In the Interest of J. M. A., a Child , 340 Ga. App. 155 ( 2017 )

SECOND DIVISION
BARNES, P. J.,
RICKMAN and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 7, 2017
In the Court of Appeals of Georgia
A16A1481. IN THE INTEREST OF J. M. A., A CHILD.
BARNES, Presiding Judge.
J. M. A. appeals from the juvenile court’s judgment adjudicating him delinquent
for violating the conditions of his probation. J. M. A. contends that the juvenile court
erred in denying his motion to dismiss the State’s delinquency petition for lack of
jurisdiction, and he challenges the sufficiency of the evidence to support the court’s
adjudication of delinquency. For the reasons discussed below, we affirm.
In reviewing a delinquency adjudication, we construe the record in the light most
favorable to the juvenile court’s ruling. In the Interest of J. W., 309 Ga. App. 470, 470-
471 (711 SE2d 48) (2011). So construed, the record shows that on July 18, 2014, 13-
year-old J. M. A. was adjudicated delinquent in the Juvenile Court of DeKalb County
for criminal attempt to commit burglary and was placed on probation for one year. The
specific conditions of J. M. A.’s probation included that he perform 40 hours of
community service during his probationary term and pay an initial probation
supervision fee of $75 by September 18, 2014.
On July 16, 2015, the State filed a complaint in the juvenile court, alleging that
J. M. A. had committed the delinquent act of violating his probation by failing to
complete his community service hours or pay the full supervision fee. The complaint
cited to OCGA § 15-11-2 (19) (B) (2014),1 which defines a “delinquent act” to include
“[t]he act of disobeying the terms of supervision contained in a court order which has
been directed to a child who has been adjudicated to have committed a delinquent act.”
The State subsequently filed a delinquency petition against J. M. A. that contained the
same allegations as the complaint and again cited to OCGA § 15-11-2 (19) (B) as the
basis for the charge.
In October 2015, J. M. A. filed a motion to dismiss the delinquency petition.
According to J. M. A., the July 18, 2014 probation order upon which the delinquency
petition was predicated had expired one year after he had been placed on probation, and
1
Georgia’s Juvenile Code was significantly revised, effective January 1, 2014,
and the new Code applies “to all offenses which occur and juvenile proceedings
commenced on or after such date,” which includes the present case. Ga. L. 2013, p. 294,
§§ 1/HB 242, 5-1.
2
there was no statutory or common law basis for tolling his probationary sentence. J. M.
A. argued that once the probation order expired, the juvenile court lost jurisdiction to
continue to hear any claims brought by the State that he had violated the conditions of
his probation. Hence, J. M. A. maintained, the State’s delinquency petition ought to be
dismissed for lack of jurisdiction.
The juvenile court denied J. M. A.’s motion to dismiss, concluding that J. M. A.’s
jurisdictional argument was misplaced because the State had not filed a motion to
revoke J. M. A.’s probation, as it could have done under OCGA § 15-11-608 (b).
Rather, the juvenile court emphasized, the State had filed a new petition alleging the
delinquent act of a violation of probation under OCGA § 15-11-2 (19) (B). Because the
State had filed a petition alleging the commission of a new delinquent act rather than
sought a revocation of probation, the juvenile court concluded that the question whether
the original probationary sentence had expired or been tolled was immaterial.
Consequently, the juvenile court ruled that it had jurisdiction to continue to hear the
delinquency case, even though the initial term of J. M. A.’s probation had ended.
Following the denial of the motion to dismiss, the juvenile court conducted an
adjudicatory hearing in January 2016 on the delinquency charge that J. M. A. had
violated the specific conditions of his probation by failing to complete his community
3
service or pay the full supervision fee. Two witnesses testified at the hearing, J. M. A.’s
probation officer and his mother. J. M. A. elected not to testify in his own defense.
J. M. A.’s probation officer testified that J. M. A. had only completed 36 of his
40 hours of community service and had an outstanding balance of $55 on his
supervision fee when the State initiated the present delinquency proceedings in July
2015. The officer testified that J. M. A. had completed his community service hours by
the time of the adjudicatory hearing in January 2016 but still owed the remainder of the
supervision fee. The officer further testified that she had sought to work with J. M. A.
and his family because of their financial and transportation problems so that J. M. A.
could complete the conditions of his probation. In this regard, the officer testified that
she allowed J. M. A. great flexibility in choosing where to perform his community
service, assisted him in finding a place to perform his community service, and set up a
payment plan for the supervision fee with individual payments as low as $7.
J. M. A.’s mother also testified at the hearing. She conceded that J. M. A. had not
completed his community service hours until December 2015, several months outside
of the one-year probationary term, and still owed $55 of the $75 supervision fee.
However, J. M. A.’s mother testified that J. M. A. had been unable to work after April
2015 because he had severely injured his foot, requiring surgery and a period of
4
restricted activity. J. M. A.’s mother further testified that before the injury occurred in
April 2015, she did not have a car to transport J. M. A. and no money to provide him
with bus fare because she was unemployed, and that no businesses would hire him
because of his age.
Nevertheless, J. M. A.’s mother conceded that there had been no physical reason
J. M. A. could not do some type of work before his foot injury in April 2015, and that
there were many restaurants and other local businesses in the immediate area of the
apartment where they lived. She further testified that J. M. A. had not made any efforts
of which she was aware to find any type of work, and she had personally only asked one
restaurant about the possibility of hiring him. J. M. A.’s mother also admitted that J. M.
A. received $725 a month in Supplemental Security Income (“SSI”) benefits from
Social Security.
At the conclusion of the hearing, J. M. A.’s counsel conceded that J. M. A. had
not timely performed all of his community service hours and had not paid the full
supervision fee, but he argued that the State had presented insufficient evidence that the
probation violations had been willful. The juvenile court disagreed, stating at the
hearing that J. M. A. could have looked for odd jobs like “washing cars” or “sweeping
up hair at a barber shop” and there was no evidence that he ever made such efforts. The
5
juvenile court thereafter entered an order adjudicating J. M. A. delinquent for violating
his probation, finding “that the allegations of the petition are true, that the acts ascribed
to said child were, in fact, committed by said child, and that such acts constitute acts of
delinquency . . . within the meaning of the law.”
The juvenile court released J. M. A. to the custody of his mother. Following a
dispositional hearing, the juvenile court placed J. M. A. on probation for 6 months and
included as special conditions of his probation that he perform 20 additional hours of
community service and pay a supervision fee of $55. This appeal by J. M. A. followed.
1. J. M. A. first contends that the juvenile court erred in denying his motion to
dismiss the delinquency petition for lack of jurisdiction. According to J. M. A., the
juvenile court no longer had jurisdiction to adjudicate his alleged violations of probation
once his original one-year probationary term ended in July 2015 because there was no
statutory or common law basis for tolling the probationary period. We are unpersuaded
under the circumstances of this case, where the State filed a new delinquency petition
under OCGA § 15-11-2 (19) (B) to address J. M. A.’s alleged probation violations
rather than a motion to revoke his probation under OCGA § 15-11-608 (b).
As a general rule, once a sentence has been served, the sentencing court loses
jurisdiction over the criminal defendant to modify or alter the sentence. State v.
6
Mohamed, 203 Ga. App. 21, 21 (2) (416 SE2d 358) (1992). See Sentinel Offender Svcs.,
LLC v. Glover, 296 Ga. 315, 329 (3) (b) (766 SE2d 456) (2014) (“[O]nce a sentence has
been served, jurisdiction over the defendant ceases.”). Therefore, a sentencing court’s
jurisdiction to revoke or modify an adult criminal defendant’s probation ceases once the
term of the defendant’s probationary sentence has ended, unless the expiration of the
sentence has been tolled based on statutory or common law principles. See Anderson
v. Sentinel Offender Svcs., LLC, 298 Ga. 854, 857-858 (1) (784 SE2d 791) (2016);
Glover, 296 Ga. at 329 (3) (b); State v. Mills, 268 Ga. 873, 874 (495 SE2d 1) (1998);
Mohamed, 203 Ga. App. at 21 (2).
Here, however, the juvenile court did not revoke or modify J. M. A.’s
probationary sentence, but instead adjudicated him delinquent for a new substantive
offense, as sought by the State when it filed a new delinquency petition under OCGA
§ 15-11-2 (19) (B). Notably, revocation of probation is not the exclusive remedy
available to the State under Georgia’s new Juvenile Code when a juvenile defendant has
violated the conditions of his probation. Rather, as this Court recently explained in In
the Interest of H. J. C., 331 Ga. App. 506, 509 (2) (771 SE2d 184) (2015),
OCGA § 15-11-2 (19) (B) defines “delinquent acts” as including “[t]he act
of disobeying the terms of supervision contained in a court order which
7
has been directed to a child who has been adjudicated to have committed
a delinquent act[.]” . . . [Thus,] the statute provides a mechanism by which
a child who violates probation ordered in a previous adjudication of
delinquency may become the subject of a new delinquency petition. . . .
As part of the same statutory scheme, . . . OCGA § 15-11-608 (b) provides
that a delinquent child’s violation of probation “may be reported to the
prosecuting attorney who may file a motion in the court for revocation of
probation[.]”
(Emphasis supplied.) Given this unambiguous statutory framework, we held in H. J. C.,
331 Ga. App. at 509-510 (2), that the State is clearly afforded two alternative procedural
avenues for addressing a violation of probation in juvenile proceedings: file a new
delinquency petition alleging the probation violation as a delinquent act pursuant to
OCGA § 15-11-2 (19) (B), or file a motion to revoke the juvenile’s probation under
OCGA § 15-11-608 (b).2
In the present case, the State chose the first procedural avenue and filed a new
delinquency petition against J. M. A., alleging that his violation of the conditions of his
2
Construing prior versions of the Juvenile Code, we have held that if a child is
still on juvenile court probation after turning 17 and then violates his probation, the
State’s only remedy in that specific context is the filing of a petition to revoke
probation. See In the Interest of T. F., 314 Ga. App. 606, 607-608 (1) (724 SE2d 892)
(2012); In the Interest of B. S. L., 200 Ga. App. 170, 171 (407 SE2d 123) (1991). We
need not determine if the same rule applies under the new Juvenile Code, given that J.
M. A. committed the alleged probation violations before turning 17.
8
probation constituted a delinquent act under OCGA § 15-11-2 (19) (B), and the juvenile
court adjudicated J. M. A. delinquent under that petition. It follows that Georgia case
law addressing the jurisdiction of a sentencing court to revoke or modify a probationary
sentence, relied upon by J. M. A. to support his motion to dismiss, is simply inapposite.3
Instead, jurisdiction turns on the provisions of the new Juvenile Code that address a
juvenile court’s jurisdiction over petitions alleging delinquent acts, and in this regard,
the Code plainly and unambiguously provides that a juvenile court has exclusive
original jurisdiction to hear and decide cases, like the present one, where a child under
the age of 17 years is alleged to have committed a delinquent act. See OCGA §§ 15-11-
2 (10) (B); 15-11-10 (1) (A).4 Nothing in these statutory provisions suggests that the
delinquent act of a violation of probation should be treated differently from other
delinquent acts for jurisdictional purposes, and we decline to impose different
jurisdictional rules by way of judicial fiat. See generally Frazier v. Southern R. Co., 200
3
Because the State did not seek to revoke J. M. A.’s probation, we express no
opinion regarding whether or to what extent principles of statutory or common law
tolling apply in the context of a motion to revoke a juvenile’s probation brought
pursuant to OCGA § 15-11-608 (b).
4
Under certain circumstances, not applicable here, superior courts have
concurrent or exclusive jurisdiction over offenses committed by children. See OCGA
§ 15-11-560.
9
Ga. 590, 593 (2) (37 SE2d 774) (1946) (courts “may not substitute by judicial
interpretation language of their own for the clear, unambiguous language of the statute,
so as to change the meaning”).
Accordingly, given the aforementioned statutory scheme, we conclude that the
juvenile court had jurisdiction to hear and decide the State’s petition alleging that J. M.
A. had committed the new delinquent act of violating the conditions of his probation,
irrespective of whether the one-year term of J. M. A.’s probation ended after the
commencement of the new delinquency proceedings.5 The juvenile court therefore
committed no error in denying J. M. A.’s motion to dismiss for lack of jurisdiction.
2. J. M. A. next contends that there was insufficient evidence for the juvenile
court to adjudicate him delinquent for violating his probation because there was no
evidence that his failure to pay the full supervision fee and timely complete his
community service were willful. Again, we are unpersuaded.
5
J. M. A. did not argue in the juvenile court that the new delinquency
proceedings were barred by the applicable statute of limitation, and thus we decline to
address what limitation period should apply to delinquency petitions filed pursuant to
OCGA § 15-11-2 (19) (B). See In the Interest of S. M. G., 284 Ga. App. 64, 66 (643
SE2d 296) (2007) (appellate courts will not address issues that were neither raised
below nor ruled upon by the juvenile court).
10
To support a finding of delinquency, a child’s violation of the conditions of
probation must be willful and voluntary. Gray v. State, 313 Ga. App. 470, 473 (2) (722
SE2d 98) (2011). See Johnson v. State, 162 Ga. App. 226, 226-227 (2) (291 SE2d 94)
(1982); Burson v. State, 161 Ga. App. 107, 109 (2) (289 SE2d 254) (1982); Wade v.
State, 152 Ga. App. 529, 530 (2) (263 SE2d 268) (1979). If the child is alleged to have
violated his probation by failing to pay a fee or fine, there must be evidence that the
child “willfully refused to pay or failed to make sufficient bona fide efforts legally to
acquire the resources to pay.” Bearden v. Georgia, 461 U.S. 660, 672 (II) (103 SCt
2064, 76 LE2d 221) (1983). See Odom v. State, 312 Ga. App. 403, 404-405 (718 SE2d
329) (2011). If the child is alleged to have violated his probation by failing to complete
a required program or community service, there must be evidence that the failure was
the result of the child’s own voluntary and willful conduct rather than circumstances
outside his control. See Gray, 313 Ga. App. at 473-474 (2); Oliver v. State, 305 Ga.
App. 779, 779-780 (1) (700 SE2d 861) (2010).
In considering the sufficiency of the evidence supporting a juvenile
court adjudication of delinquency, we apply the same standard of review
that is used in any criminal case by construing the evidence in favor of the
adjudication to determine if a rational trier of fact could have found
beyond a reasonable doubt that the juvenile committed the acts charged.
11
In the Interest of J. T., 239 Ga. App. 756, 757 (521 SE2d 862) (1999). We neither weigh
the evidence nor resolve issues of witness credibility, In the Interest of M. S., 292 Ga.
App. 127, 127 (664 SE2d 240) (2008), and “[a]s long as there is some competent
evidence, even though contradicted, to support each fact necessary to make out the
[S]tate’s case, the conviction will be upheld.” (Citation and punctuation omitted.) In the
Interest of J. L. B., 280 Ga. App. 556, 560 (5) (634 SE2d 514) (2006).
Here, there was at least some evidence, construed in favor of the juvenile court’s
ruling, to support a finding beyond a reasonable doubt that J. M. A. had willfully and
voluntarily violated the conditions of his probation as alleged in the State’s delinquency
petition. More specifically, there was evidence presented at the hearing that J. M. A.
had not paid the full probation supervision fee of $75, even though his probation officer
set up a payment plan requiring low monthly payments and J. M. A. received $725 a
month in SSI benefits. Furthermore, J. M. A.’s mother conceded at the hearing that J.
M. A. had been physically able to work from his adjudication of delinquency in July
2014 until his foot injury in April 2015 and that there were lots of businesses in the
immediate area where they lived, but she was unaware of J. M. A. making any personal
effort to find any type of work. Under these circumstances, the juvenile court was
authorized to find that J. M. A. willfully refused to pay the supervision fee or failed to
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make sufficient bona fide efforts legally to acquire the resources to pay the fee, and
therefore to conclude that his failure to pay was willful and voluntary. See Odom, 312
Ga. App. at 404-405 (juvenile court entitled to find that defendant failed to make
sufficient bona fide efforts to find a job to pay restitution required by probation order).6
Additionally, there was at least some evidence that J. M. A. had willfully and
voluntarily failed to timely perform all of his community service hours. The evidence
showed that J. M. A.’s probation officer was flexible in allowing him to choose where
to perform his community service and helped him make that choice, that J. M. A found
6
Relying upon Johnson v. State, 307 Ga. App. 570, 572 (707 SE2d 373) (2011),
J. M. A. argues that the juvenile court was required to make an express finding at the
adjudicatory hearing or a written finding in its order that his failure to pay the
supervision fee was willful and that he failed to make sufficient bona fide efforts to
acquire the resources to pay. But Johnson was a probation revocation case where the
trial court imprisoned the defendant for failure to pay certain probation fees, and thus
it arguably does not apply to the present case, given that J. M. A.’s probation was not
revoked and he was not imprisoned for failing to pay the fee. In any event, since our
decision in Johnson, we have clarified that a trial court revoking probation is not
required to use “precise language,” and that we will affirm the trial court’s revocation
of probation for failure to pay a fee so long as it is clear from the record that the trial
court considered the willfulness issue and rejected the probationer’s reasons for being
unable to pay. See Odom, 312 Ga. App. at 404-405. And, here, it is clear from the
specific arguments raised by J. M. A. at the adjudicatory hearing, and the juvenile
court’s statements in response to those arguments, that the court considered the
willfulness issue and rejected J. M. A.’s reasons for being unable to pay the supervision
fee. See id.
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a place where he could perform his service hours despite having transportation issues,
and that J. M. A. had many months in which he could have completed his hours before
his foot injury in April 2015. Nevertheless, the evidence showed that J. M. A.
performed only a portion of his community service hours during his probationary term
and waited until many months after the term had ended before completing his service.
Given this record, the juvenile court was entitled to find that J. M. A.’s failure to timely
complete his community service hours was willful and voluntary. See, e.g., Oliver, 305
Ga. App. at 779-780 (1) (defendant failed to complete treatment program as a result of
his own poor decisions).
For these combined reasons, we conclude that there was sufficient evidence for
the juvenile court to adjudicate J. M. A. delinquent for violating the conditions of his
probation. The juvenile court’s adjudicatory order therefore is affirmed.
Judgment affirmed. Rickman and Self, JJ., concur.
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