Welcome to the December edition of Case Law Corner! This month’s post includes not only summaries of two recent delinquency cases, but also a special note from Assistant Appellate Defender David Andrews with tips on properly appealing cases. Read on for all the delicious details!
In re: A.G.J.
No. COA23-323
Rockingham County
21 November 2023
Summary of the Case: “Annie” admitted responsibility on two misdemeanors and disposition was entered, placing her on twelve months of probation and in the custody of the Rockingham Department of Social Services. Timely notice of appeal was filed, albeit not drafted with technical correctness, as the appeal did not indicate to which Court the appeal was being taken. Disposition was vacated and remanded for a new dispositional hearing that considered all factors required by statute.
Issues Affecting Youth: What findings by a court satisfy the requirement that all factors in NCGS 7B-2501(c) be considered? The majority opinion held that each factor must be individually considered within the dispositional order itself. However, Judge Stroud’s dissent indicated that “incorporating documents by reference” should satisfy the requirements of the statute if those referenced documents address all the factors.
“This Court’s precedents have made it clear that the trial court is required to make written findings in a disposition order entered in a juvenile delinquency matter, demonstrating it considered all the factors in Section 7B-2501(c).”
“As the dissenting judge, I will not attempt to reconcile years of arguably inconsistent case law and remain ‘trapped in a chaotic loop as different panels disagree[.]’ I simply note that here, by incorporating the pertinent documents into its order along with its additional findings of fact, the trial court satisfied North Carolina General Statute Section 7B-2501(c)”… (internal citations omitted)
Other Topic Affecting Youth Defenders: The process of appealing a juvenile delinquency matter can be a little tricky from some aspects – and yet very straightforward on others. Defenders should familiarize themselves with the appeals process – check out thoughts from Assistant Appellate Defender David Andrews on the specifics of appealing delinquency cases at the end of today’s Case Law Corner!
The appellate courts can get ugly when an appeal isn’t entered properly: “[I]t was ‘readily apparent that [the] defendant has lost his appeal through no fault of his own, but rather as a result of sloppy drafting of counsel.’” State v. Hammonds, 218 N.C. App. 158, 163, 720 S.E.2d 820, 823 (2012) Remember that improper appeals create jurisdictional issues and leaves the appellate defenders begging the courts to hear the case anyway. If you are unsure, please reach out to us or the Appellate Defender’s office and we will be happy to help!
In re: T.L.B.
No. COA23-565
Lincoln County
21 November 2023
Unpublished Opinion
Summary of the Case: Timothy admitted to the allegations of Secret Peeping, a class 1 misdemeanor, and Dissemination of Images Obtained in Violation of the Peeping Statute, a class H felony. The trial Court found Timothy to have a “Low” delinquency history and advised Timothy during the admission colloquy that the most serious or severe disposition level that could be imposed was a Level 1 Disposition. In fact, a class H felony, even for a Low Delinquency History, can be sentenced as Level 1 or Level 2. The trial court imposed a Level 1 disposition. Timely notice of appeal was filed, albeit not technically correct in its timing as the appeal was filed before the written order was filed.
Issues Affecting Youth: Whether the language on the AOC provided Transcript of Admission meets the statutory requirements to advise the youth of his right to confront witnesses? Yes, it does.
Jurisprudence “require[s] the juvenile to be informed of all six of the rights enumerated by the statute. Had the Supreme Court intended for a verbatim reading by the trial court of Section 7B-2407(a), it would have clearly stated so.” (Citations omitted)
Whether advising a youth that the most serious disposition a court could impose is a Level 1 disposition, even if the youth is eligible for Level 2 disposition, is a knowing and voluntary admission if the Court actually imposes Level 1 disposition? Yes, it is.
“[A] trial court does not err when it advises a juvenile of a specific disposition level it could receive, then orders the juvenile to the advised-of disposition level, even though it could have ordered a higher level. This is necessarily so because it cannot be said the admission was not knowing or voluntary when a juvenile receives the disposition level of which they were advised.
Are there exceptions to the mootness rule (which bars appellate courts from reviewing matters if they have become moot)? Yes. Two exceptions to this rule are the “capable of repetition, yet evading review” exception, and the “public interest” exception.
“The capable of repetition, yet evading review exception applies when: “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” (Citations omitted)
“Under the public interest exception to mootness, an appellate court may consider a case, even if technically moot, if it involves a matter of public interest, is of general importance, and deserves prompt resolution.” (Citations omitted)
Trial defenders should remember that appellate defenders can always make an argument that an issue should be reviewed even if it is moot under these exceptions. This may be particularly applicable in situations where judges routinely hold children in secure custody on illegal or improper grounds. Please contact us or the Appellate Defenders office if you’d like to become more familiar with this concept and how you might help preserve these issues for appellate review.
Thoughts on Appealing Juvenile Delinquency Matters from Appellate Defender David Andrews
In a very timely conversation on the juvenile defense listserv, a defender asked a question to which Assistant Appellate Defender David Andrews responded with a fantastic list of tips and things to remember when appealing juvenile delinquency cases. I’ve reproduced a lightly edited version of his response here – please reach out to us or to David with any questions or thoughts! (And if you’re not on the listserv but would like to be added, just let us know!)
The relevant statute for the right to appeal in delinquency cases is N.C. Gen. Stat. 7B-2602.
Take a minute to read it. It’s not long.
As a general matter, it’s easier to give oral notice of appeal. It’s just less complicated. However, you must be sure to give oral notice of appeal after the judge orally enters disposition. There are lots of cases where attorneys give notice of appeal after the client enters an admission (pleads guilty), but before the judge issues the disposition. Don’t do that! The notice of appeal in that scenario is premature, invalid, and subjects the appeal to dismissal.
Also, as a general matter, you can’t appeal directly from the adjudication order. Instead, you can only appeal from a dispositional order. Again, this is in the text of NCGS 7B-2602. (There’s one complicated exception where you can give written notice of appeal from the adjudication order between the 60th and 70th day after the adjudication if no disposition has been entered)
NCGS 7B-2602 also says you can give written notice of appeal within 10 days after the disposition has been entered. The problem is that if you didn’t give oral notice of appeal, you must keep checking with the clerk to see when the judge files the written dispositional order in the court file. That is, you cannot enter written notice of appeal until there is a file-stamped written order. If you give written notice of appeal on the same day of the dispositional hearing, but the judge doesn’t file the written dispositional order until a week later, your written notice of appeal will – again – be premature, invalid, and subject the appeal to dismissal. (All of this is obviously complicated and frustrating. I’ve argued against some of this insanity to no avail) I’ve attached a sample written notice of appeal. If you file a written notice of appeal, be sure to file it after the written order is file-stamped and serve a copy on the prosecutor.
When you give notice of appeal, you can also ask, orally or in writing, that the dispositional order be stayed. A sample written stay motion is available in the Trial Motions and Forms Index section of the Defenders Portal. If you ask for a stay and your request is denied, then the appellate attorney could potentially ask the Court of Appeals for a stay. However, if you don’t ask for a stay in juvenile court, the appellate attorney cannot ask for a stay. (This is a function of Rule 8 of the North Carolina Rules of Appellate Procedure)
Lastly, you might want to fill out and include with your notice of appeal an appellate entries. The appellate entries is an order where the trial judge appoints the Office of the Appellate Defender to represent the client. You can find an appellate entries for delinquency cases here. Whether you prepare the appellate entries or the clerk does, please make sure that any and all hearings that occurred in the case are included in the box on the top left box on the front page. If you don’t, the appellate attorney will have to figure when any relevant hearings were – and that is time-consuming, difficult, and makes the appeal last longer. If is far easier and much more efficient if you, the trial attorney, include those dates on the appellate entries at the beginning of the appeal.
If you have questions, please post them email on the juvenile listserv so everyone case see the questions and answers. These issues come up frequently, and I think an open discussion would help everyone become more familiar with what needs to be done to get an appeal up to the Appellate Division. Please also feel free to reach out to me by sending an email to David.W.Andrews@nccourts.org
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