010, before the Honorable Kimberly Best-Staton, District Court Judge for MecklenburgCounty, W.L.M. admitted the charges of breaking and entering, possession of stolen goods, and two counts of misdemeanor larceny. (Rpp. 2-3) On 13 April 2010, the trial courtadjudicated W.L.M. delinquent and entered a Level 2 Disposition placing W.L.M. on probation. (Rpp. 4-9)

On 12 August 2010, the State filed a petition alleging that W.L.M. committed misdemeanor possession of marijuana. (Rpp. 10-11) W.L.M.’s court counselor filed a Motion for Review on 14 October 2010 alleging that W.L.M. violated the terms of his probation by failing to attend school every day. (Rp. 12) On 1 November 2010, the State filed a petition alleging that W.L.M. committed felony possession of cocaine. (Rpp. 13-14) On 9 December 2010, the State filed a petition alleging that the juvenile committed misdemeanor larceny. (Rpp. 15-16)

A delinquency hearing was held on 18 January 2011 with Judge Best-Staton presiding. (Tp. 1) At the hearing, the State chose not to proceed on the petitions for misdemeanor larceny and misdemeanor possession of marijuana. (Tpp. 5,108) W.L.M. denied the charge of felony possession of cocaine and denied the probation violation. (Tp. 5) The trial court dismissed the charge of felony possession of cocaine. (Rpp. 18-19; Tp. 67)

The State then proceeded on the Motion for Review. (Tp. 67) The trial court found by the greater weight of the evidence that W.L.M. had violated his probation. (Tp. 93) In open court, the trial court ordered a Level 3 Disposition and Commitment. (Tpp. 107-108) W.L.M. then gave oral notice of appeal. (Tp. 108)

On the Level 3 Disposition and Commitment Order signed on 18 January 2011, the trial courtfirst checked the box ordering that W.L.M. be committed to a YouthDevelopmentCenter for a minimum period of six months, and thereafter “an indefinite commitment.” (Rp. 21) The trial court then crossed this out, initialed the change, and checked Box “b.” so that the order read “and thereafter: a definite period of ______.” (Rp. 21) On 20 January 2011, the trial court amended the Level 3 Disposition and Commitment Order. (Rpp. 22-23) On the Amended Order, the court made the additional finding that “[t]he juvenile has been adjudicated for a violent or serious offense and Level III is authorized by G.S. 7B-2508.” (Rp. 22) The trial court also ordered that the maximum time that W.L.M. may remain committed is “the juvenile’s eighteenth (18th) birthday.” (Rp. 23)

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

W.L.M. appeals, pursuant to N.C. Gen. Stat. §§ 7B-2602 and 7B-2604, from a final judgment of Mecklenburg County District Court.

STATEMENT OF THE FACTS

At the delinquency hearing on 18 January 2011, the State presented evidence on the Motion for Review. (Tp. 67) Ms. Laura Gavin, W.L.M.’s court counselor, testified that after W.L.M. was placed on probation, she reviewed all the probation conditions with him, including the condition that he attend school each day. (Tpp. 71-72) On 5 October 2010, Ms. Gavin visited W.L.M. at his high school and, together, they reviewed his report card and his attendance record. (Tp. 73) Ms. Gavin saw that his attendance record noted a suspension from school for nine days beginning on 22 September 2010. (Tp. 73, 78, 85) Based on this suspension, Ms. Gavin filed the Motion for Review. (Tp. 83) At the conclusion of the State’s evidence, the trial court found by the greater weight of the evidence that W.L.M. violated the conditions of his probation. (Tp. 93)

The court then asked Ms. Gavin for her recommendation, which was that W.L.M. be sent to “training school.” (Tp. 94) Ms. Gavin commended W.L.M. for doing well over the past few months, and noted that he did extremely well while on the electronic monitor. (Tp. 94) However, Ms. Gavin believed that when W.L.M. was unsupervised, he made poor choices. (Tpp. 94-95) After listening to the recommendations of Ms. Gavin, the prosecutor, and W.L.M.’s attorney, the trial court adopted the recommendation of Ms. Gavin and ordered a Level 3 Disposition and Commitment. (Tpp. 107-108)

Specifically, the court ruled:

I’m going to adopt the recommendations of DJJ. I’m going to sentence him as a Level 3. Going to go ahead and send [W.L.M.] to training school. So you can go ahead and take him, Deputy. And when [W.L.M.] comes out, then [W.L.M.] [sic] will no longer be under our jurisdiction, okay. And you will have your GED, and I know you can do well, all right. But I need you to take that same – that same structure and discipline that they are going to teach you. I need you to bring that back when you come back, okay? All right, I think that’s the only way I can save you from yourself. I’m going to be honest with you. (Tpp. 107-108)

On the Level 3 Disposition and Commitment Order signed on 18 January 2011, the trial court first checked the box ordering that W.L.M. be committed to a YouthDevelopmentCenter for a minimum period of six months, and thereafter “an indefinite commitment.” (Rp. 21) The trial court then crossed this out, initialed the change, and checked Box “b.” so that the order read “and thereafter: a definite period of ______.” (Rp. 21) On 20 January 2011, the trial court amended the Level 3 Disposition and Commitment to make the additional finding that “[t]he juvenile has been adjudicated for a violent or serious offense and Level III is authorized by G.S. 7B-2508.” (Rp. 22) The trial court also ordered that the maximum time that W.L.M. may remain committed is “the juvenile’s eighteenth (18th) birthday.” (Rp. 23)

ARGUMENT

THE TRIAL COURT ERRED IN AMENDING THE LEVEL 3 DISPOSITION AND COMMITMENT ORDER IN W.L.M.’S ABSENCE BECAUSE THE TRIAL COURT CHANGED THE COMMITMENT TERM IN THE AMENDED ORDER TO W.LM.’S EIGHTEENTH BIRTHDAY, AND THIS COMMITMENT TERM WAS NOT SPECIFICALLY STATED IN OPEN COURT AT W.L.M.’S DELINQUENCY HEARING.

Standard of Review

Whether the trial court violated the defendant’s common law right to be present at the time his sentence is imposed presents a question of law. Questions of law are reviewed de novo. E.g., State v. Harris, 198 N.C. App. 371, 377, 679 S.E.2d 464, 468 (2009). “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 & Natural Resources v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004) (citations omitted). Moreover, imposition of sentence in the defendant’s absence is reversible error per se. State v. Davis, 167 N.C. App. 770, 775, 607 S.E.2d 5, 9 (2005).

Argument

The trial court failed to specifically state a commitment term in open court at the delinquency hearing on 18 January 2011. The trial court further failed to provide a maximum commitment term on the original written order signed that same day. (Rp. 21) The trial court then attempted to correct these mistakes by amending the written order on 20 January 2011 in W.L.M.’s absenceto add an additional finding of fact and order that the maximum time that W.L.M. could be committed was his eighteenth birthday. (Rpp. 22-23) This Court has squarely held that a criminal defendant has the “right to be present at the time sentence [is] imposed.” State v. Crumbley, 135 N.C. App. 59, 66, 519 S.E.2d 94, 99 (1999). While criminal proceedings and juvenile delinquency proceedings do not serve the same purpose, rendering a criminal judgment and entering a juvenile disposition serve essentially the same function. Both serve as the final resolution of the case. Here, the trial court’s imposition of the commitment term in W.L.M.’s absence, which was not announced at the hearing on 18 January 2011, constituted reversible error. Therefore, the matter should be remanded for a new dispositional hearing.

Both a criminal judgment and a juvenile disposition serve as the final resolution of the case, because both occur at the conclusion of the proceedings and constitute a final order. Furthermore, “[o]ur courts have consistently recognized that the State has a greater duty to protect the rights of a respondent in a juvenile proceeding than in a criminal prosecution.” In re T.E.F., 359 N.C. 570, 575, 614 S.E.2d 296, 299 (2005) (internal citations omitted) (emphasis in original). Accordingly, just as a criminal defendant has the right to be present at the time that sentence is imposed, a juvenile has the right to be present at the time the commitment term is imposed.

“The right to be present at the time sentence or judgment is pronounced is a common law right, separate and apart from the constitutional or statutory right to be present at the trial.” State v. Pope, 257 N.C. 326, 330, 126 S.E.2d 126, 129 (1962). “The written judgment entered by a trial court constitutes the actual sentence imposed on a criminal defendant; the announcement of judgment in open court is merely the rendering of judgment.” State v. Mims, 180 N.C. App. 403, 413, 637 S.E.2d 244, 250 (2006) (citing Crumbley, 135 N.C. App. at 66, 519 S.E.2d at 99). “A defendant has the right to be present at the time a sentence is imposed.” Id. Therefore, “[w]here the written judgment represents a substantive change from the sentence pronounced by the trial court, and the defendant was not present at the time the written judgment was entered, the sentence should be vacated and the matter remanded for ‘entry of a new judgment.’” Id. (quoting Crumbley, 135 N.C. App. at 66-67, 519 S.E.2d at 99).

In State v. Crumbley, the trial court, in announcing its judgment in open court, was silent on whether the sentences were to run concurrently or consecutively. The trial court’s written judgment, entered outside of the defendant’s presence, provided for consecutive sentences. This Court held that a “substantive change in the sentence could only be made in the Defendant’s presence, where he and/or his attorney would have an opportunity to be heard.” 135 N.C. App. at 97, 519 S.E.2d at 99. Therefore, this Court vacated the judgment and remanded for a new sentencing proceeding.

In State v. Mims, the written judgment sentenced the defendant to nine months of intensive probation, but the transcript was “void of any reference to this sentence.” 180 N.C. App. at 413, 637 S.E.2d at 250. Because the defendant was not present at the time the written judgment was entered, this Court vacated the sentence and remanded the case to the trial court for a new sentencing hearing.

In this case, the trial court’s written Level 3 Disposition and Commitment Order was amended on 20 January 2011 outside of W.L.M.’s presence. The trial court amended the commitment term, ordering that “the maximum time the juvenile may remain committed . . . is the juvenile’s eighteenth (18th) birthday.” (Rp. 23) However, just as in Crumbley and Mims, the transcript is “void of any reference” to this commitment term. The trial court never announced that the maximum time W.L.M. could remain committed was until his eighteenth birthday. At no point in W.L.M.’s presence at the hearing did the trial court announce a commitment term, including a minimum or maximum duration. Moreover, the trial court did not enter a maximum duration in the original written Level 3 Disposition and Commitment Order entered on January 18, 2011 in the presence of W.L.M. (Rp. 21)

Instead, the trial court merely announced that it was sentencing W.L.M. as a Level 3 and was going to send him to “training school.” (Tpp. 107-108) Specifically, the trial court ruled:

After this, the hearing concluded. The trial court never mentionedin W.L.M.’s presence that the maximum time that he could remain committed was his eighteenth birthday.

Finally, imposition of the commitment term in the Amended Order was not a clerical error. A clerical error is “‘[a]n error resulting from a minor mistake or inadvertence, [especially] in writing or copying something on the record, and not from judicial reasoning or determination.’” State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting but not necessarily adopting Black’s Law Dictionary 563 (7th ed. 1999)). However:

[I]n the exercise of power to amend the record of a court, the court is only authorized to make the record correspond to the actual facts and cannot, under the guise of an amendment of its records, correct a judicial error or incorporate anything in the minutes except a recital of what actually occurred.

State v. Cannon, 244 N.C. 399, 404, 94 S.E.2d 339, 342 (1956) (emphasis added). “Where there has been uncertainty in whether an error was ‘clerical,’ the appellate courts have opted to ‘err on the side of caution and resolve [the discrepancy] in the defendant’s favor.’”Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878 (quotingState v. Morston, 336 N.C. 381, 410, 445 S.E.2d 1, 17 (1994)).

In the Amended Order, the trial court made two changes: 1) an additional finding of fact; and 2) an additional order imposing a maximum commitment duration. (Rpp. 22-23) The additional finding of fact provided that “[t]he juvenile has been adjudicated for a violent or serious offense and Level III is authorized by G.S. 7B-2508.” (Rp. 22) This additional finding, which was missing from the original written order, was the correction of a clerical error. In open court, the trial court ordered that it was sentencing W.L.M. as a Level 3. (Tpp. 107-108) This additional finding of fact on the Amended Order was an amendment to the record which “correspond[ed] to the actual facts” of what was announced at the delinquency hearing.

However, imposing a commitment term in the Amended Order was not the correction of a clerical error or an error resulting from a minor mistake. The trial court did not announcea commitment term in W.L.M.’s presence. This amendment ordering a maximum commitment term did not “correspond to the actual facts” to what was announced in open court. (Tpp. 107-109) Rather, determining the maximum time W.L.M. could be committed to a YouthDevelopmentCenter necessarily involved “judicial reasoning or determination.” Moreover, should this Court determine that it is “uncertain” whether this change was the result of a clerical error, the discrepancy should be resolved in W.L.M.’s favor. Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878.

The Amended Level 3 Disposition and Commitment Order imposing the maximum commitment duration was changed outside of W.L.M.’s presence, and constituted a “substantive change” to the disposition announced in open court. Like a criminal defendant, W.L.M. had the right to be present at the time the commitment term was entered. Because W.L.M. was not present at the time the written commitment term was entered, the Level 3 Disposition and Commitment Order must be vacated and remanded for a new dispositional hearing.

IN THE ALTERNATIVE, THE TRIAL COURT ERRED WHEN IT FAILED TO STATE IN OPEN COURT THE PRECISE TERMS OF W.L.M.’S DISPOSITION BECAUSE IT DID NOT STATE THE LENGTH OF W.L.M.’S COMMITMENT TO THE YOUTH DEVELOPMENT CENTER, IN VIOLATION OF N.C. GEN. STAT. § 7B-2512.

Standard of Review

N.C. Gen. Stat. § 7B-2512 (2011) mandates that the trial court announce in open court the duration of the juvenile’s commitment to a YouthDevelopmentCenter. An alleged error in statutory interpretation presents an error of law, which is reviewed de novo. 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 & Natural Resources v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004) (citations omitted). Moreover, the issue of whether a trial court erred by violating a statutory mandate is a question of law and is 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).

Argument

At the conclusion of W.L.M.’s delinquency hearing, the trial court found by the greater weight of the evidence that he had violated the conditions of his probation. (Tp. 107) Adopting the recommendation of W.L.M.’s court counselor, the trial court announced that it was “going to sentence him as a Level 3. Going to go ahead and send [W.L.M.] to training school.” (Tpp. 107-108) The trial court did not announce the precise commitment duration to the YouthDevelopmentCenter. N.C. Gen. Stat. § 7B-2512 (2011) mandates that the trial court “shall state with particularity, both orally and in the written order of disposition, the precise terms of the disposition including the kind [and] duration . . . [.]” Because the trial court failed to state with particularity the precise duration of W.L.M.’s commitment to the YouthDevelopmentCenter in open court, the Level 3 Disposition must be vacated and the matter remanded for a new hearing.