An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-961 NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
IN THE MATTER OF:
J.T.M. Mecklenburg County No. 10 JB 694
Appeal by juvenile from order entered 28 March 2013 by
Judge Elizabeth T. Trosch in Mecklenburg County District Court.
Heard in the Court of Appeals 7 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Michael T. Wood, for the State.
Richard Croutharmel for appellant-juvenile.
HUNTER, Robert C., Judge.
Juvenile J.T.M. (“appellant”) appeals from an order entered
28 March 2013 (“the March 2013 order”) committing him to
placement in a youth development center for an indefinite period
not to exceed his 18th birthday. On appeal, appellant argues
that the March 2013 order should be vacated because the previous
order from which probation was imposed exceeded statutory
authority. After careful review, we dismiss the appeal as an -2- impermissible collateral attack on the trial court’s previous
order.
Background
Appellant was first adjudicated delinquent and placed on
twelve months of juvenile probation (“the first probation”) by
order entered 14 April 2011 after appellant admitted to
committing the offenses of common law robbery with a dangerous
weapon, resisting, delaying, and obstructing a police officer,
and simple possession of marijuana. On 2 February 2012,
appellant again appeared before the trial court, this time on
the State’s motion for review of a probation violation and
additional charges of misdemeanor larceny and resist, delaying,
and obstructing an officer. At this hearing, appellant admitted
to one count of misdemeanor larceny and one count of injury to
real property; the State voluntarily withdrew its motion for
review of a probation violation. Based on these admissions, the
trial court entered an order on 7 February 2012 (“the 2012
disposition order”), requiring that appellant’s probation be
extended twelve months from 14 April 2012, the day that the
first probationary period was set to expire, until 14 April 2013
(“the second probation”). -3- On 19 March 2013, appellant appeared again before the trial
court on the State’s motion for review of a violation of the
second probation. The trial court found appellant to be in
violation of the second probation by missing 22 days of school.
Based on this violation, the trial court committed appellant to
placement in a youth development center for an indefinite
commitment not to exceed his 18th birthday. Appellant filed
timely notice of appeal from the March 2013 order.
Discussion
I. Grounds for Appeal
Appellant’s sole argument on appeal is that the trial court
lacked statutory authority to extend the first probation an
additional twelve months without first conducting a hearing on a
motion for review of a probation violation. Thus, because the
March 2013 order was premised on violation of the allegedly
erroneous 2012 disposition order, the March 2013 order should be
vacated. We dismiss this argument as an impermissible
collateral attack on the 2012 disposition order.
A collateral attack is one in which a party is not entitled
to the relief requested “unless the judgment in another action
is adjudicated invalid.” Clayton v. N.C. State Bar, 168 N.C.
App. 717, 719, 608 S.E.2d 821, 822 (2005) (citation and -4- quotation marks omitted). “A collateral attack on a judicial
proceeding is an attempt to avoid, defeat, or evade it, or deny
its force and effect, in some incidental proceeding not provided
by law for the express purpose of attacking it.” Reg’l
Acceptance Corp. v. Old Republic Sur. Co., 156 N.C. App. 680,
682, 577 S.E.2d 391, 392 (2003) (citation and quotation marks
omitted). Collateral attacks generally are not permitted under
North Carolina law. Pinewood Homes, Inc. v. Harris, 184 N.C.
App. 597, 601, 646 S.E.2d 826, 830 (2007). “[I]n the criminal
context, our appellate courts have held that a defendant, who
was placed on probation, cannot in a probation revocation
hearing attack the sentence imposed in the original proceeding
when the defendant did not appeal that sentence.” In re Webber,
201 N.C. App. 212, 219, 689 S.E.2d 468, 474 (2009); see also
State v. Holmes, 361 N.C. 410, 413, 646 S.E.2d 353, 355 (2007)
(“Defendant did not appeal the 2004 judgments, and consequently
they became final. Defendant now attempts to attack the
sentences imposed and suspended in 2004 in his appeal from the
2005 judgments revoking his probation and activating his
sentences. We conclude, consistent with three decades of Court
of Appeals precedent, that this challenge is an impermissible
collateral attack on the original judgments.”). -5- Appellant concedes that he failed to appeal the 2012
disposition order imposing the second probation. However, he
contends that his appeal from the March 2013 order is a
permissible collateral attack because the 2012 disposition order
is void ab initio. We disagree.
An order is void ab initio only when it is issued by a court that does not have jurisdiction. Such an order is a nullity and may be attacked either directly or collaterally, or may simply be ignored.
In contrast, a voidable order stands until it is corrected. It may only be corrected by a direct attack; it may not be attacked collaterally. An irregular order, one issued contrary to the method of practice and procedure established by law, is voidable.
State v. Sams, 317 N.C. 230, 235, 345 S.E.2d 179, 182 (1986)
(citations omitted). “Where a court has authority to hear and
determine the questions in dispute and has control over the
parties to the controversy, a judgment issued by the court is
not void, even if contrary to law. Such a judgment is voidable,
but not void ab initio, and is binding until vacated or
corrected.” Hamilton v. Freeman, 147 N.C. App. 195, 204, 554
S.E.2d 856, 861 (2001) (emphasis added)(citation omitted).
Here, appellant alleges a statutory violation—specifically,
that “[the 2012 disposition order] was error because it was not
a dispositional alternative available to the trial court based -6- on J.T.M.’s adjudication of delinquency on the two Class 1
misdemeanor offenses.” Thus, appellant actually argues that the
2012 disposition order was voidable, not void ab initio, because
it was “contrary to law.” Hamilton, 147 N.C. App. at 204, 554
S.E.2d at 861. Nowhere in his brief or reply brief does
appellant challenge the trial court’s jurisdiction—a
prerequisite to a conclusion that the 2012 disposition order is
void ab initio. See Sams, 317 N.C. at 235, 345 S.E.2d at 182
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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. COA13-961 NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
IN THE MATTER OF:
J.T.M. Mecklenburg County No. 10 JB 694
Appeal by juvenile from order entered 28 March 2013 by
Judge Elizabeth T. Trosch in Mecklenburg County District Court.
Heard in the Court of Appeals 7 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Michael T. Wood, for the State.
Richard Croutharmel for appellant-juvenile.
HUNTER, Robert C., Judge.
Juvenile J.T.M. (“appellant”) appeals from an order entered
28 March 2013 (“the March 2013 order”) committing him to
placement in a youth development center for an indefinite period
not to exceed his 18th birthday. On appeal, appellant argues
that the March 2013 order should be vacated because the previous
order from which probation was imposed exceeded statutory
authority. After careful review, we dismiss the appeal as an -2- impermissible collateral attack on the trial court’s previous
order.
Background
Appellant was first adjudicated delinquent and placed on
twelve months of juvenile probation (“the first probation”) by
order entered 14 April 2011 after appellant admitted to
committing the offenses of common law robbery with a dangerous
weapon, resisting, delaying, and obstructing a police officer,
and simple possession of marijuana. On 2 February 2012,
appellant again appeared before the trial court, this time on
the State’s motion for review of a probation violation and
additional charges of misdemeanor larceny and resist, delaying,
and obstructing an officer. At this hearing, appellant admitted
to one count of misdemeanor larceny and one count of injury to
real property; the State voluntarily withdrew its motion for
review of a probation violation. Based on these admissions, the
trial court entered an order on 7 February 2012 (“the 2012
disposition order”), requiring that appellant’s probation be
extended twelve months from 14 April 2012, the day that the
first probationary period was set to expire, until 14 April 2013
(“the second probation”). -3- On 19 March 2013, appellant appeared again before the trial
court on the State’s motion for review of a violation of the
second probation. The trial court found appellant to be in
violation of the second probation by missing 22 days of school.
Based on this violation, the trial court committed appellant to
placement in a youth development center for an indefinite
commitment not to exceed his 18th birthday. Appellant filed
timely notice of appeal from the March 2013 order.
Discussion
I. Grounds for Appeal
Appellant’s sole argument on appeal is that the trial court
lacked statutory authority to extend the first probation an
additional twelve months without first conducting a hearing on a
motion for review of a probation violation. Thus, because the
March 2013 order was premised on violation of the allegedly
erroneous 2012 disposition order, the March 2013 order should be
vacated. We dismiss this argument as an impermissible
collateral attack on the 2012 disposition order.
A collateral attack is one in which a party is not entitled
to the relief requested “unless the judgment in another action
is adjudicated invalid.” Clayton v. N.C. State Bar, 168 N.C.
App. 717, 719, 608 S.E.2d 821, 822 (2005) (citation and -4- quotation marks omitted). “A collateral attack on a judicial
proceeding is an attempt to avoid, defeat, or evade it, or deny
its force and effect, in some incidental proceeding not provided
by law for the express purpose of attacking it.” Reg’l
Acceptance Corp. v. Old Republic Sur. Co., 156 N.C. App. 680,
682, 577 S.E.2d 391, 392 (2003) (citation and quotation marks
omitted). Collateral attacks generally are not permitted under
North Carolina law. Pinewood Homes, Inc. v. Harris, 184 N.C.
App. 597, 601, 646 S.E.2d 826, 830 (2007). “[I]n the criminal
context, our appellate courts have held that a defendant, who
was placed on probation, cannot in a probation revocation
hearing attack the sentence imposed in the original proceeding
when the defendant did not appeal that sentence.” In re Webber,
201 N.C. App. 212, 219, 689 S.E.2d 468, 474 (2009); see also
State v. Holmes, 361 N.C. 410, 413, 646 S.E.2d 353, 355 (2007)
(“Defendant did not appeal the 2004 judgments, and consequently
they became final. Defendant now attempts to attack the
sentences imposed and suspended in 2004 in his appeal from the
2005 judgments revoking his probation and activating his
sentences. We conclude, consistent with three decades of Court
of Appeals precedent, that this challenge is an impermissible
collateral attack on the original judgments.”). -5- Appellant concedes that he failed to appeal the 2012
disposition order imposing the second probation. However, he
contends that his appeal from the March 2013 order is a
permissible collateral attack because the 2012 disposition order
is void ab initio. We disagree.
An order is void ab initio only when it is issued by a court that does not have jurisdiction. Such an order is a nullity and may be attacked either directly or collaterally, or may simply be ignored.
In contrast, a voidable order stands until it is corrected. It may only be corrected by a direct attack; it may not be attacked collaterally. An irregular order, one issued contrary to the method of practice and procedure established by law, is voidable.
State v. Sams, 317 N.C. 230, 235, 345 S.E.2d 179, 182 (1986)
(citations omitted). “Where a court has authority to hear and
determine the questions in dispute and has control over the
parties to the controversy, a judgment issued by the court is
not void, even if contrary to law. Such a judgment is voidable,
but not void ab initio, and is binding until vacated or
corrected.” Hamilton v. Freeman, 147 N.C. App. 195, 204, 554
S.E.2d 856, 861 (2001) (emphasis added)(citation omitted).
Here, appellant alleges a statutory violation—specifically,
that “[the 2012 disposition order] was error because it was not
a dispositional alternative available to the trial court based -6- on J.T.M.’s adjudication of delinquency on the two Class 1
misdemeanor offenses.” Thus, appellant actually argues that the
2012 disposition order was voidable, not void ab initio, because
it was “contrary to law.” Hamilton, 147 N.C. App. at 204, 554
S.E.2d at 861. Nowhere in his brief or reply brief does
appellant challenge the trial court’s jurisdiction—a
prerequisite to a conclusion that the 2012 disposition order is
void ab initio. See Sams, 317 N.C. at 235, 345 S.E.2d at 182
(“An order is void ab initio only when it is issued by a court
that does not have jurisdiction.”); see also In re S.E.P., 184
N.C. App. 481, 487, 646 S.E.2d 617, 622 (2007) (holding that
because a juvenile petition was not verified, the trial court
did not obtain subject matter jurisdiction, and its orders were
void ab initio).
Thus, because appellant’s argument amounts only to an
allegation that the 2012 dispositional order was voidable, and
voidable orders may only be attacked directly, his appeal from
the March 2013 order is an impermissible collateral attack which
we must dismiss.
Conclusion
Because appellant’s appeal is an impermissible collateral
attack on the 2012 dispositional order, we dismiss. -7-
DISMISSED.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).