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NO. COA15-785 FIFTEEN-B JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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IN THE MATTER OF:)
)From Orange County
D.B.)
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JUVENILE-APPELLANT’S BRIEF
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INDEX
TABLE OF AUTHORITIES...... iv
ISSUES PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW 4
STATEMENT OF THE FACTS...... 4
STANDARDS OF REVIEW...... 9
ARGUMENT...... 10
I.THE TRIAL COURT ERRED BY DENYING D.B.’S MOTION TO CONTINUE THE DISPOSITIONAL HEARING AND THEREBY DEPRIVED D.B. OF AN OPPORTUNITY TO GATHER AND PRESENT EVIDENCE OF AN ALTERNATIVE DISPOSITION 10
A.The trial court was required to continue disposition so D.B. would have time to gather evidence of an alternative disposition 10
B.Assuming arguendo that the trial court had discretion over continuing disposition, the court abused that discretion 15
C.The denial of the continuance motion prejudiced D.B. 18
II.THE TRIAL COURT ERRED BY COMMITTING D.B. TO A LEVEL 3 DISPOSITION BECAUSE THE STATE FAILED TO PROVE THAT D.B. HAD FOUR OR MORE NON-OVERLAPPING ADJUDICATIONS ON HIS RECORD 19
A.Applicable Law...... 19
B.The number and type of D.B.’s prior adjudications were necessary to determine the disposition of his case 21
C.The State failed to satisfy its burden of proof at the January 20, 2015 hearing 23
D.Conclusion...... 25
III.THE TRIAL COURT ERRED BY COMMITTING D.B. TO A LEVEL 3 DISPOSITION BECAUSE IT ERRONEOUSLY BELIEVED THAT A LEVEL 3 DISPOSITION WAS MANDATED BY THE JUVENILE CODE AND FAILED TO DETERMINE WHETHER SUCH A DISPOSITION WAS THE MOST APPROPRIATE ALTERNATIVE FOR D.B. 26
A.The trial court misapprehended its dispositional authority under N.C. Gen. Stat. § 7B-2508 26
B.The trial court failed to establish that a Level 3 disposition was the most appropriate disposition for D.B. 31
C.Conclusion...... 33
CONCLUSION...... 34
CERTIFICATE OF COMPLIANCE WITH RULE 28(J)(2)... 35
CERTIFICATE OF SERVICE...... 35
TABLE OF AUTHORITIES
Cases
Campbell v. Church,
298 N.C. 476, 259 S.E.2d 558 (1979)...... 28
Capps v. Lynch,
253 N.C. 18, 116 S.E.2d 137 (1960)...... 29
In re A.F.,
___ N.C. App. ___, 752 S.E.2d 245 (2013).....10, 19
In re Allison,
143 N.C. App. 586, 547 S.E.2d 169 (2001)...... 20
In re Brownlee,
301 N.C. 532, 272 S.E.2d 861 (1981)...... 27
In re Carter,
125 N.C. App. 140, 479 S.E.2d 284 (1997)...... 14
In re D.A.S.,
183 N.C. App. 107, 643 S.E.2d 660 (2007)...... 13
In re D.R.H.,
194 N.C. App. 166, 668 S.E.2d 919 (2008)...... 21
In re Doe,
329 N.C. 743, 407 S.E.2d 798 (1991)...... 27
In re J.L.,
199 N.C. App. 605, 685 S.E.2d 11 (2009)...... 12
In re K.C.,
___ N.C. App. ___, 742 S.E.2d 239, disc. rev. denied,
367 N.C. 218, 747 S.E.2d 530 (2013)...... 30, 31
In re Meyers,
25 N.C. App. 555, 214 S.E. 2d 268 (1975)...... 14
In re Schrimpsher,
143 N.C. App. 461, 546 S.E.2d 407 (2001)...... 9, 33
In re T.E.F.,
359 N.C. 570, 614 S.E.2d 296 (2005)...... 14
In re Vinson,
298 N.C. 640, 260 S.E.2d 591 (1979)...... 11
In re V.M.,
___ N.C. App. ___, 712 S.E.2d 213 (2011).....31, 32
McKoy v. McKoy,
202 N.C. App. 509, 689 S.E.2d 590 (2010)...... 9
State v. Bagley,
183 N.C. App. 514, 644 S.E.2d 615 (2007)...... 9
State v. Bartley,
156 N.C. App. 490, 577 S.E.2d 319 (2003)...... 21
State v. Biber,
365 N.C. 162, 712 S.E.2d 874 (2011)...... 9
State v. Buddington,
210 N.C. App. 252, 707 S.E.2d 655 (2011)...... 25
State v. Denning,
316 N.C. 523, 342 S.E.2d 855 (1986)...... 25
State v. English,
171 N.C. App. 277, 614 S.E.2d 405 (2005)...... 21
State v. Eubanks,
151 N.C. App. 499, 565 S.E.2d 738 (2002)...... 21
State v. Hennis,
323 N.C. 279, 372 S.E.2d 523 (1988)...... 9, 18
State v. Hurley,
180 N.C. App. 680, 637 S.E.2d 919 (2006)...... 24
State v. Johnson,
164 N.C. App. 1, 595 S.E.2d 176 (2004)...... 21
State v. Lang,
301 N.C. 508, 272 S.E.2d 123 (1980)...... 15, 29
State v. McIlwaine,
169 N.C. App. 397, 610 S.E.2d 399 (2005)...... 26
State v. Nunez,
204 N.C. App. 164, 693 S.E.2d 223 (2010)...... 15
State v. Powell,
254 N.C. 231, 118 S.E.2d 617 (1961)...... 25
State v. Quick,
170 N.C. App. 166, 611 S.E.2d 864 (2005)...... 26
State v. Replogle,
181 N.C. App. 579, 640 S.E.2d 757 (2007)...... 25
State v. Riley,
159 N.C. App. 546, 583 S.E.2d 379 (2003)...... 21
State v. Tucker,
317 N.C. 532, 346 S.E.2d 417 (1986)...... 18
Sutton v. N.C. Dep’t of Labor,
132 N.C. App. 387, 511 S.E.2d 340 (1999)...... 9
Young v. Woodall,
343 N.C. 459, 471 S.E.2d 357 (1996)...... 14
Statutes
N.C. Gen. Stat. § 7B-1500...... 33
N.C. Gen. Stat. § 7B-2413...... 9, 10, 12, 13
N.C. Gen. Stat. § 7B-2501...... passim
N.C. Gen. Stat. § 7B-2506...... 19, 27
N.C. Gen. Stat. § 7B-2507...... passim
N.C. Gen. Stat. § 7B-2508...... passim
N.C. Gen. Stat. § 7B-2512...... passim
N.C. Gen. Stat. § 7B-2513...... 18
N.C. Gen. Stat. § 7B-2602...... 4
N.C. Gen. Stat. §7B-2604...... 4
N.C. Gen. Stat. § 14-223...... 15, 22, 28
N.C. Gen. Stat. § 15A-1340.14...... 21, 26
N.C. Gen. Stat. § 15A-1443...... 18
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NO. COA15-785 FIFTEEN-B JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
IN THE MATTER OF:)
)From Orange County
D.B.)
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JUVENILE-APPELLANT’S BRIEF
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ISSUES Presented
- Did THE TRIAL COURT ERR BY DENYING D.B.’S MOTION TO CONTINUE THE DISPOSITIONAL HEARING AND THEREBY DEPRIVE D.B. OF AN OPPORTUNITY TO GATHER AND PRESENT EVIDENCE OF AN ALTERNATIVE DISPOSITION?
- Did THE TRIAL COURT ERR BY COMMITTING D.B. TO A LEVEL 3 DISPOSITION BECAUSE THE STATE FAILED TO PROVE THAT D.B. HAD FOUR OR MORE NON-OVERLAPPING ADJUDICATIONS ON HIS RECORD?
- Did THE TRIAL COURT ERR BY COMMITTING D.B. TO A LEVEL 3 DISPOSITION BECAUSE IT ERRONEOUSLY BELIEVED THAT A LEVEL 3 DISPOSITION WAS MANDATED BY THE JUVENILE CODE AND FAILED TO DETERMINE WHETHER SUCH A DISPOSITION WAS THE MOST APPROPRIATE ALTERNATIVE FOR D.B?
Statement of the Case
On October 25, 2013, the chief court counselor for Orange County approved the filing of a petition against D.B. alleging that he committed misdemeanor possession of stolen property. (R pp 3-4) The State then called the case for adjudication on December 3, 2013 before the Honorable Jay Bryan. At the hearing, D.B. admitted responsibility to the possession of stolen property petition. (R pp 5-6) Judge Bryan then adjudicated D.B. delinquent. (R pp 7-8) On February 4, 2014, the State called the case for disposition before the Honorable Beverly Scarlett. At the conclusion of the hearing, Judge Scarlett placed D.B. on probation for 12 months. (R pp 46-50)
On September 15, 2014, the chief court counselor for Alamance County approved the filing of petitions against D.B. for consumption of alcohol under the age of 19 and resisting a public officer. (R pp 55-58) The case came on for an adjudication hearing on October 2, 2014 before the Honorable Kathryn W. Overby. During the hearing, D.B. entered into a plea agreement with the State. (R pp 61-62) As part of the agreement, D.B. admitted responsibility to the resisting a public officer petition. In exchange, the State dismissed the petition for consumption of alcohol under the age of 19. Judge Overby then adjudicated D.B. delinquent for resisting a public officer and transferred the case to Orange County for disposition. (R pp 61-64)
On November 5, 2014, the chief court counselor for Orange County approved the filing of petitions against D.B. for felony breaking or entering and felony larceny. (R pp 67-68) On November 14, 2014, an Orange County juvenile court counselor filed a motion for review alleging that D.B. violated the terms of probation ordered by Judge Scarlett in the February 4, 2014 dispositional order. (R p 72) An Orange County deputy clerk then scheduled a hearing on the motion for review for December 2, 2014. (R p 73) However, D.B. failed to appear at the hearing. (R p 76, 2T p 3) D.B. next appeared in court on January 15, 2015 for a secure custody hearing before the Honorable Charles Anderson. At the conclusion of the hearing, Judge Anderson placed D.B. in secure custody and continued the case to January 20, 2015. (R p 78)
On January 20, 2015, D.B. appeared in court before the Honorable Joseph Buckner. At the conclusion of the hearing, Judge Buckner entered a Level III disposition and committed D.B. to a youth development center for a minimum of six months. (3T p 6, R pp 105-10)[1] Judge Buckner also dismissed the felony breaking or entering and felony larceny petitions. (R pp 111-12) D.B. then gave written notice of appeal on January 28, 2015. (R pp 113-14)
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
D.B. appeals pursuant to N.C. Gen. Stat. §§ 7B-2602 and 7B-2604 from a final order entered in Orange County District Court.
Statement of the Facts
During the January 15, 2015 secure custody hearing before Judge Anderson, D.B.’s attorney noted that the case was set to be heard again on January 20, 2015 and that she had been informed that the juvenile court counselor planned to recommend that D.B. be committed to a youth development center. (2T p 5) D.B.’s attorney requested that the case only be set for a probable cause hearing on the larceny and breaking or entering petitions because she would be unable to come up with an alternative disposition for the probation case during the intervening five-day period. (2T p 5) She explained that she would only be in her office one day before the January 20, 2015 hearing and that there was a “50-50 chance” that she would be involved in a jury trial in superior court. (2T p 6) Judge Anderson responded that he was not sure there was much that he could do to address her concerns. (2T p 6) In his written order, he scheduled the case for a “detention review hearing and a probable cause hearing” for January 20, 2015. (R p 78)
At the beginning of the January 20, 2015 hearing before Judge Buckner, the prosecutor stated that he had called the case for a hearing on the motion for review filed against D.B. (3T p 2) He also asked the court to adopt the juvenile court counselor’s recommendation for disposition. Judge Buckner then asked what the court counselor’s recommendation was. The court counselor first stated that the case was being heard for disposition of the resisting a public officer adjudication from Alamance County. (3T p 2) She also stated that the adjudication for resisting a public officer constituted a violation of D.B.’s probation. (3T p 3) The court counselor then recommended that D.B. be placed in a youth development center “because of this disposition and the probation violation and 12 points.” (3T p 3)
In response to the court counselor’s recommendation, D.B.’s attorney explained that she thought the case was set only for a probable cause hearing on the larceny and breaking or entering charges. She also explained that D.B.’s mother was in court with a member of the Muslim community and that D.B.’s mother had been “working through her faith to see if the community can come up with some sort of alternative” to committing D.B. to a youth development center. (3T p 4) The defense attorney then requested approximately two weeks to present an alternative disposition for D.B. (3T p 4) Judge Buckner responded, “But that means [D.B.]’s got to stay in detention until then.” The defense attorney said that D.B. understood that he would have to stay in detention, but she “just want[ed] the chance to fight for an alternative.” (3T pp 4-5) Judge Buckner said that a youth development center would have more programming options for D.B. and that he would get out “with a little more closure.” The defense attorney maintained that D.B.’s mother wanted “the opportunity to present an alternative to the Court, and that’s what I am asking for opportunity to do.” (3T p 5)
Judge Buckner then stated, “Unfortunately, because of the number of points, I don’t think we can do that. I am going to givehim the commitment. [The prosecutor] is going to dismiss his other cases.” (3T p 6) An unidentified male then said, “Do you want to read the report, Your Honor?” Judge Buckner responded, “Uh-huh, but I’ve heard [the juvenile court counselor’s] recommendations, sir. You can have -- good luck.” (3T p 6)
The same day -- January 20, 2015 -- Judge Buckner entered a dispositional order, which noted that when D.B. committed the offense of resisting a public officer, he was on probation under dispositional orders entered on February 4, 2014, July 2, 2013, July 18, 2012, and March 6, 2012. (R pp 105-06) The order also indicated that the court had not received or considered a predisposition report, a risk assessment, or a needs assessment. (R pp 105-06) Section 2 of the order stated that D.B. had previously been adjudicated delinquent for felony larceny on February 15, 2013; breaking or entering a motor vehicle on July 18, 2012; and misdemeanor larceny and misdemeanor breaking or entering on May 19, 2010. (R pp 105-06) Section 5 of the order stated that D.B. had also been adjudicated delinquent for misdemeanor larceny and possession of a weapon on school property on November 17, 2010, shoplifting on July 20, 2011; one count of failure to stop at scene of an accident, two counts of misdemeanor larceny, and one count of no operator’s license February 15, 2012; and possession of stolen property on July 18, 2012 and July 2, 2013. (R pp 105-06) Judge Buckner also checked a box stating that D.B. had four or more prior offenses of delinquency. (R pp 105-06)
On January 21, 2015, Judge Buckner entered an amended dispositional order, which noted that when D.B. committed the offense of resisting a public officer, he was on probation under a dispositional order entered in February 4, 2014. (R pp 107-08) The order also stated that Judge Buckner had received and considered a predisposition report, a risk assessment, and a needs assessment. (R pp 107-08) Section 2 of the order stated that D.B. had previously been adjudicated delinquent for felony larceny on February 15, 2012; breaking or entering a motor vehicle on July 18, 2012; misdemeanor larceny and misdemeanor breaking or entering on May 19, 2010; and misdemeanor larceny on November 17, 2010. (R pp 107-08) Section 5 of the order stated that D.B. had also been adjudicated delinquent for shoplifting on July 20, 2011; possession of stolen property on July 2, 2013; and possession of stolen property on December 3, 2013. (R pp 107-08) As part of the order, Judge Buckner checked a box indicating that D.B. had been adjudicated delinquent for four or more prior offenses. (R pp 107-08)
Judge Buckner then entered an additional amended dispositional order on January 28, 2015. (R pp 109-110) The order stated that when D.B. committed the offense of resisting a public officer, he was on probation under a dispositional order entered on February 4, 2014. (R pp 109-110) The order also indicated that Judge Buckner had not received or considered a predisposition report, a risk assessment, or a needs assessment. (R pp 109-110) Section 2 of the order stated that D.B. had previously been adjudicated delinquent for felony larceny on February 15, 2012; breaking or entering a motor vehicle on July 18, 2012; misdemeanor larceny and misdemeanor breaking or entering on May 19, 2010; and misdemeanor larceny on November 17, 2010. (R pp 109-10) Section 5 of the order stated that D.B. had also been adjudicated delinquent for shoplifting on July 20, 2011; possession of stolen property on July 2, 2013; and possession of stolen property on December 3, 2013. (R pp 109-10) Finally, Judge Buckner checked a box on the first page of the order stating that D.B. had four or more prior offenses of delinquency. (R pp 109-10)
STANDARDS OF REVIEW
The standard of review for Issues I and II is de novo. In Issue I, D.B. asserts that the trial court improperly denied his motion to continue. Resolution of Issue I depends on how this Court construes N.C. Gen. Stat. §§ 7B-2413 and 7B-2501. “Issues of statutory construction are questions of law….” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). In Issue II, D.B. asserts that the State failed to present sufficient evidence to support a Level 3 disposition. Whether the evidence was sufficient to support the trial court’s ruling is a question of law. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). Questions of law are reviewed de novo on appeal. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). Under the de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for the lower court’s. Sutton v. N.C. Dep’t of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 340 (1999).
The standard of review for Issue III is abuse of discretion. D.B. asserts in Issue III that the trial court improperly entered a Level III disposition. Dispositional orders are reviewed on appeal for abuse of discretion. In re Schrimpsher, 143 N.C. App. 461, 466, 546 S.E.2d 407, 412 (2001). Abuse of discretion arises when the court’s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
ARGUMENT
- THE trial court erred by denying D.B.’s motion to continue the dispositional hearing and THEREBY deprived D.B. of an opportunity to gather and present evidence of an alternative disposition.
The trial court erroneously denied the continuance motion filed by the defense attorney in this case. Under case law interpreting the applicable statutes, the trial court was required to grant a continuance. Moreover, the trial court indicated that it denied the motion because it erroneously believed it had no discretion over the type of disposition that it entered. Finally, the defense attorney made the motion for a valid reason: she needed additional time to gather and present evidence of an alternative to committing D.B. to a youth development center. Accordingly, as the trial court improperly denied the continuance motion, this case must be remanded for a new dispositional hearing.
A.The trial court was required to continue disposition so D.B. would have time to gather evidence of an alternative disposition.
After a juvenile has been adjudicated delinquent, the case must proceed to disposition. In re A.F., ___ N.C. App. ___, ___, 752 S.E.2d 245, 249 (2013). If the State prepares a predisposition report in preparation for the dispositional hearing, the court must give the juvenile an opportunity to “offer evidence in rebuttal….” N.C. Gen. Stat. § 7B-2413. If the State does not prepare a predisposition report, the court must still grant the juvenile “an opportunity to present evidence….” N.C. Gen. Stat. § 7B-2501(b).
Based on case law, it appears that both this Court and our Supreme Court have taken two different approaches to continuing dispositional hearings. Under the first approach, a continuance is mandatory if the juvenile requests one. Specifically, in In re Vinson, 298 N.C. 640, 260 S.E.2d 591 (1979), the juvenile argued that the trial court erred by immediately holding a dispositional hearing after adjudicating him delinquent. The Supreme Court held that the trial court’s decision was not improper under the statutes in effect in 1978. Id. at 660, 260 S.E.2d at 604. However, the Court went on to note that the General Assembly had recently enacted a new version of the Juvenile Code. Id. at 661, 260 S.E.2d at 604. The Court believed it was necessary to discuss the new version because the outcome of the appeal would have been different “had the new Code been in effect at the time of this respondent’s hearing.” Id.
As part of its analysis of the new version of the Juvenile Code, the Court identified two new provisions requiring the trial court to give the juvenile an opportunity to “offer evidence in rebuttal” to predisposition reports and to “present evidence” at the dispositional hearing. Id. at 661-62, 260 S.E.2d at 605. The Court then stated that the provisions “make clear the legislative intent that the dispositional hearing must be continued for the respondent to present evidence when he requests such a continuance.” Id. at 662, 260 S.E.2d at 605 (emphasis in original). The Court further stated that before the trial court can enter a dispositional order under the new version, “it must, upon specific request of the juvenile or his counsel, continue the dispositional hearing for a reasonable time to allow the juvenile to present evidence to the court about his disposition.” Id.
Since the Court issued its opinion in Vinson, the General Assembly has enacted a major reform of the Juvenile Code in 1998, Session Law 1998-202, and smaller reforms in later years. See, e.g., Session Law 2001-208, Session Law 2003-62, 2009-311. However, the current version of the Juvenile Code retains the same text that the Supreme Court interpreted in Vinson to require the district court to continue the dispositional hearing when the juvenile requests more time. See N.C. Gen. Stat. §§ 7B-2413 and 7B-2501.
In addition to Vinson, this Court also took a mandatory approach to continuances for dispositional hearings in In re J.L., 199 N.C. App. 605, 685 S.E.2d 11 (2009). There, the juvenile argued that the trial court erred by denying his motion to continue the dispositional hearing. In support of the motion, the juvenile argued that he had not had the opportunity to review the predisposition report. Id. at 609, 685 S.E.2d at 14. Citing N.C. Gen. Stat. § 7B-2501(b), this Court agreed with the juvenile and held that the trial court should have granted a continuance “in order to give the [the juvenile] an opportunity to gather evidence” for the dispositional hearing. Id. at 609, 685 S.E.2d at 14.
In contrast to Vinson and J.L., this Court has also taken a discretionary approach to continuances for dispositional hearings in In re D.A.S., 183 N.C. App. 107, 643 S.E.2d 660 (2007). There, the juvenile requested a continuance for the dispositional hearing in order to obtain a prior psychological evaluation for the juvenile. Id. at 111, 643 S.E.2d at 662. Citing Vinson, this Court stated that the trial court “may” continue the dispositional hearing to enable the juvenile to gather and present evidence. Id. This Court then held that the trial court properly denied the juvenile’s request because “[t]he juvenile’s more recent psychological information was included in his Juvenile-Family Data Sheet.” Id. at 111, 643 S.E.2d at 663.