“The Nuts and Bolts of Initiating a Juvenile Delinquency Appeal” by guest bloggers Danie
If you represent a juvenile client, it is your duty to advise your client of the right to appeal an adjudication and disposition and of the strengths and weaknesses of a potential appeal. It is also your duty to file notice of appeal for the juvenile. See North Carolina Commission on Indigent Defense Services, Performance Guidelines for Appointed Counsel in Juvenile Delinquency Proceedings at the Trial Level, Guideline 11.3 (2007). This duty mirrors trial counsel’s duty to advise clients in adult criminal cases.
But it is also important to remember that the rules governing notice of appeal are different in juvenile delinquency matters than in adult cases. In addition, there are steps that counsel can take to ensure that the appeal has some practical benefit to the client and that the appeal moves forward as quickly as possible. Below are 12 tips for successfully initiating an appeal for a juvenile client.
Timing. Trial counsel only has 10 days to enter notice of appeal in a juvenile matter. Pursuant to C. Gen. Stat. § 7B–2602, whichgoverns the appeal procedure in juvenile delinquency cases, “[n]otice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order.” In contrast, trial counsel has 14 days to give notice of appeal in adult criminal cases.
If Adjudication and Disposition Are Split Up, When Do I File Notice of Appeal? Pursuant to C. Gen. Stat. § 7B-2602, if no disposition is made within 60 days after entry of the adjudication order, written notice of appeal of the adjudication may be given within 70 days after entry of the order. This means that if your juvenile client is adjudicated delinquent, but no disposition is ordered, trial counsel has a 10 day window to file notice of appeal that begins 60 days after the entry of the adjudication order. Thus, in the event that the trial court orders adjudication but continues disposition, the best practice is to calculate and enter two dates into your firm’s calendaring system: (1) the date that is 60 days after adjudication, when your notice of appeal window opens if disposition is not yet ordered, and (2) the date that is 10 days after that, and which represents the end of the notice of appeal window.
The Trial Court Said It One Day But Wrote It Another Day, So When Does The 10 Day Clock Start Ticking? If the trial court ordered an adjudication and disposition at the hearing but did not file a written order until later, trial counsel has from the date of the hearing until 10 days after the written adjudication and disposition orders were filed, to file notice of appeal. See In re M.A.P., No. COA16-279, slip op. at 5 (N.C. Ct. App. Sep. 20, 2016) (unpublished) (holding, based on State v. Oates, 366 N.C. 264 (2012), that the juvenile had from the date of dispositional hearing until ten days after the dispositional order was entered to file written notice of appeal). Thus, there may be times when trial counsel gives notice of appeal after the trial court’s oral orders but before the trial court files the corresponding written orders. Please note that, regardless of the window of time statutorily permitted, once your client decides to appeal, you must not delay filing notice of appeal.
Write it Down, Serve It, and File It. Pursuant to C. Gen. Stat. § 7B–2602, trial counsel may either (1) give oral notice of appeal in open court at the time of the hearing; or (2) give written notice within 10 days after entry of the order. While oral notice is permitted, the best practice is to file written notice for two reasons. First, written notice of appeal provides a written record that the appeal was timely filed. Second, as a practical matter, if there is a defect in the notice of appeal, the appellate defender is able to spot it faster if the notice is written, because the clerk of court forwards a copy of the court file to the appellate defender. If oral notice of appeal is given, an error would not be discovered by appellate counsel until the court reporter transcribed the hearing and sent it to appellate counsel.
What Am I Appealing? The North Carolina Court of Appeals has held that when a juvenile appeals a dispositional order, “he also effectively appeals the underlying adjudication order.” In re A.J. M.-B., 212 N.C. App. 586 (2011). However, confusingly, the Court has also found a lack of jurisdiction where the juvenile did not appeal both the adjudication order and the disposition order. See In re A.L., 166 N.C. App. 276 (2004)(holding that the court had no jurisdiction over an appeal where the juvenile appealed the adjudication but not the disposition); see also In re M.B.B., No. COA06-1155, slip op. at 5 (N.C. Ct. App. May 1, 2007)(holding that where the trial court adjudicated the juvenile delinquent for simple affray and for simple assault and one disposition was subsequently ordered for both, the appellate court lacked jurisdiction over the simply affray adjudication because notice of appeal referenced only the simple assault adjudication and the joint disposition but did not mention the simple affray adjudication). Thus out of an abundance of caution, trial counsel should include each adjudication order and each dispositional order in the notice of appeal. (The only exception would be if the appeal is made within the 60-70 day window described in C. Gen. Stat. § 7B–2602because no disposition was ordered). A sample notice of appeal is available on the Juvenile Defender website.
Get Your Client Out of Detention. There are two ways to seek release of your client while the appeal is pending.
First, trial counsel should request release pursuant to C. Gen. Stat. § 7B-2605. The juvenile must be released under N.C. Gen. Stat. § 7B-2605 unless the court enters a written order providing “compelling reasons” that custody or placement would be “in the best interests of the juvenile or the State.” See In re J.J. Jr., 216 N.C. App. 366, 376 (2011) (holding that the juvenile “should have been released” after giving notice of appeal because the trial court “failed to state any compelling reasons in writing why the juvenile should not be released pending his appeal”). The best practice is to include the written request for release from custody in the written notice of appeal.
Second, although not addressed in the Juvenile Code, trial counsel could file a motion for stay of disposition. Using this avenue, trial counsel would request that any dispositional alternatives involving confinement be stayed during the pendency of the appeal pursuant to Rule 8 of the North Carolina Rules of Appellate Procedure.
These two avenues could apply for any type of confinement or placement outside of the home, including intermittent confinement under C. Gen. Stat. § 7B-2606(12), confinement at a juvenile detention facility under N.C. Gen. Stat. § 7B-2606(20), and confinement in a Youth Development Center under N.C. Gen. Stat. § 7B-2606(24).
A sample notice of appeal with a request for release and a sample stay motion are both available on the Office of the Juvenile Defender website.
Staying Non-Confinement Dispositions Pending Appeal. Trial counsel could also ask that any dispositional alternatives, such as probation, be stayed under Rule 8 of the North Carolina Rules of Appellate Procedure during the pendency of the appeal. Trial counsel must argue that there are potentially meritorious issues that would warrant relief on direct appeal and that failure to grant a stay would deprive the juvenile of the practical benefits of direct appeal. Meares v. Town of Beaufort, 193 N.C. App. 49, 63-64, 667 S.E.2d 244, 254 (2008); Abbott v. Highlands, 52 N.C. App. 69, 277 S.E.2d 820 (1981). For example, trial counsel may argue that the trial court committed reversible error by failing to issue written findings of fact regarding each of the factors outlined in N.C. Gen. Stat. § 7B-2501(c), and subsequently failed to select “the most appropriate disposition” for the juvenile “that is designed to protect the public and to meet the needs and best interests of the juvenile.” N.C. Gen. Stat. § 7B-2501(c); In re V.M., 211 N.C. App. 389, 392, 712 S.E.2d 213, 215 (2011). Further, if a dispositional order included 12 months of probation, the probationary term would likely run before relief could be obtained via the appellate process. See State v. Corkum, 224 N.C. App. 129, 132, 735 S.E.2d 420, 422-23 (2012) (“[t]his nine-month duration is too short for an appeal to be decided”). Please note that a dispositional stay may be full or partial. The stay motion may also practically serve as a rare opportunity to explain to a trial judge what trial counsel believes to be unjust or incorrect about a court order after it is issued and could thus double as an educational exercise for all involved.
Don’t Reinvent the Wheel! The juvenile defender has online templates for you to use! Use them. This will help to ensure that the notice of appeal is proper.
Appellate Entries. Immediately after giving notice of appeal, the best practice is to complete the Appellate Entries form and provide it to the trial court to expedite the appointment of appellate counsel. To avoid delays in processing the appellate entries, counsel should identify a court reporter on the appellate entries before submitting the appellate entries to the clerk. Counsel should ask the clerk if he or she knows which court reporter will be assigned to the case. If the clerk does not know which court reporter to assign to the case, counsel should contactDavid Jester, Court Reporting Manager for the Administrative Office of the Courts. David Jester can be reached at (919) 831-5974. After counsel has submitted the appellate entries to the clerk, trial counsel should follow-up with the clerk to ensure that the appellate entries is signed by the district court judge and that the clerk sends copies of the appellate entries and the court file to the Office of the Appellate Defender in a timely manner.
Transfer Orders. Pursuant to C. Gen. Stat. § 7B-2603(d), there are two things that need to happen before a juvenile can appeal a transfer order (an order transferring jurisdiction of the district court to the superior court) to the Court of Appeals. First, trial counsel MUST appeal the order to superior court before the order can be appealed to the Court of Appeals. G.S. 7B-2603(d); State v. Wilson, 151 N.C. App. 219, 222 (2002). Second, the juvenile MUST have been convicted after a trial. Id.
Don’t Take the Clerk’s Word For It. It is trial counsel’s responsibility to obtain and review the court file to check for written adjudication and dispositional orders. If the clerk resists providing the court file, trial counsel must insist on obtaining and reviewing it. The written adjudication and dispositional orders may determine when the 10 day notice of appeal window runs. Trial counsel must make his/her own determination of the notice of appeal timeline and cannot rely on the clerk for determining that window.
If You Aren’t Sure, Ask! Eric Zogry and Kim Howes at the Office of the Juvenile Defender, and David Andrews, at the Office of the Appellate Defender, are great resources. They are available to help you with any questions you may have regarding entry of notice of appeal in juvenile matters!
David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender. He handles indigent appeals in criminal, juvenile delinquency, and involuntary commitment cases in the North Carolina Court of Appeals and the Supreme Court of North Carolina. He can be reached by email at David.W.Andrews@nccourts.org.
Danielle Blass is the principal attorney at Blass Law, PLLC, where her focus is on criminal appellate defense in North Carolina state courts. Ms. Blass’s professional experience includes representing hundreds of clients on criminal charges with an emphasis on client dedication, zealous advocacy, and rigorous preparation. Prior to opening Blass Law, PLLC, she worked in education law for UNC’s Office of University Counsel, in general practice as an associate with DeWitt Law, PLLC, and in criminal trial and appellate defense as a partner with Gerding Blass, PLLC. She earned her B.A. from Duke University and a J.D. from UNC School of Law.