In re A.F
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NO. COA13-610 NORTH CAROLINA COURT OF APPEALS Filed: 17 December 2013 In the Matter of: Mecklenburg County No. 10 JB 294 A.F. Appeal by juvenile from order entered 26 November 2012 by Judge Regan A. Miller in Mecklenburg County District Court. Heard in the Court of Appeals 24 October 2013. Attorney General Roy Cooper, by Assistant Attorney General Adam M. Shestak, for the State. Geeta N. Kapur, for juvenile-appellant. ERVIN, Judge. Juvenile A.F.1 appeals from an order denying his motion to modify adjudication and disposition orders entered on 8 October 2012. On appeal, Aaron argues that the trial court should have granted his modification motion on the grounds that the trial court erroneously assigned him two additional delinquency history points based upon the incorrect assumption that he was still on probation at the time that he committed the offense underlying the challenged disposition order and, in the absence of the 1 assignment of these additional delinquency history A.F. will be referred to throughout the remainder of this opinion as Aaron, a pseudonym used for ease of reading and to protect the juvenile s privacy. -2points, he would not have been subject to the imposition of a Level 3 disposition.2 After careful consideration of Aaron s challenges to the trial court s order in light of the record and the applicable law, we conclude that the trial court s order should be reversed and that this case should be remanded to the Mecklenburg County District Court for further proceedings not inconsistent with this opinion. I. Factual Background On 14 delinquent September juvenile 2010, based Aaron upon a was adjudicated determination to that be a he had committed the offense of misdemeanor breaking and entering. In view of the fact that Aaron had not been previously adjudicated to be a delinquent juvenile, Judge Kimberly Best-Staton imposed a Level 1 disposition, placed Aaron on juvenile probation for a period of nine months, and ordered Aaron to comply with certain 2 Although Aaron challenges the trial court s disposition order in addition to the order denying his modification motion in his brief, he did not make any reference to the disposition order in his notice of appeal. According to N.C.R. App. P. 3(d), a notice of appeal shall designate the judgment or order from which appeal is taken. Proper notice of appeal is a jurisdictional requirement that may not be waived. Chee v. Estes, 117 N.C. App. 450, 452, 451 S.E.2d 349, 350 (1994). For that reason, the appellate court obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken. Id. As a result, the only order that is properly before this Court in light of the wording of Aaron s notice of appeal is the order denying his modification motion. -3specific conditions of probation, such as attending school regularly. On 31 March 2011, Aaron s juvenile court counselor filed a motion for review asserting that Aaron had violated the conditions of his probation as a result of the fact that he had been suspended from school. On 9 May 2011, a juvenile petition was filed alleging that Aaron should be adjudicated to be a delinquent juvenile for committing the offense of possessing a knife on school property. On 13 June 2011, after Aaron admitted the allegations contained in the motion for review and to having committed the offense of possessing a weapon on school property, Judge Best-Staton imposed a Level 2 disposition, extending Aaron s probationary period for an additional six months. On 24 August 2011, Aaron s juvenile court counselor filed a second motion for review alleging that Aaron had violated certain conditions of his probation by failing to comply with his curfew, failing to complete required community service hours, and failing to appropriately participate in court-ordered rehabilitation programs. After Aaron admitted to these alleged probation violations, Judge Best-Staton entered a disposition order on 16 December 2011 in which the period during which Aaron was required to remain on juvenile probation was extended for an additional six months ending on 13 June 2012. -4On 21 March 2012, Aaron s juvenile court counselor filed another motion for review in which she alleged that Aaron had violated the terms and conditions of his probation by being suspended from school and failing to comply with his curfew. Although a hearing concerning the merits of the 21 March 2012 motion for review was calendared for 10 April 2012, the record contains no indication that either Aaron or his parents were served with notice of that hearing. After his failure to attend the 10 April 2012 hearing, the trial court entered an order directing that Aaron be placed in secure custody pending a hearing on the motion for review and issued an order requiring Aaron s father to show cause why he should not be held in contempt. Although another hearing was held on 1 June 2012, neither Aaron nor his father attended this proceeding. On 10 August 2012, Aaron was located and placed in secure custody. A juvenile petition alleging that Aaron should be adjudicated delinquent for committing the offenses of felonious breaking and entering and felonious larceny on 9 August 2012 was filed on 30 August 2012. An adjudicatory hearing was held on 8 October 2012, at which Aaron admitted that he had violated the terms of his probation as alleged in the 21 March 2012 motion for review and that he had committed the offense of felonious -5breaking and entering on 9 August 2012. In exchange for Aaron s admissions, the State voluntarily dismissed the allegation that Aaron should be adjudicated a delinquent juvenile for committing the offense admissions, of felonious the trial larceny. court After calculated accepting Aaron s these delinquency history pursuant to N.C. Gen. Stat. § 7B-2507 by assigning him one point for the delinquency adjudication based upon the commission of the offense of misdemeanor breaking and entering, one point for commission the of the delinquency offense of adjudication possessing a based weapon upon on the school property, and two points based upon a determination that Aaron was on probation at the time that he committed the felonious breaking and entering for which disposition was being entered. In light court of this delinquency history calculation, the trial had the authority to classify Aaron as either a Level 2 or a Level 3 offender. At the conclusion of the 8 October 2012 hearing, the trial court determined that a Level 3 disposition order should be entered and ordered that Aaron be committed to the custody Delinquency center for of the Prevention an Department for indefinite eighteenth birthday. of placement period Juvenile in not a to Justice youth extend and development past his -6On 13 November 2012, Aaron filed a motion for modification of the 8 October 2012 adjudication and disposition orders in which he asserted that, in light of the fact that he was not on probation when he committed the offense of felonious breaking or entering on assigned 9 the August two 2012, the additional trial points court had associated erroneously with the commission of an offense while on probation in calculating his delinquency history level. For that reason, Aaron further contended that he only should have been assigned two delinquency history points and that the trial court lacked the authority to impose a Level 3 disposition or order that he be placed in a youth development center. 2012, the trial court modification motion. After a hearing held on 26 November entered an order denying Aaron s Aaron noted an appeal to this Court from the trial court s order. II. Substantive Legal Analysis In his brief, Aaron argues that the trial court erred by denying his modification motion. More specifically, Aaron contends that the record reflects that he was not, contrary to the trial court s calculation of his delinquency history level, on probation on the date upon which he committed the felonious breaking or entering which led to the entry of the challenged disposition order and that, except for the erroneous assignment -7of these two delinquency history points, he was not subject to the imposition of a Level 3 disposition. Aaron s argument has merit. A. Modification Motions Upon a motion or petition and after notice, the court may conduct a review hearing to determine whether the order of the court is in the best interests of the juvenile, and the court may modify or vacate the order in light circumstances or the needs of the juvenile. of changes in In re J.S.W., 211 N.C. App. 620, 623-24, 711 S.E.2d 471, 473 (2011) (quoting N.C. Gen. Stat. proceedings, § 7B-2600(a)(2009)). a trial court may In juvenile reduce the delinquency nature or the duration of the disposition on the basis that it was imposed in an illegal manner or is unduly severe with reference to the seriousness of the offense, the culpability of the juvenile, or the dispositions offenses. given to juveniles convicted N.C. Gen. Stat. § 7B-2600(b). of similar As a result, a trial court has the authority to modify an earlier disposition order pursuant to N.C. Gen. Stat. § 7B-2600 in the event that the disposition reflected in that order was applicable legal requirements. B. Standard of Review inconsistent with -8As we have already noted, N.C. Gen. Stat. § 7B-2600(a) provides that the court may conduct a review hearing . . . and may modify or vacate the order. . . . [T]he use of [the word] may generally connotes permissive or discretionary action and does not mandate or compel a particular act. Campbell v. First Baptist Church of the City of Durham, 298 N.C. 476, 483, 259 S.E.2d 558, 563 (1979). In the event that the result reached with respect to a particular issue is committed to the sound discretion of the trial court, appellate review is limited to determining whether the trial court abused that discretion. White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). A [trial] court by definition abuses its discretion when it makes an error of law. Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047, 135 L. Ed. 2d 392, 414 (1996) (cited with approval in State v. Rhodes, __ N.C. __, __, 743 S.E.2d 37, 39 (2013)). As a result, although N.C. Gen. Stat. § 7B-2600(a) is couched in discretionary language and although many decisions that a trial court is authorized to make in ruling upon a modification motion made pursuant to N.C. Gen. Stat. § 7B-2600 would be analyzed by this Court on the basis of an abuse of discretion standard of review, the extent to which the trial court exercised its discretion on the basis of an incorrect understanding of the applicable law raises an issue of law -9subject to de novo review on appeal. Falk Integrated Technologies, Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999) (stating that subject to de novo review ). [a]lleged errors of law are Thus, given that Aaron s challenge to the denial of his modification motion rests upon a contention that the trial court lacked the statutory authority to impose a Level 3 disposition or to order that he be placed in a youth development center for an indefinite term not to exceed his eighteenth birthday, we will review his challenge to the trial court s order using a de novo standard of review. C. Delinquency History Calculation According to N.C. Gen. Stat. § 7B-2508, a trial court must establish the adjudication disposition of delinquency to be imposed based upon following the an juvenile s delinquency history level and the level at which the offense upon which the adjudication of delinquency is based. The delinquency history level for a delinquent juvenile is determined by calculating the sum of the points assigned to each of the juvenile s prior adjudications and to the juvenile s probation status, if any, that the court finds to have been proved in accordance with this section. N.C. Gen. Stat. § 7B-2507(a)(2012). are assigned on the following basis: Delinquency history points -10(1) For each prior adjudication of a Class A through E felony offense, 4 points. (2) For each prior adjudication of a Class F through I felony offense or Class A1 misdemeanor offense, 2 points. (3) For each prior adjudication of a Class 1, 2, or 3 misdemeanor offense, 1 point. (4) If the juvenile was on probation at the time of offense, 2 points. N.C. Gen. Stat. § 7B-2507(b). After the number of delinquency history points has been determined, a juvenile who has been adjudicated delinquent is assigned a particular delinquency history level depending on the number of points which he or she has accumulated, with a juvenile having a low delinquency history level if he or she has no more than one point, a medium delinquency history level if he or she has either two or three points, and a high delinquency history level if he or she has at least four points. N.C. Gen. Stat. § 7B-2507(c). In light of the delinquency history level which the trial court determines to be appropriate pursuant to N.C. Gen. Stat. § 7B-2507(a) and the extent to which the offense for the commission of which the juvenile has been adjudicated to be a delinquent juvenile is determined to be violent, serious, or categories are defined in N.C. Gen. Stat. minor, § as those 7B-2508(a), the trial court must then determine whether the juvenile should be -11subject to a Level 1, or community, disposition; a Level 2, or intermediate, disposition; or a Level 3, or commitment level, disposition using the dispositional chart set out in N.C. Gen. Stat. § 7B-2508(f). In re Allison, 143 N.C. App. 586, 597, 547 S.E.2d 169, 175-76 (2001). A juvenile adjudicated delinquent for committing felonious breaking or entering, such as Aaron, is only subject to a Level 3 disposition in the event that he or she has a high delinquency history. N.C. Gen. Stat. § 7B- 2508(f). At court the 8 properly October 2012 assigned dispositional Aaron one hearing, based on the commission of a prior misdemeanor trial history delinquency the point breaking and entering and another delinquency history point for possessing a weapon on school grounds. Aaron two delinquency In addition, the trial court assigned history points on the basis of a determination that Aaron was on probation on 9 August 2012, the date upon which he committed the felonious breaking or entering offense which led to dispositional decision. the entry of the trial court s As a result, the trial court awarded Aaron a total of four delinquency history points, giving Aaron a high delinquency history as that term is defined in N.C. Gen. Stat. § 7B-2507(c). In light of the trial court s determination that Aaron had a high delinquency history level and the fact -12that felonious breaking or entering, which is a Class H felony, is classified as a serious offense for purposes of N.C. Gen. Stat. § 7B-2508(a)(2), the trial court concluded that it was authorized to impose a Level 3 disposition and to order that Aaron be committed to a youth development center for an indefinite period not to exceed his eighteenth birthday pursuant to N.C. Gen. Stat. § 7B-2508(f). According to Aaron, the trial court erred by awarding him two delinquency history points for committing an offense while on probation on the grounds that his probation had expired on 13 June 2012 and had never been extended by the trial court, a fact which precluded the assignment of the two additional delinquency history points erroneously calculation, points, in question. assigned Aaron giving him After points the removal of these from only a medium delinquency history two had his prior delinquency history delinquency purposes of N.C. Gen. Stat. § 7B-2507(c). history level for As a result of the fact that juveniles with a medium delinquency history level who commit a serious disposition, authority to Aaron impose offense contends a Level are only that the 3 subject trial disposition to court and to a Level 2 lacked the order his placement in a youth development center and erred by failing to -13correct this error in the course of ruling on his modification motion. Although the State does not deny the validity of Aaron s contention that the record is completely devoid of any explicit indication that Aaron s probation was ever extended past 13 June 2012 or that Aaron s challenge to the trial court s dispositional decision would be meritorious in the event that his probation committed the had expired felonious prior to the date breaking or entering upon upon which which he the trial court s dispositional order rested, it argues that the trial court did not err by denying Aaron s motion on the grounds that the trial court extended Aaron s probation on 8 October 2012 immediately prior to the making of the determination that the two disputed delinquency history points should be assigned to Aaron. In support of this argument, the State directs our attention to In re T.J., in which this Court held that a trial court has the authority to modify a juvenile s probation within a reasonable amount of time after its expiration pursuant to N.C. Gen. Stat. § 7B-2510, In re T.J., 146 N.C. App. 605, 607, 553 S.E.2d constitutes 418, a 419 (2001), reasonable with amount the of determination time dependent of what on the amount of time necessary for the court to schedule and for the parties to prepare for such a hearing. Id. Although we -14acknowledged in T.J. that a trial judge had the discretion to modify a juvenile s probation within a reasonable time after expiration, T.J., 146 N.C. App. at 608, 553 S.E.2d at 420, we reached that conclusion in a context in which the trial court clearly exercised the extension authority that we recognized in that decision and in which the authority in question was for the purpose of extending the juvenile s probation in response to a probation violation which had been the subject of a motion for review filed prior to the expiration of the juvenile s initial probationary period. In spite authority of under the T.J. fact to that extend the trial Aaron s court had probation limited after the expiration of his probationary period, the extension argument upon which the State relies fails because the trial court never actually extended Aaron s probation in this case. At the hearing held for the purpose of considering Aaron s modification motion, the trial court acknowledged that it had awarded the challenged delinquency history points to Aaron without having specifically extended his probation. stated that the assumption here Instead, the trial court is that I [extended the probationary period] at the October hearing by assigning him the additional two points, explaining that: I know what we did do, and I have to level with that . . . . that I signed from the two -15points thinking that that was necessary because he was still on probation[.] And so, therefore, inherently . . . I had ruled that the probationary period had extended and the two points should have been assigned. Cause otherwise . . . I couldn t have assigned those two points without making that determination. So I m stuck with that. I guess, I m stuck with that. Although the State asserts that these explanatory comments demonstrate that, since the trial court decided to assign Aaron two additional determination delinquency that Aaron s history probation points had been based on extended, a the trial court must have extended his probation, we do not find this argument persuasive. Aside from the fact that the extension of Aaron s probation upon which the State relies was, at best, implicit, the State has not cited, and we have not during our own research identified, any authority supporting a conclusion that a trial judge has the authority to determine on a retroactive basis that it had extended a juvenile s probation and, based delinquency upon history that determination, points for the to assign commission of additional an during the retroactively extended probationary period. offense As a result of the obvious risk of injustice which would inhere in allowing the assignment of additional delinquency history points based upon such an implied retroactive extension of probation and the complete absence of any statutory support for such a -16practice, we decline to accept the State s argument to the effect that the trial court was authorized to add two additional points to Aaron s delinquency history calculation on the theory that the trial court implicitly and retroactively extended Aaron s probationary period to include the date upon which he committed the offense underlying the challenged dispositional order. In addition to advancing this implicit extension argument, the State expressly also contends extend that Aaron s the probation. assertion, the State directs our Aaron acknowledged in his trial court in fact, support In did, of this attention to the transcript of admission fact that that he understood that his delinquency history could subject him to the imposition of a Level 3 disposition, a disposition level that was only made possible by the assignment of the additional two delinquency points which he now challenges as having been erroneously utilized to determine his delinquency history level. In addition, the State notes Aaron s prior delinquency disposition hearing. that the parties stipulated to history at the 8 October 2012 We do not believe that either of these facts establish that the trial court actually extended Aaron s probationary period. -17According to N.C. Gen. Stat. § 7B-2510(d), [t]he conditions or duration of probation may be modified only as provided in hearing. this Subchapter and only after N.C. Gen. Stat. § 7B-2510(d). notice and a The fact that Aaron acknowledged that he was subject to the imposition of a Level 3 disposition or the fact that Aaron conceded the existence of the challenged delinquency history points prior to the entry of the challenged disposition order does not satisfy the statutory requirements for the extension of his probation set out in N.C. Gen. Stat. § 7B-2510 given that no hearing was ever held concerning the extent, if any, to which Aaron s probation should be extended. Simply put, we cannot accept the State s assertion that Aaron s understanding of the disposition level to which he might be subject or the content of his prior delinquency history constituted requirements sufficient applicable probationary period. to compliance the with extension of the statutory a juvenile s Thus, we do not find this aspect of the State s defense of the trial court s order persuasive either. The ultimate difficulty with the defense of the trial court s decision which the State has mounted on appeal in this case is simply that, without having ever extended Aaron s probation, the trial court assigned an additional two points in calculating Aaron s delinquency history. In the absence of the -18assignment of those delinquency history points, the trial court had no authority to impose a Level 3 disposition and order that Aaron be placed in a youth development center. modification motion, the trial court In denying the appears to have acknowledged the fact that Aaron s probation was never extended, stating that: [I]f you had asked me then, I would have probably specifically made a ruling not to extend the probationary period, not to have signed the two additional points, and we would be . . . stuck with a Level Two. . . . Cause I might have said, well, that doesn t seem fair that he wasn t on notice at the time of the August offense that he was still on probation cause we hadn t made that determination. In spite of its acknowledgement that Aaron s probation had not been extended, that Aaron was not actually on probation at the time that he committed the felonious breaking or entering for which disposition was being entered, and that it had had no authority to impose a Level 3 disposition in the absence of the assignment of the challenged delinquency history trial court denied Aaron s modification motion. points, the In making this determination, the trial court failed to correct an error of law embodied result, in the given 8 that October the 2012 trial dispositional court failed order. to As correct a an unlawfully entered disposition order, we hold that the trial court erred by denying Aaron s modification motion. -19III. Conclusion Thus, for the reasons set forth above, we conclude that the trial court erred by denying Aaron s modification motion. result, the trial court s order should be, and hereby As a is, reversed, and this case should be, and hereby is, remanded to the Mecklenburg County District Court for further proceedings not inconsistent with this opinion, including the entry of a new disposition order which is based upon a correct delinquency history calculation and which imposes a Level 2, rather than a Level 3, disposition. REVERSED AND REMANDED. Judges GEER and STEPHENS concur.
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