In re P.Q.M. , 232 N.C. App. 419 ( 2014 )

NO. COA13-899
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
IN THE MATTER OF:
P.Q.M. Gaston County
No. 11 JB 146
Appeal by juvenile from order entered 7 March 2013 by Judge
Ralph C. Gingles in Gaston County District Court. Heard in the
Court of Appeals 8 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gerald K. Robbins, for the State.
James N. Freeman, Jr., for juvenile-appellant.
CALABRIA, Judge.
Juvenile P.Q.M. (“Paul”)1 appeals from a disposition order
committing him to a youth development center (“YDC”) of the North
Carolina Division of Juvenile Justice for a minimum of six months
and a maximum term not to exceed his eighteenth birthday. We
affirm.
I. Background
1 We use this pseudonym to protect the juvenile’s privacy and for
ease of reading.
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Paul was adjudicated delinquent on 29 November 2012 in
Cleveland County for robbery with a dangerous weapon (“RWDW”), a
Class D felony pursuant to N.C. Gen. Stat. § 14-87 (2011). On 5
January 2012, Paul was adjudicated delinquent for, inter alia,
communicating threats pursuant to N.C. Gen. Stat. § 14-277.1(2011), a Class 1 misdemeanor. On 3 December 2012, Paul was again
adjudicated delinquent in Gaston County for, inter alia, larceny
of a firearm, a Class H felony pursuant to N.C. Gen. Stat. § 14-
72 (2011). The Cleveland County adjudication for RWDW was
transferred to Gaston County and all of Paul’s adjudications were
calendared for disposition in Gaston County.
The disposition hearing on 4 March 2013 in Gaston County
District Court included all three of Paul’s adjudications. The
trial court found three delinquency history points, a high
delinquency level, that Paul had previously been adjudicated
delinquent for two or more felony offenses, and that he had
previously been committed to a YDC. Therefore, the trial court
entered a Level 3 disposition. On 7 March 2013, the trial court
entered an amended Level 3 disposition (“the amended order”). In
both the original and the amended order, the trial court found
that Paul’s most serious offense was RWDW. The amended order
indicated that Paul had been adjudicated for a violent or serious
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offense pursuant to N.C. Gen. Stat. § 7B-2508 (2011). In the
amended order, the trial court again found, pursuant to N.C. Gen.
Stat. § 7B-2507(a) (2011), Paul had three delinquency history
points: two for the larceny of a firearm offense, and one for the
communicating threats offense. The trial court imposed a Level 3
disposition. However, the amended order added Paul’s adjudication
for communicating threats on 5 January 2012 and deleted Paul’s 3
December 2012 Breaking and Entering (“B & E”) offense.2
The trial court amended Paul’s delinquency history level and
found that Paul had a medium delinquency level rather than a high
delinquency level. The trial court ordered Paul committed to a
YDC for a minimum of six months and a maximum term not to exceed
his eighteenth birthday. Paul appeals only the amended order.
Paul’s adjudications are undisputed.
II. Standard of Review
On appeal, this Court “will not disturb a trial court’s ruling
regarding a juvenile’s disposition absent an abuse of discretion,
2 Paul’s B & E and larceny of a firearm offenses are both Class H
felonies adjudicated in the same session of juvenile court, and
pursuant to N.C. Gen. Stat. § 7B-2507(d) (2011), only one of these
offenses could be included in the disposition. (“For purposes of
determining the delinquency history level, if a juvenile is
adjudicated delinquent for more than one offense in a single
session of district court, only the adjudication for the offense
with the highest point total is used.”)
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which occurs when the trial court’s ruling is so arbitrary that it
could not have been the result of a reasoned decision.” In re J.B.,
172 N.C. App. 747, 751, 616 S.E.2d 385, 387 (2005) (citation and
quotation marks omitted). “Although the trial court has discretion
under N.C. Gen. Stat. § 7B-2506 [] in determining the proper
disposition for a delinquent juvenile, the trial court shall select
a disposition that is designed to protect the public and to meet
the needs and best interests of the juvenile[.]” In re Ferrell,
162 N.C. App. 175, 176, 589 S.E.2d 894, 895 (2004) (citations
omitted). Accordingly, the court “shall select the most
appropriate disposition both in terms of kind and duration for the
delinquent juvenile.” N.C. Gen. Stat. § 7B-2501(c) (2011).
III. Consolidation of Offenses
Paul argues that the trial court erroneously calculated his
prior history level and erred in entering a Level 3 rather than a
Level 2 disposition. In addition to the improper calculation,
Paul contends the trial court failed to properly consolidate his
offenses and also failed to consider his extraordinary needs that
warranted a Level 2 rather than a Level 3 disposition. We
disagree.
After a juvenile is adjudicated delinquent, the level of
punishment depends on “the juvenile’s delinquency history and the
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type of offense committed.” In re Robinson, 151 N.C. App. 733,
737, 567 S.E.2d 227, 229 (2002). The court determines the
delinquency history level “by calculating the sum of the points
assigned to each of the juvenile’s prior adjudications and to the
juvenile’s probation status, if any[.]” N.C. Gen. Stat. § 7B-
2507(a) (2011). “If a juvenile is adjudicated of more than one
offense during a session of juvenile court, the court shall
consolidate the offenses . . . and impose a single disposition .
. . . The disposition shall be specified for the class of offense
and delinquency history level of the most serious offense.” N.C.
Gen. Stat. § 7B-2508(h) (2011). “‘Session’ is not defined within
the definitions section of the Juvenile Code, but is defined in
case law as that which designates the typical one-week assignment
to a particular location during the term.” In re D.R.H., 194 N.C.
App. 166, 169, 668 S.E.2d 919, 921 (2008) (citation and quotation
marks omitted).
In the instant case, Paul was adjudicated delinquent on three
different days in three different calendar weeks in three different
sessions. Paul was first adjudicated on 5 January 2012 for
communicating threats pursuant to N.C. Gen. Stat. § 14-277.1(2011), a Class 1 misdemeanor. On Thursday, 29 November 2012, he
was adjudicated delinquent for RWDW, a Class D felony pursuant to
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N.C. Gen. Stat. § 14-87 (2011), in Cleveland County, which is in
Judicial District 27B. On Monday, 3 December 2012, Paul was
adjudicated delinquent for larceny of a firearm, a Class H felony
pursuant to N.C. Gen. Stat. § 14-72 (2011), in Gaston County, which
is in Judicial District 27A.
The trial court clearly transferred Paul’s RWDW adjudication
from Cleveland County to Gaston County for disposition. The
Cleveland County adjudication order states that “[t]he legal file
and disposition are to be transferred to Gaston County.” Merely
transferring an adjudication to another county for disposition
does not require the court to consolidate offenses that were
adjudicated in separate sessions of juvenile court in a
disposition. In addition, the order on its face did not require
or order the Cleveland County adjudication consolidated with the
Gaston County adjudication for disposition. Therefore, the trial
court was not required to consolidate the offenses for disposition,
and the consolidation requirement of N.C. Gen. Stat. § 7B-2508(h)
does not apply.
IV. Prior Adjudication
Paul further contends that since his adjudication for larceny
of a firearm was on 3 December 2012 and for RWDW was on 29 November
2012, the trial court improperly considered the larceny of a
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firearm offense as a prior adjudication. Since the Juvenile Code
does not provide a definition of “prior adjudication,” we turn to
criminal law in order to resolve this procedural issue. This Court
has compared and analogized criminal statutes with juvenile
statutes to resolve procedural issues. See In re D.R.H., 194 N.C.
App. at 170, 668 S.E.2d at 921 (analogizing proof of prior juvenile
adjudications with proof of prior criminal convictions); see In re
Griffin, 162 N.C. App. 487, 493, 592 S.E.2d 12, 16 (2004)
(analogizing juvenile petitions with felony indictments). “A
person has a prior conviction when, on the date a criminal judgment
is entered, the person being sentenced has been previously
convicted of a crime[.]” N.C. Gen. Stat. § 15A-1340.11(7) (2011).
See also N.C. Gen. Stat. § 15A-1331(b) (2011) (“For the purpose of
imposing sentence, a person has been convicted when he has been
adjudged guilty or has entered a plea of guilty or no contest.”).
In the instant case, Paul was adjudicated for RWDW on
Thursday, 29 November 2012. The following week, on Monday, 3
December 2012, in a different session of court from the prior week,
Paul was adjudicated for larceny of a firearm. Although the
dispositional hearing for Paul’s offenses was not held until 4
March 2013, the adjudication, which is similar to a conviction, of
Paul’s larceny of a firearm offense occurred prior to the 4 March
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2013 disposition hearing and entry of the disposition. Therefore,
the trial court properly considered Paul’s larceny of a firearm
offense as a “prior adjudication” pursuant to N.C. Gen. Stat. §
7B-2507(a) (2011).
V. Level 3 Disposition
Paul also argues the trial court erred in ordering a Level 3
disposition when evidence supporting extraordinary needs warranted
a Level 2 disposition. We disagree.
“Based upon the delinquency history level determined pursuant
to G.S. § 7B-2507, and the offense classification for the current
offense, N.C. Gen. Stat. § 7B-2508 then dictates the dispositional
limits available.” In re Allison, 143 N.C. App. 586, 597, 547
S.E.2d 169, 176 (2001). When the dispositional chart prescribes
a Level 3 disposition, the trial court shall commit the adjudicated
juvenile to a YDC. N.C. Gen. Stat. § 7B-2508(e) (2011). “However,
a court may impose a Level 2 disposition rather than a Level 3
disposition if the court submits written findings on the record
that substantiate extraordinary needs on the part of the offending
juvenile.” Id. “[C]hoosing between two appropriate dispositional
levels is within the trial court’s discretion. Absent an abuse of
discretion, we will not disturb the trial court’s choice. An abuse
of discretion occurs when the trial court’s ruling is so arbitrary
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that it could not have been the result of a reasoned decision.”
In re Robinson, 151 N.C. App. at 737, 567 S.E.2d at 229 (citation
and quotation marks omitted). In choosing a disposition,
the court shall select a disposition that is
designed to protect the public and to meet the
needs and best interests of the juvenile,
based upon:
(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.
N.C. Gen. Stat. § 7B-2501(c) (2011). This Court has previously
upheld a Level 3 disposition for a juvenile who had no prior
delinquency history, had a low risk of re-offending, and a low
needs assessment. In re N.B., 167 N.C. App. 305, 310-11, 605
S.E.2d 488, 491-92 (2004). The juvenile in N.B. had been
adjudicated delinquent for assault with a deadly weapon inflicting
serious injury, and the trial court had the authority to impose
either a Level 2 or Level 3 disposition pursuant to N.C. Gen. Stat.
§ 7B-2508(f). Id. at 311, 605 S.E.2d at 492. This Court held
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that the juvenile failed to show the trial court’s decision to
impose a Level 3 disposition amounted to an abuse of discretion.
Id.In the instant case, since Paul was previously adjudicated
delinquent, the trial court determined Paul’s delinquency history
level to be medium. With a violent offense and a medium
delinquency level, a Level 3 disposition is required pursuant to
N.C. Gen. Stat. § 7B-2508(f) (2011). However, the court had the
discretion to impose either a Level 2 disposition with written
findings of Paul’s extraordinary needs or a Level 3 disposition.
N.C. Gen. Stat. § 7B-2508(e) (2011).
The trial court heard evidence from several witnesses
involved in Paul’s case to determine which level of disposition to
impose. Specifically, the court heard evidence from Juvenile Court
Counselor Stephania Sarvis (“Sarvis”); Dr. Stephen Strezlecki
(“Dr. Strezlecki”), a psychologist working with juveniles involved
with the court system; family therapist Logan Cohen (“Cohen”); and
mental health professional Rory Barrington (“Barrington”). The
court also considered and incorporated by reference a
predisposition report, a risk assessment, and a needs assessment.
Paul had been evaluated in the assessments as presenting a medium
risk and having medium needs.
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At the disposition hearing, Sarvis testified that Paul was
suspended from the alternative school he had been attending when
the alternative school was notified of the pending RWDW offense.
Sarvis recommended a Level 3 disposition and commitment to a YDC
where Paul could resume his schooling immediately, receive
individual, group, and family counseling, and remain on any
currently prescribed medications. According to Sarvis, the
counseling available at the YDC enables juvenile offenders to
“understand the seriousness of their offense [sic] and they can
get a perspective from the victim’s point of view[.]” She also
indicated that placement with a YDC would provide Paul with his
treatment needs, be rehabilitative, and also provide some measure
of protection to public safety.
Dr. Strezlecki performed a psychological evaluation on Paul
on 9 January 2013 as part of Paul’s involvement in the juvenile
court system. Dr. Strezlecki testified that, based upon “a
combination of reviewing [Paul’s] history in terms of involvement
with the juvenile court system, as well as behavioral difficulties
at school, and also looking at his more recent history” of
detention and house arrest, Paul needed a high level of structure.
Dr. Strezlecki specifically recommended to the court that Paul
should have “a highly structured supervised residential
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placement,” because it did not appear that Paul could receive the
level of structure he needed at home.
Cohen and Barrington both testified on Paul’s behalf
regarding the therapeutic services they provided through Support,
Incorporated (“Support”). Cohen had been providing Paul with in-
home therapy since November 2012. At the time of the hearing,
Cohen was providing Paul with therapy for two hours per day, four
days a week. Barrington testified that he and Paul had been
participating in volunteer work for a local animal shelter as part
of Paul’s therapy. Cohen and Barrington stressed the importance
of Paul’s awareness of his behavior and acknowledging
accountability for his actions as part of his treatment plan, and
both testified to Paul’s positive progress in the Support therapy
program. However, while Cohen and Barrington both indicated Paul
was making positive progress in the Support program, the risk and
needs assessments in the record indicated that Paul presented a
medium risk and had medium needs.
The court heard and considered the evidence of all the
witnesses, as well as the needs and risk assessments. There is
nothing in the record to indicate that the court’s failure to find
that Paul had extraordinary needs was so arbitrary that it could
not have been the result of a reasoned decision. Just as the
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juvenile in N.B. with a low risk and low needs assessment failed
to show that the trial court abused its discretion by imposing a
Level 3 disposition, here Paul also has failed to show that the
trial court’s decision to impose a Level 3 disposition amounted to
an abuse of discretion. In re N.B. at 311, 605 S.E.2d at 492.
VI. Conclusion
The trial court heard and considered the evidence presented
at the disposition hearing and properly selected a Level 3
disposition based on the seriousness of the offense; the need to
hold Paul accountable; the importance of public safety; Paul’s
degree of culpability; and Paul’s rehabilitative and treatment
needs as indicated by the risk and needs assessments. N.C. Gen.
Stat. § 7B-2501(c) (2011). In addition, the trial court selected
the Level 3 disposition after considering Paul’s rehabilitation
and treatment needs and decided the disposition would meet Paul’s
best interests. Id. Therefore, the trial court made a reasoned
decision and did not abuse its discretion in imposing the Level 3
disposition. We affirm the trial court’s order committing Paul to
a YDC for a minimum of six months and a maximum term not to exceed
his eighteenth birthday.
Affirmed.
Judges BRYANT and GEER concur.