Matter of Johnson

232 S.E.2d 486 (1977) 32 N.C. App. 492

In the Matter of Donald Fletcher JOHNSON.

No. 7626DC730.

Court of Appeals of North Carolina.

March 2, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William Woodward Webb, Raleigh, for the State.

Public Defender Michael S. Scofield by Asst. Public Defender Mark A. Michael, Charlotte, for the juvenile.

BROCK, Chief Judge.

After hearing evidence from the arresting officer, the following transpired:

"THE COURT: I want to know at this time if the juvenile admits or denies the allegations of the Petition?

"COUNSEL FOR THE JUVENILE:

He admits them."

No further inquiries were made concerning the admission made by counsel.

Thereafter, in the adjudicatory phase of the proceeding, the trial judge made the following finding:

"THE COURT FINDS that the juvenile, through counsel, in open court, admits the allegations in the Petition dated March 8, 1976, to wit: carrying a concealed weapon on school grounds. Based on the juvenile's admission THE COURT FINDS that the juvenile did in fact carry a concealed weapon on the school grounds, to wit: a large Barlow knife, and adjudicated the juvenile DELINQUENT by reason thereof."

The juvenile urges that the finding based upon his admission should not be permitted to stand because there is no affirmative showing that the admission was intelligently and voluntarily made. We agree.

Such an admission is the equivalent to a plea of guilty by an adult in a criminal prosecution. This Court, in In re Chavis and In re Curry and In re Outlaw, 31 N.C. App. 579, 230 S.E.2d 198 (1976), has already applied the principle of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Harris, 10 N.C.App. 553, 180 S.E.2d 29 (1971); and State v. Ford, 281 N.C. 62, 187 S.E.2d 741 (1972), to juvenile proceedings.

In a juvenile hearing to determine delinquency, which may lead to commitment to a state institution, an admission by the juvenile of the allegations of the petition must be made with awareness of the consequences of the admission and must be made understandingly and voluntarily, and these facts must affirmatively appear in the record of the proceeding. In the record before us there is nothing to indicate the existence of any of these facts.

Since there must be a new hearing, we point out that the trial judge did not indicate the quantum of proof upon which he found the fact that the juvenile carried a concealed weapon on school grounds. The proper quantum of proof in a juvenile hearing to determine delinquency is proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Our Supreme Court has held that "the failure of the trial judge to state that he finds the facts ``beyond a reasonable doubt' is not fatal if the evidence is sufficient to support his findings by that quantum of proof . . . in the absence of record evidence that the trial judge followed some other standard, there is a permissible inference that he followed the applicable law and found the facts beyond a reasonable doubt . . ." In re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972). Nevertheless, as the Court pointed out in Walker, the sounder practice dictates that the judge's order should recite affirmatively that the facts are found beyond a reasonable doubt.

The juvenile's contention that his motion to suppress the evidence of the knife should have been allowed is without merit. We hold that the officer had probable cause to arrest without a warrant. G.S. 15A-401(b)(2)b 1. The search which produced the knife was incident to lawful arrest. State v. Jackson, 280 N.C. 122, 185 S.E.2d 202 (1971). The juvenile correctly concedes that the search was not too remote in either time or place.

For the failure of the record of the proceedings to show that the admission by the juvenile of the allegations of the petition was with awareness of its consequences and was understandingly and voluntarily made, there must be a new hearing.

Reversed and remanded.

BRITT and MORRIS, JJ., concur.