Opinion
NO. COA10-1053
08-02-2011
IN THE MATTER OF J.K.L.
Attorney General Roy A. Cooper, by Assistant Attorney General Karissa J. Davan, for the State. Marie H. Mobley for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Mecklenburg County No. 2007-JB-926
Appeal by juvenile from an order entered 27 April 2010 by Judge Rickye McKoy-Mitchell in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 March 2011.
Attorney General Roy A. Cooper, by Assistant Attorney General Karissa J. Davan, for the State.
Marie H. Mobley for juvenile-appellant.
BRYANT, Judge.
Where the trial court erred by committing juvenile to a youth development center, exceeding the limit provided by statute, we vacate and remand the disposition and commitment order. Where the trial court entered a Level 3 disposition, it did not err in failing to conduct or consider a risk and needs assessment.
Facts and Procedural History
In November 2008 juvenile petitions for disorderly conduct at school and misdemeanor assault were filed against J.L.(Juvenile). During her delinquency adjudication, juvenile, through counsel, admitted to "[assault on] an officer or employee of the State" under N.C. Gen. Stat. § 14-33(c)(4), and the State dismissed the disorderly conduct charge. In March 2009, the trial court initially placed juvenile on probation for a period of nine months under the following terms and conditions, in pertinent part:
Initials have been used throughout to protect the identity of the juvenile.
With regard to education and/or employment, the juvenile shall: Attend school each and every day, all classes, not have any excused tardies, and not be suspended or excluded from school
. . . .
Comply with the following curfew: 6 P.M. until 6:00 A.M. each and every day. The juvenile may be out past his/her curfew if with his parents or a person approved by his/her parents and juvenile court counselor.
A motion for review filed 22 February 2010 stated that:
On or about the 22nd day of January 2010, said juvenile violated her 6pm curfew by not coming home until 12:30 a.m. On or about the 22nd day of January 2010, said juvenile did return home from school. Said juvenile returned home on the 23rd day of January atJuvenile admitted these allegations. On 27 April 2010, the trial court entered a "Juvenile Level 3 Disposition and Commitment Order," ordering juvenile to be committed to the Department of Juvenile Justice and Delinquency Prevention for placement in a youth development center for a minimum period of six months. The order also stated "[t]he maximum time the juvenile may remain committed before the Department of Juvenile Justice and Delinquency Prevention either releases the juvenile or makes a determination that the juvenile's commitment should be extended is . . . juvenile's eighteenth (18th) birthday." From this order, juvenile appeals.
8:30 p.m. On or about the 11th day of February 2010, said juvenile received one day of in school suspension for inappropriate language and disrespectful behavior. On or about the 17th day of February 2010, said juvenile received a two day suspension for inappropriate language and disrespectful behavior. In addition, said juvenile received a two day suspension on the 22nd day of February 2010 for cell phone use in school and continued profanity use.
The conduct above violates the conditions as set forth in the prior orders entered by this Court on the 11th day of March 2009.
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On appeal, juvenile raises the following issues: whether the trial court erred (I) by committing juvenile to a youth development center until her eighteenth birthday; and (II) by ordering that juvenile be committed to a youth development center without a risk and needs assessment pursuant to N.C. Gen. Stat. § 7B-2501.
I
Juvenile first argues that the trial court erred when it found that the maximum time she could remain committed to a youth development center was until her eighteenth birthday. Juvenile contends that the maximum commitment for her misdemeanor offense is six months, and because the trial court failed to indicate the precise terms of the disposition, the disposition and commitment order should be vacated.
The trial court based juvenile's commitment on an offense she committed in December 2008 for assault on a government officer or employee under N.C. Gen. Stat. § 14-33(c)(4). The applicable statute for the offense for which juvenile was placed on probation and served as the basis of the commitment states that
any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault . . . he or she . . . [a]ssault[s] an officer or employee of the State or any political subdivision of the State, when the officer or employee is discharging or attempting to discharge his official duties[.]N.C.G.S. § 14-33(c)(4) (2009) (emphasis added). An A1 misdemeanor offense class limits the duration of a sentence to a maximum of 150 days for an adult with a prior conviction level III. N.C.G.S. § 15A-1340.23(c)(2) (2009). It is well established that
[n]o juvenile shall be committed to a youth development center beyond the minimum six-month commitment for a period of time in excess of the maximum term of imprisonment for which an adult in . . . prior conviction level III for misdemeanors could be sentenced for the same offense, except when the Department pursuant to G.S. 7B-2515 determines that the juvenile's commitment needs to be continued for an additional period of time to continue care or treatment under the plan of care or treatment developed under subsection (f) of this section. 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.N.C.G.S. § 7B-2513(a)(3) (2009) (emphasis added).
In the case before us, the trial court ordered "[t]he maximum time the juvenile may remain committed before the Department of Juvenile Justice and Delinquency Prevention either releases the juvenile or makes a determination that the juvenile's commitment should be extended is: c. the juvenile's eighteenth (18th) birthday." Juvenile's birthday is 2 0 December 1993, and she was sixteen years of age at the date of the hearing. Because the maximum adult sentence for an A1 offense for a prior conviction level III is 150 days, the trial court erred when it ordered that the maximum time juvenile could remain committed to a youth development center could be up to her eighteenth birthday. If juvenile were to be committed until her eighteenth birthday on 20 December 2011, it would far exceed "the maximum term . . . for which an adult . . . [with a] prior conviction level III for misdemeanors could be sentenced for the same offense[.] " N.C.G.S. § 7B-2513(a)(3). Therefore, we vacate the trial court's disposition and commitment order and remand for a disposition order consistent with N.C.G.S. § 7B-2513(a)(3).
II
In juvenile's second argument, she contends the trial court erred by committing juvenile to a youth development center without considering a risk and needs assessment as mandated by N.C. Gen. Stat. § 7B-2512 and § 7B-2501. We disagree.
The trial court has discretion in determining the proper disposition for a delinquent juvenile. In re Ferrell, 162 N.C. App. 175, 176, 589 S.E.2d 894, 895 (2004) (citing In re Hartsock, 158 N.C. App. 287, 580 S.E.2d 395, 398-99 (2003)). "It is settled that an abuse of discretion is established only upon a showing that a court's actions are manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision." In re E.S., 191 N.C. App. 568, 573, 663 S.E.2d 475, 478 (2008) (citation and internal quotation marks omitted).
In selecting a disposition,
the court shall select the most appropriate disposition both in terms of kind and duration for the delinquent juvenile. . . . [T]he court shall select a disposition that is designed to protect the public and to meet the needs and best interests of the juvenile, based upon:N.C.G.S. § 7B-2501(c) (2009). When the trial court issues the dispositional order
(1) The seriousness of the offense;
(2) The need to hold the juvenile accountable;
(3) The importance of protecting the public safety;
(4) The degree of culpability indicated by the circumstances of the particular case; and
(5) The rehabilitative and treatment needs of the juvenile indicated by a risk and needs assessment.
[it] shall be in writing and shall contain appropriate findings of fact and conclusions of law. The court shall state withN.C.G.S. § 7B-2512 (2009).
particularity, both orally and in the written order of disposition, the precise terms of the disposition including the kind, duration, and the person who is responsible for carrying out the disposition and the person or agency in whom custody is vested.
In the instant case, the trial court did not indicate whether it had received, considered, or incorporated the contents of a risk or needs assessment into the disposition order. However, in determining which dispositional alternative is appropriate, the trial court is only required to consider a risk and needs assessment for juveniles who have been adjudicated delinquent as Level 1 or Level 2. N.C.G.S. § 7B-2508(c)-(d) (2009). Because the trial court ordered juvenile at a Level 3 disposition, it was not required to consider a risk and needs assessment and, therefore, did not abuse its discretion. Juvenile's argument is without merit.
N.C.G.S. § 7B-2508, which establishes the dispositional limits for each class of offense and delinquency history level, states that for both a level 1 and 2 disposition level, "the court shall consider the needs of the juvenile as indicated by the risk and needs assessment contained in the predisposition report, the appropriate community resources available to meet those needs, and the protection of the public" in determining which disposition alternative is appropriate for a juvenile. N.C.G.S. § 7B-2508 (c)-(d) (2009).
Vacated and remanded in part; affirmed in part.
Judges ELMORE and GEER concur.
Report per Rule 30(e).