In re J.L. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-539
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
IN THE MATTER OF: Orange County
No. 12 JB 99
J.L.
Appeal by juvenile from adjudication order entered 19
December 2012 by Judge Joseph Buckner and disposition order
entered 17 January 2013 by Judge James T. Bryan, III in Orange
County District Court. Heard in the Court of Appeals 10 October
2013.
Roy Cooper, Attorney General, by Karissa J. Davan,
Assistant Attorney General, for the State.
Staples Hughes, Appellate Defender, by David W. Andrews,
Assistant Appellate Defender, for juvenile-appellant.
DAVIS, Judge.
J.L. (“Janet”),1 a juvenile, appeals from (1) an order
adjudicating her delinquent for committing the offenses of
1
Pseudonyms are used throughout this opinion to protect the
privacy of the juvenile and for ease of reading.
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communicating threats, disorderly conduct at school, and assault
on a government officer; and (2) the dispositional order placing
her on probation for 12 months. On appeal, Janet argues that
the trial court erred by (1) failing to make written findings of
fact in its dispositional order as required by N.C. Gen. Stat. §
7B-2512; (2) imposing conditions of probation that were
unrelated to her needs and improperly delegated the authority of
the court; and (3) denying defense counsel’s motion for a
continuance. After careful review, we dismiss her appeal in
part, affirm in part, vacate in part, and remand for further
proceedings.
Factual Background
On 5 October 2012, Jessica Crowley (“Ms. Crowley”), an art
teacher at C.W. Stanford Middle School in Hillsborough, observed
Janet — a thirteen-year-old female — typing an email containing
inappropriate language on a laptop computer during class. Ms.
Crowley confiscated the laptop and began walking down the hall
towards the school administrator’s office. Janet followed Ms.
Crowley into the hall, tried to forcibly take the computer from
her, and told Ms. Crowley that she was going to “kick [her] in
the stomach if [she] didn’t let go.” At the time of this
incident, Ms. Crowley was a little more than 20 weeks pregnant.
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Ms. Crowley released the computer to Janet while another
teacher, Shannon Dixon (“Ms. Dixon”), followed Janet down the
hallway.
Ms. Sheila McDonald (“Ms. McDonald”), the school
administrator, saw Janet talking to Ms. Dixon in the hallway.
Janet refused to give the laptop to Ms. McDonald and told her to
“keep away from [me], don’t touch [me].” Ms. McDonald ordered
Janet to go speak with Andrew Wagoner (“Mr. Wagoner”), the
discipline coordinator for the school. Mr. Wagoner was able to
convince Janet to turn over the laptop and write a statement
about what happened. Deputy Christy Faircloth (“Deputy
Faircloth”), the school resource officer, entered the room.
Deputy Faircloth received a call over her radio from the school
principal, Anne Purcell, informing Deputy Faircloth that Ms.
Crowley was in her office and wished to speak with Deputy
Faircloth about possibly pressing charges. Janet overheard this
discussion about possible charges against her on Deputy
Faircloth’s radio. At that point, Janet became upset, walked
out of the room, and left the school building. When Ms.
McDonald refused to allow her to re-enter the building, Janet
picked up a handful of rocks and threw them at Ms. McDonald’s
face and neck.
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Deputy Faircloth then restrained Janet with handcuffs and
escorted her back inside the school building. Janet struggled
to get free and “raked” her teeth across Deputy Faircloth’s
right forearm. She was placed in a school conference room where
she pulled items out of cabinets, threw objects, pulled a phone
cord out of the wall, and attempted to stick her finger into an
electrical socket. Deputy Faircloth subsequently filed a
petition to have Janet involuntarily committed. Juvenile
petitions were filed charging Janet with communicating threats,
disorderly conduct at school, and three counts of assault on a
government officer.
The matter was originally calendared for hearing on 21
November 2012 in Orange County District Court. On that date,
both parties consented to a continuance until 19 December 2012.
At the 19 December hearing, Janet’s newly retained attorney
moved for a second continuance, arguing that she had not had an
adequate opportunity to obtain certain discovery and medical
records and that going forward with the hearing would deprive
Janet of the effective assistance of counsel. The motion was
denied, and the hearing on adjudication took place that day.
At the adjudicatory hearing, Chief District Court Judge
Buckner adjudicated Janet delinquent with respect to each charge
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and calendared the dispositional hearing for 16 January 2013.
Judge Bryan presided over Janet’s 16 January dispositional
hearing and placed her on probation for 12 months. As part of
the conditions of her probation, Judge Bryan ordered Janet to
complete 12 months of psychiatric medication management support,
cooperate with routine psychiatric check-ups, perform 35 hours
of community service, participate in the Victim-Offender
Reconciliation program, abide by a curfew, not possess any
alcohol or controlled substances, and not associate with persons
or be in places specified by the court counselor. Janet filed a
timely notice of appeal to this Court.
Analysis
I. Mootness
As an initial matter, we must address whether this Court is
able to provide Janet with any meaningful relief, given that her
12-month probationary period has expired. “As a general
proposition, a pending appeal from a particular judgment or
order which has been fully effectuated is moot because a
subsequent appellate decision ‘cannot have any practical effect
on the existing controversy.’” In re J.L.H., ___ N.C. App. ___,
___, 750 S.E.2d 197, 200 (2013) (quoting In re A.K., 360 N.C.
449, 452, 628 S.E.2d 753, 755 (2006)). However, “if collateral
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legal consequences of an adverse nature can reasonably be
expected to result therefrom, then the issue is not moot and the
appeal has continued legal significance.” In re Hatley, 291
N.C. 693, 694, 231 S.E.2d 633, 634 (1977).
Here, Janet concedes that her second argument on appeal is
moot as it involves the conditions of her probationary term,
which has already expired. Specifically, that issue stemmed
from her contention that the trial court erred by (1) imposing
conditions of her probation that were not related to her needs;
and (2) improperly delegating its authority to the Department of
Juvenile Justice and to a psychologist. Therefore, we dismiss
that portion of her appeal on mootness grounds.
However, Janet contends that her first and third arguments
on appeal — that the trial court erred by (1) entering a
dispositional order without making sufficient written findings
of fact; and (2) denying her motion for a continuance of the
adjudication hearing — are not moot. She asserts that the
dispositional order, unless vacated, is likely to result in
adverse legal consequences to her because it could affect the
outcome of a subsequent petition filed against her on 20
December 2013 alleging that she committed the offense of simple
assault. We agree.
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When a district court enters a dispositional order in a
juvenile delinquency proceeding, it must determine the
juvenile’s delinquency history level. N.C. Gen. Stat. § 7B-2508
(2013). A juvenile’s delinquency history level is calculated
based on the number and type of the juvenile’s prior
adjudications. N.C. Gen. Stat. § 7B-2507 (2013). However, the
juvenile will also receive a higher delinquency history level if
the juvenile was on probation when she committed the offense for
which she was adjudicated delinquent. N.C. Gen. Stat. § 7B-
2507(b)(4) (2013).
Janet faces a more severe disposition regarding the 20
December 2013 petition because she purportedly committed this
offense while subject to the probationary term outlined in the
original dispositional order at issue in this appeal.
Accordingly, if the dispositional order in this case remains in
effect, it will likely have a direct adverse impact on Janet
because she will be subject to a higher disposition level, which
could result in more severe dispositional alternatives. N.C.
Gen. Stat. § 7B-2508. Therefore, we conclude that the issues
raised in Janet’s first and third arguments on appeal are not
moot. See J.L.H., ___ N.C. App. at ___, 750 S.E.2d at 201
(holding that juvenile’s argument challenging extension of his
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commitment was not moot although he had already been released
because “a decision by this Court to the effect that [his]
period of commitment had been improperly extended would, in
actuality, have a practical impact on [his] life”).
II. Dispositional Order
Janet’s first argument on appeal is that the trial court
erred by failing to make sufficient written findings to support
its dispositional order. We agree.
Pursuant to N.C. Gen. Stat. § 7B-2512, “[t]he dispositional
order shall be in writing and shall contain appropriate findings
of fact and conclusions of law.” When selecting a permissible
disposition in a juvenile proceeding that will “protect the
public” and “meet the needs and best interests of the juvenile,”
a trial court must consider the following factors:
(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.
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N.C. Gen. Stat. § 7B-2501(c)(1)-(5) (2013).
In recognition of these statutory provisions, we have held
that a court is required to make findings of fact in the
juvenile’s written dispositional order “demonstrating that it
considered the N.C.G.S. § 7B-2501(c) factors . . . .” In re
J.J., 216 N.C. App. 366, 375, 717 S.E.2d 59, 65 (2011) (citation
and quotation marks omitted).
Where a trial court has failed to make these requisite
findings, we are required to vacate the dispositional order and
remand “for entry of the statutorily mandated written findings
of fact in the juvenile’s . . . dispositional order[].” Id. at
376, 717 S.E.2d at 66. On remand, “the trial court retains the
discretion to take additional evidence if the need arises in
making the requisite findings of fact . . . .” Id. at 376-77,
717 S.E.2d at 66.
Here, the trial court failed to make the statutorily
required findings. The trial court used a pre-printed form
labeled “Juvenile Level 1 Disposition Order (Delinquent),” on
which the trial court checked boxes indicating that it had
considered a predisposition report, risk assessment, and needs
assessment. The trial court did not address the § 7B-2501(c)
factors in the portion of the form instructing the court to
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“[s]tate any findings regarding the seriousness of the
offense(s); the need to hold the juvenile accountable; the
importance of protecting the public; the degree of the
juvenile’s culpability; the juvenile’s rehabilitative and
treatment needs; and available and appropriate resources.”
Instead, the trial court used this portion of the order to
note that Janet was also adjudicated delinquent for
communicating threats and disorderly conduct.2 The trial court
did not make any written findings concerning (1) the seriousness
of the offense; (2) the need to hold Janet accountable; (3) the
importance of protecting public safety; (4) the degree of
culpability indicated by the circumstances of the case; and (5)
Janet’s rehabilitative and treatment needs.
As such, we vacate the dispositional order and remand to
the trial court so that it may make the requisite findings
concerning the § 7B-2501(c) factors. See In re V.M., 211 N.C.
App. 389, 392, 712 S.E.2d 213, 215-16 (2011) (reversing and
remanding dispositional order where trial court used pre-printed
form order and checked boxes on form indicating evidence
considered in juvenile’s disposition but did not make any
2
The three counts of assault on a government officer were listed
as “the most serious offense[s] before the Court today, which
provide the basis for disposition.”
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findings of fact indicating it had considered required statutory
factors).
III. Motion for Continuance
Janet’s final argument on appeal is that the trial court’s
denial of her trial counsel’s motion for a continuance deprived
her of effective assistance of counsel. Generally, “[a] motion
to continue is addressed to the court’s sound discretion and
will not be disturbed on appeal in the absence of abuse of
discretion.” In re C.L., ___ N.C. App. ___, ___, 719 S.E.2d
132, 136 (2011) (citation and quotation marks omitted).
“However, when a motion to continue raises a constitutional
issue . . . the trial court’s ruling is fully reviewable by an
examination of the particular circumstances of each case.”
State v. Rogers, 352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000)
(citation and quotation marks omitted); see also State v.
McFadden, 292 N.C. 609, 616, 234 S.E.2d 742, 747 (1977) (holding
that trial court’s denial of defendant’s motion for continuance
deprived defendant of constitutional right to obtain counsel of
his choice). “[T]he denial of a motion to continue, whether a
constitutional issue is raised or not, is sufficient grounds for
the granting of a new trial only when the defendant is able to
show that the denial was erroneous and that he suffered
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prejudice as a result of the error.” Rogers, 352 N.C. at 124,
529 S.E.2d at 675.
Pursuant to N.C. Gen. Stat. § 7B-2406,
[t]he court for good cause may continue the
[adjudicatory] hearing for as long as is
reasonably required to receive additional
evidence, reports, or assessments that the
court has requested, or other information
needed in the best interests of the juvenile
and to allow for a reasonable time for the
parties to conduct expeditious discovery.
Otherwise, continuances shall be granted
only in extraordinary circumstances when
necessary for the proper administration of
justice or in the best interests of the
juvenile.
N.C. Gen. Stat. § 7B-2406 (2013).
Here, Janet’s case was first calendared for hearing on 21
November 2012. Janet was represented by an Orange County
Assistant Public Defender, and it appears from the record that
both parties consented to a continuance on this date because
Janet had not yet spoken to her attorney. On 14 December 2012,
Janet retained new counsel, and her case came on for hearing on
19 December 2012. Janet’s new counsel then moved for another
continuance, arguing that she (1) had not had the opportunity to
fully investigate the case; (2) was waiting on Janet’s medical
records; (3) had a duty to look further into potential mental
health defenses; and (4) believed that proceeding with the trial
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at that time would deprive Janet of the effective assistance of
counsel.
The trial court denied counsel’s motion to continue the
adjudicatory hearing but continued the disposition hearing until
16 January 2013. Janet’s counsel was also permitted to make an
offer of proof in which she stated that had her motion for a
continuance been granted, she would have (1) obtained and
examined Janet’s involuntary commitment paperwork and records as
well as the video recording her transportation to UNC Hospital;
and (2) spoken with other witnesses who observed her behavior
during the subject incident.
“The right to effective assistance of counsel includes, as
a matter of law, the right of client and counsel to have
adequate time to prepare a defense.” In re Bishop, 92 N.C. App.
662, 666, 375 S.E.2d 676, 679 (1989). “Unlike claims of
ineffective assistance of counsel based on defective performance
of counsel, prejudice is presumed in cases where the trial court
fails to grant a continuance which is essential to allowing
adequate time for trial preparation.” Id. (citation and
quotation marks omitted.) However, “[w]here the lack of
preparation for trial is due to a party’s own actions, the trial
court does not err in denying a motion to continue.” Id.-14-
In the present case, when trial counsel moved for a
continuance on 19 December 2012, the prosecutor stated,
This case was originally set on November
21st, and at that time, Mr. Mack [the
assistant public defender] and I had a
proposed disposition worked out. The
juvenile, at that time, said that she did
not want to go forward with Mr. Mack, and
that, she wanted to hire private counsel;
that was November 21st. And so, the Court,
at that time, informed the juvenile that she
would need to make arrangements and be –
need to be ready to go forward today.
Thus, Janet had voiced her decision to retain counsel at her
first court appearance but waited over three weeks (and until
five days before her next hearing date) to actually hire a new
attorney. As such, Janet was at least partially responsible for
the fact that her counsel was not fully prepared for the 19
December 2012 adjudicatory hearing.
Moreover, Janet has not adequately demonstrated that the
denial of a continuance resulted in her inability to adequately
prepare for trial. Janet’s prior counsel had approximately a
month to prepare her case, and Janet offered no explanation as
to why the results of that preparation would not have been
available to her newly retained counsel. Furthermore, our
review of the transcript reveals that Janet’s new counsel
effectively cross-examined witnesses, demonstrated familiarity
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with the facts of the case, and made a competent closing
argument. Therefore, Janet has failed to establish that she was
actually prejudiced by the denial of the motion for a
continuance.
As such, we cannot say that the trial court committed
reversible error in denying Janet’s motion for a continuance.
Therefore, this argument is overruled.
Conclusion
For the reasons stated above, we conclude that (1) Janet’s
arguments relating to the conditions of her probation are
dismissed as moot; (2) the trial court’s dispositional order is
hereby vacated and this case is remanded for the entry of a new
dispositional order containing the statutorily required
findings; and (3) the trial court did not commit reversible
error in denying Janet’s motion for a continuance.
DISMISSED IN PART; AFFIRMED IN PART; VACATED AND REMANDED
IN PART.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).