Powell v. CRIMINAL JUSTICE AND TRAINING

600 S.E.2d 56, 165 N.C. App. 848, 2004 N.C. App. LEXIS 1525
CourtCourt of Appeals of North Carolina
DecidedAugust 17, 2004
DocketNo. COA03-1139.
StatusPublished
Cited by2 cases

This text of 600 S.E.2d 56 (Powell v. CRIMINAL JUSTICE AND TRAINING) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powell v. CRIMINAL JUSTICE AND TRAINING, 600 S.E.2d 56, 165 N.C. App. 848, 2004 N.C. App. LEXIS 1525 (N.C. Ct. App. 2004).

Opinion

CALABRIA, Judge.

The North Carolina Criminal Justice Education and Training Standards Commission ("respondent") appeals the trial court's order reversing and remanding with instructions to vacate respondent's final agency decision to revoke and suspend the law enforcement certification of Andrew Arnold Powell, Jr. ("petitioner"). We reverse the decision of the trial court and remand for further proceedings.

Petitioner was employed by the Madison Police Department as a law enforcement officer in February of 2000. As a pre-requisite to such work, petitioner sought and acquired law enforcement officers' certification on 15 October 1986. Besides his duties as a law enforcement officer, petitioner also owned two used car dealerships and a trailer park located in Virginia.

On or about 25 February 2000, Investigator Gerald Cheney ("Cheney") of the North Carolina Division of Motor Vehicles conducted a routine business inspection of one of petitioner's dealerships. Cheney's inspection consisted of recording the Vehicle Identification Number ("VIN") of selected vehicles and then validating the VIN's via the dealer's title documentation. One of the vehicles Cheney attempted to examine was a 1993 Toyota Camry bearing dealer tags, which petitioner frequently used as his personal automobile. After comparing the VIN on the door of the Camry to the Camry's confidential VIN, Cheney determined the two VIN's did not match. When Cheney requested documentation, petitioner was unable to produce any title or bill of sale for the Camry and opined such documentation might be at his other dealership. Cheney allowed petitioner to drive the Camry to an appointment but warned him not to allow anything to happen to the car. Cheney inspected twenty cars with appropriate supporting documentation for each car. When petitioner returned later that day to the dealership, he opted not to drive the Camry in favor of bringing "another car for Chaney to inspect." Cheney later determined the Camry's confidential VIN corresponded to a car previously reported stolen.

The following day, petitioner drove the Camry to the trailer park in Virginia after a tenant complained of a water leak. Petitioner had previously received notice of recurring drug activity at the trailer park. When petitioner left the Camry unattended to inspect the premises, it was stolen. Petitioner reported the theft to the authorities in Virginia; however, petitioner later authorized the investigation *58of the theft to be moved into an "inactive" category and did not file an insurance claim with respect to the stolen car. After the theft of the Camry, petitioner was unable to locate the documents regarding the title and/or bill of sale at the other dealership and subsequently maintained they must have been in the trunk of the stolen Camry.

In a letter dated 23 August 2001, respondent's director informed petitioner the Standards Committee found probable cause existed to believe petitioner's certification as a law enforcement officer should be (1) permanently revoked on the grounds that he committed the felony of "Receiving or Transferring Stolen Vehicles" and (2) suspended for not less than five years on the grounds that he committed the misdemeanor offense of obstruction of justice. The matter was heard before an administrative law judge ("ALJ") on 12 August 2002. Petitioner maintained, in pertinent part, that (1) no other car inspected had any problems, (2) there was no evidence petitioner changed the VIN or had reason to know the car was stolen, (3) petitioner was not informed until after the Camry was stolen from the trailer park that it had previously been reported stolen, and (4) he purchased the Camry at an auction and sometimes sellers pass stolen vehicles back into North Carolina from other states with a falsified title to sell at such auctions without the purchaser's knowledge. In the proposed decision, the ALJ concluded petitioner committed both offenses at issue, and petitioner's law enforcement certification should be suspended for not less than five years and permanently revoked. In the final agency decision, respondent adopted the ALJ's proposed decision. Relevant to this appeal, conclusion of law four provides:

[o]n or about February 26, 2000, Petitioner committed the felonious offense of "Receiving or Transferring Stolen Vehicles" when the Petitioner unlawfully, willfully and feloniously did possess a vehicle, to wit, a 1993 black Toyota Camry, having reason to believe said vehicle has been stolen or unlawfully taken in violation of N.C.G.S. § 20-106.

Petitioner sought judicial review.

The trial court's order, issued 26 June 2003, reversed and remanded the final agency decision for vacation. The trial court held conclusion of law four was patently erroneous because "there is no one felony offense of `Receiving or Transferring Stolen Vehicles.'" In addition, the trial court held conclusion of law four lacked required findings of fact to "support a conclusion of law that the petitioner either committed the felony offense of knowingly receiving a stolen vehicle with intent to procure title or the felony offense of knowingly transferring a stolen vehicle with intent to pass title." Finally, the trial court questioned the adequacy of respondent's pleadings in the 23 August 2003 letter since the pleadings failed to charge the offenses of receiving a stolen vehicle or transferring a stolen vehicle "with sufficient certainty to apprise petitioner of the specific accusation against him so as to enable him to prepare his defense." Respondent appeals.

"Judicial review of the final decision of an administrative agency in a contested case is governed by [N.C. Gen.Stat. §] 150B-51(b) of the APA." Watkins v. N.C. State Bd. of Dental Exam'rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004). "The proper standard for the superior court's judicial review `depends upon the particular issues presented on appeal.'" Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (citations and internal quotation marks omitted). Where "a petitioner contends the [b]oard's decision was based on an error of law, `de novo' review is proper. Id. (citations and internal quotation marks omitted)." "[T]he appellate court examines the trial court's order [regarding an agency decision] for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly." Id., at 14,

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Bluebook (online)
600 S.E.2d 56, 165 N.C. App. 848, 2004 N.C. App. LEXIS 1525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-criminal-justice-and-training-ncctapp-2004.