Opinion
No. 06-604.
FILED April 3, 2007.
Durham County No. 05-J-67.
Appeal by Respondent from order entered 23 February 2006 by Judge Marcia H. Morey in District Court, Durham County. Heard in the Court of Appeals 10 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General P. Bly Hall, for the State. Peter Wood for Respondent-Appellant.
Respondent B.P. (the juvenile) was adjudicated a delinquent juvenile on 26 July 2005 for having committed felony trafficking in cocaine, an offense classified as serious under N.C. Gen. Stat. § 7B-2508(a)(2). The trial court entered a Level 2 disposition that (1) placed the juvenile on electronic monitoring, (2) allowed the juvenile to be confined on an intermittent basis at his court counselor's discretion, and (3) required the juvenile to perform fifty hours of community service. The trial court also placed the juvenile on probation under certain conditions.
Kathryn Y. Moore (Ms. Moore), the juvenile's court counselor, alleged probation violations in a motion for review filed 14 December 2005. Ms. Moore alleged the juvenile was in violation of his probation because he had been suspended from school, had not cooperated with mental health screenings and recommendations, had been arrested for possession with intent to sell marijuana, and had been arrested again for "maintaining a [dwelling]/controlled substance" and possession of drug paraphernalia. The juvenile admitted the probation violations at a hearing on 26 January 2006. The trial court placed the juvenile on electronic house arrest and continued disposition.
The trial court resumed the disposition hearing on 23 February 2006. Ms. Moore testified she had been unable to implement the electronic house arrest. Ms. Moore also testified that she had told the juvenile he needed to go back to school, but that the juvenile had not returned to school. She also testified she had been unable to find the juvenile at his home and that a secure custody order had been issued for the juvenile on 10 February 2006. Ms. Moore located the juvenile in jail on 15 February 2006, charged with assault on a female. Ms. Moore requested that the juvenile remain on Level 2 disposition for ninety days so that he could transition into adult probation. Ms. Moore further requested that the juvenile's probation be terminated at that time.
The trial court entered a Level 3 disposition and commitment order on 23 February 2006. The trial court committed the juvenile to the Department of Juvenile Justice and Delinquency Prevention for placement in a youth development center for an indefinite commitment. The trial court did not specify the maximum term of the commitment. The order also contained a statement that the juvenile "need[ed] drug counseling, anger management and mental health service." The juvenile appeals.
I.
The juvenile argues the trial court erred by failing to specify the maximum term of commitment in the disposition and commitment order. The juvenile argues that the omission was in violation of N.C. Gen. Stat. § 7B-2513(a) (2005), which provides: "At the time of commitment to a youth development center, the court shall determine the maximum period of time the juvenile may remain committed before a determination must be made by the Department pursuant to G.S. 7B-2515 and shall notify the juvenile of that determination." At the hearing, the trial court made the proper oral finding that the juvenile's commitment would not exceed his eighteenth birthday. However, the maximum term of commitment was omitted from the written disposition and commitment order. Therefore, we remand to the trial court with instructions to correct this clerical error on the disposition and commitment order. See In re J.L.B.M., ___ N.C. App. ___, ___, 627 S.E.2d 239, 248 (2006) (remanding the matter to the trial court with instructions to correct a clerical error where the trial court omitted the maximum term of commitment from the written commitment order).
II.
The juvenile next argues the trial court erred and abused its discretion when it committed him to the Department of Juvenile Justice and Delinquency Prevention for placement in a youth development center. The juvenile also argues the trial court erred by not terminating the juvenile's probation. Specifically, the juvenile argues that the trial court's decision was not supported by the evidence because, at the time of the disposition hearing, the juvenile was living the life of an adult. The juvenile argues that his juvenile probation should have been terminated, allowing him to serve his adult probation. We disagree.
N.C. Gen. Stat. § 7B-2510(e) (2005) provides:
If the court, after notice and a hearing, finds by the greater weight of the evidence that the juvenile has violated the conditions of probation set by the court, the court may continue the original conditions of probation, modify the conditions of probation, or, except as provided in subsection (f) of this section, order a new disposition at the next higher level on the disposition chart in G.S. 7B-2508.
N.C. Gen. Stat. § 7B-2510(f) (2005) provides that "[a] court shall not order a Level 3 disposition for violation of the conditions of probation by a juvenile adjudicated delinquent for an offense classified as minor under G.S. 7B-2508." Our Court has recognized that "choosing between two appropriate dispositional levels is within the trial court's discretion. Absent an abuse of discretion, we will not disturb the trial court's choice." In re Robinson, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002).
In the present case, the juvenile was adjudicated delinquent for an offense classified as serious under N.C. Gen. Stat. § 7B-2508(a)(2) (2005), and the juvenile was given a Level 2 disposition and was placed on probation. The juvenile then admitted he violated the terms of his probation and the trial court entered a Level 3 disposition and commitment order. The trial court was clearly authorized to order a Level 3 disposition because this was the next higher level under N.C.G.S. § 7B-2508 and the offense for which the juvenile had been adjudicated delinquent was a serious, not a minor, offense. See N.C.G.S. § 7B-2510(e)(f). Accordingly, we find no abuse of discretion.
Affirmed in part and remanded in part.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).