In re J.L.

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-539
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. -2- 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. -3- 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. -4- 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 -5- 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 -6- 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. -7- 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 -8- 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. -9- 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 -10- “[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.” -11- 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 -12- 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 -13- 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 -15- 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).