By Eric Zogry
In late 2013 the North Carolina Court of Appeals issued opinions on three juvenile delinquency cases that merit highlighting:
- • In re J.L.H., 2013 N.C. App. LEXIS 1155
- • In re G.C., 2013 N.C. App. LEXIS 1203
- • In re A.F., 2013 N.C. App. LEXIS 1316
The cases are notable not only for their immediate impact, but long term consequences and strategic possibilities juvenile defenders should explore.
In re J.L.H. involved a juvenile who was committed to a youth development center (YDC), and the Division of Juvenile Justice wanted to extend the juvenile’s commitment. Under North Carolina General Statutes 7B-2515(a), the Division must give the juvenile and their parent 30 days written notice of the intent to extend. The juvenile’s father participated in the discussion regarding extension by phone, but written notice was not sent within the 30 day time frame. The trial court found that the extension request was timely made, but the Court of Appeals disagreed. The Court found that the period of commitment was unlawfully extended because the Division failed to provide the juvenile and his parents written notice of the extension at least 30 days prior to the end of the maximum commitment period. Oral notice of the extension was not sufficient notice, as the statutory language is mandatory and notice is a fundamental due process right. Key takeaways for defenders include:
• Make sure you know the date of release and communicate it to the juvenile and the parent/guardian.
• Follow up with the court counselor before the 30 day notice period to get a status update.
• If the Division requests extension, make sure you have adequate time to prepare and use this case as support.
• Any statutory process that involves notice should be held to be mandatory as it protects a fundamental due process right.
In re G.C. took a different turn on a procedural issue. A probable cause hearing on two serious sex offenses was held in which the juvenile did not put on any evidence. A transfer hearing was held several months later, where the court denied the motion to transfer, but proceeded to adjudicate the juvenile delinquent and commit the juvenile to a YDC. No separate adjudicatory or dispositional hearing was held. The Court of Appeals determined that, based on prior case law, that there is no requirement to hold separate and distinct hearings for adjudication and disposition. So long as the juvenile’s constitutional and statutory rights are protected, the trial court may conduct the transfer hearing, adjudicatory hearing, and dispositional hearing in one proceeding. Counsel was provided opportunities to present evidence (specifically one opportunity at the closing argument). Defenders who are concerned that their client may be subject to immediate adjudication after the court decides not to transfer the case should consider the following strategies:
• File a Motion for an Adjudicatory Hearing before probable cause is heard.
• If you put on evidence at probable cause, indicate the evidence is for that hearing and not for the purposes of determining adjudication.
• File Notice of Appeal if adjudicatory hearing not granted after disposition is entered/after 60 days if no disposition entered.
In addition defenders should make sure to argue how their client’s rights are being infringed, specifically constitutional (lack of notice and effective assistance of counsel), statutory (different purposes for each of the hearings) and procedural (evidence, discovery, right to plead, standards of proof).
In contrast, In re A.F. refused to make assumptions about the court’s procedural fidelity. In this case a juvenile was placed on probation. Prior to expiration of the probation period, a probation violation was filed against the juvenile. The juvenile was not served prior to the expiration of probation, but was picked up on a secure custody order for another juvenile allegation. The juvenile admitted to the probation violation and new allegation and was committed to a YDC based on the fact the juvenile was on probation at the time of the commission of the new offense. The Court of Appeals held that the trial court erroneously assigned the juvenile two additional delinquency history points based on the incorrect assumption that the juvenile was still on probation at the time the juvenile committed the offense that made the juvenile eligible for a Level 3 disposition and commitment to a YDC. The Court rejected the arguments of the State that the trial court must have extended probation, or that extension was based on the juvenile’s admission of the probation violation. Some helpful tips for defenders include:
• Always perform an independent check of the juvenile’s prior record.
• Ensure that the court orders a specific end date for the period of probation (see forms AOC-J-461, AOC-J-475).
• Object/move to dismiss a motion for review if the juvenile’s probation period has lapsed.
• Do not consent to service of the motion for review if your client has not been served
Eric Zogry is a juvenile defender at the NC Office of the Juvenile Defender