State v. Johnson , 5 N.C. App. 469 ( 1969 )

168 S.E.2d 709 (1969) 5 N.C. App. 469

STATE of North Carolina
v.
Tony Ervin JOHNSON.

No. 697SC44.

Court of Appeals of North Carolina.

July 23, 1969.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. George A. Goodwyn, for the State.

John E. Davenport, Nashville, for defendant appellant.

PARKER, Judge.

The sole assignment of error in the record is that the court erred in pronouncing an excessive, cruel and unreasonable punishment and that the record proper does not support the judgment. Appellant's brief sets forth no argument and cites no authority in support of the contention that the punishment imposed was excessive. Therefore, that portion of the assignment of error is deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals; State v. Jetton, 1 N.C.App. 567, 162 S.E.2d 102. In any event it is clear that the sentence imposed was within statutory limits and cannot be considered excessive, cruel or unreasonable. State v. Parrish, 273 N.C. 477, 160 S.E.2d 153; State v. Robinson, 271 N.C. 448, 156 S.E.2d 854; State v. Bruce, 268 N.C. 174, 150 S.E.2d 216.

In his brief appellant argues that the record proper does not support the judgment in that he was denied constitutional due process at the hearing in the juvenile court which resulted in the order of that court waiving its jurisdiction and binding defendant over for trial in the superior court. Specifically, he contends that (1) the record proper does not show service of a copy of the petition on which the juvenile court's order was entered upon defendant or upon his parents, and (2) the juvenile court did not advise defendant of his right to be represented by counsel and to be supplied counsel if he were found indigent. Defendant argues that the decision of the Supreme Court of the United States in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84, as read in the light of the later decision in the case of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527, imposed constitutional standards of due process upon state juvenile court proceedings held for the purpose of determining whether the juvenile court should waive its jurisdiction so that the juvenile might be tried as an adult in the criminal courts. At the outset, it may be noted that the authorities are not altogether in agreement as to whether Kent, even when read in the light of Gault, had the effect of imposing constitutional standards of due process upon such state juvenile court proceedings, as contrasted with proceedings in state juvenile courts which may lead directly to confinement of the juvenile. For decisions that constitutional standards are applicable to waiver proceedings in state juvenile courts see State v. Steinhauer, 216 So. 2d 214 (Fla.1968); In re Harris, 67 Cal. 2d 876, 64 Cal. Rptr. 319, 434 P.2d 615; Smith v. Commonwealth, 412 S.W.2d 256 (Ky.1967), cert. denied, 389 U.S. 873, 88 S. Ct. 162, 19 L. Ed. 2d 155. For decisions contra see Cradle v. Peyton, 208 Va. 243, 156 S.E.2d 874, cert. denied, 392 U.S. 945, 88 S. Ct. 2296, 20 L. Ed. 2d 1407; Stanley v. Peyton, 292 F. Supp. 209 (D.C.). For discussion of the entire problem see Schornhorst, The Waiver of Juvenile Court Jurisdiction: Kent Revisited, 43 Ind.L.J. 583.

We do not deem it either necessary or proper, however, in the present case to decide the question which defendant seeks to raise by the argument presented in his brief, since the question is not presented by the record before us. In the first place, the record before us does not indicate that no notice of the juvenile court hearing was given defendant and his parents nor does it indicate that they were not in fact present at that hearing; it is merely silent on the subject. Nor does the record disclose that at the hearing defendant was not advised of his right to be represented by counsel or to have counsel appointed for him if he could not afford one; again, the record is merely silent on the subject. The record does affirmatively show that defendant was represented by counsel (whether privately employed or court-appointed not being shown) at the time of his trial in superior court. "Unless the contrary is made to appear, it will be presumed that judicial acts and duties have been duly and regularly performed. Where the record is silent upon a particular point, the action of the trial judge will be presumed correct." 1 Strong, N.C. Index 2d, Appeal and Error, § 46, p. 191.

More importantly, the record before us does affirmatively show that when defendant was brought to trial in superior court, at which time the record shows he was represented by counsel, he pleaded guilty. At that time he failed to raise any question as to the validity of the juvenile court proceedings which had resulted in his being bound over for trial in the superior court pursuant to G.S. § 110-29(6). By his failure to raise the question in superior court and by his plea of guilty, defendant waived any defect, if indeed any existed, in the proceedings in the juvenile court which resulted in his being brought to trial in the superior court. Eyman v. Superior Court for County of Pinal, 9 Ariz.App. 6, 448 P.2d 878; Neller v. State, 79 N.M. 528, 445 P.2d 949. As stated by Parker, J., (now C.J.) in State v. Doughtie, 238 N.C. 228, 231, 77 S.E.2d 642, 644: "Any defect in the process by which a defendant is brought into court may be waived by him appearing before the court having jurisdiction of the case. State v. Turner, supra (170 N.C. 701, 86 S.E. 1019); State v. Cale, supra (150 N.C. 805, 63 S.E. 958). The defendant may waive a constitutional right relating to a mere matter of practice or procedure. Miller v. State, 237 N.C. 29, 74 S.E.2d 513."

In the judgment appealed from, we find

No error.

MALLARD, C. J., and BRITT, J., concur.