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In re D.S.B.

Court of Appeals of North Carolina

March 3, 2015

IN THE MATTER OF: D.S.B

Heard in the Court of Appeals December 4, 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State.

Mary McCullers Reece for the juvenile.

STEELMAN, Judge. Judges GEER and STEPHENS concur.

OPINION

Appeal by juvenile from order entered 3 March 2014 by Judge Toni S. King in Cumberland County District Court No. 11 JB 291.

STEELMAN, Judge.

Where the juvenile was adjudicated delinquent for commission of a class H felony, and received a Level II probationary disposition, the trial court had authority to impose a Level III disposition upon finding, after notice and a hearing, that the juvenile had violated the conditions of probation. Where the motion for review asserted that the juvenile had violated the conditions of probation, accurately stated the date the probation would expire, and listed violations occurring after the juvenile was placed on the probation with the specified expiration date, the motion for review adequately notified the juvenile of his probationary status, even though the motion for review contained a clerical error in that it referenced an earlier expired term of probation. Even assuming, arguendo, that, because the motion for review incorrectly referenced an expired term of probation based on commission of a misdemeanor, the motion for review did not provide the juvenile with notice that he could receive a Level III disposition for violation of his probation, the record establishes that the juvenile had actual notice that a Level III disposition was possible.

I. Factual and Procedural History

On 12 May 2011 a juvenile petition was filed against D.S.B., alleging that he had committed the offense of disorderly conduct, a Class 2 misdemeanor. On 8 August 2011 Judge John Dickson adjudicated D.S.B. delinquent for that offense, and on 1 September 2011 Judge Dickson entered a Level 1 disposition order, placing D.S.B. on probation for one year, subject to certain conditions. On 19 September 2011 a motion for review was filed, alleging that D.S.B. had violated the conditions of his probation by being suspended from school. D.S.B. admitted the violation at a hearing conducted on 18 October 2011, and on 8 November 2011 Judge Dickson entered a Level 2 disposition order placing D.S.B. on probation for a period of one year beginning 18 October 2011. On 24 July 2012, prior to the expiration of this probation, a motion for review was filed, alleging that D.S.B. had violated the conditions of probation. D.S.B. admitted the new violations at a hearing on 20 August 2012, and on 30 August 2012 Judge Dickson ordered D.S.B. " placed on a new Level II probation for one year" beginning on 20 August 2012.

On 22 February 2013 a juvenile petition was filed alleging that D.S.B. had possessed drug paraphernalia. A second petition was filed on 17 April 2013 alleging that D.S.B. had committed the offense of robbery with a dangerous weapon, and a third petition was filed 3 May 2013, alleging that D.S.B. had committed the offense of resisting, delaying, or obstructing a law enforcement officer. On 19 August 2013, prior to the resolution of these petitions, the probation imposed on 20 August 2012 expired. As a result, D.S.B. was not on probation between 20 August 2013 and 9 December 2013, the date that a hearing was conducted on the new petitions.

At the 9 December 2013 hearing, D.S.B. admitted the offense of larceny from the person, a class H felony. Pursuant to a plea agreement, in exchange for D.S.B.'s admission, the State reduced the charge of robbery with a dangerous weapon to larceny from the person, and dismissed the petitions alleging possession of drug paraphernalia and resisting an officer. Judge Edward A. Pone accepted the plea arrangement and adjudicated D.S.B. delinquent based on commission of larceny from the person. On 20 December 2013 Judge Pone entered a disposition order placing D.S.B. on Level 2 probation, beginning 9 December 2013. The disposition order found that D.S.B.'s delinquency level was medium, and that the offense for which he was adjudicated delinquent was serious. On 20 December 2013, Judge Pone entered an order addressing petitions for review filed on 11 December 2012 and 3 May 2013, alleging violations of D.S.B.'s expired term of probation. Judge Pone " ordered that there be no further court involvement" as to the motions for review of the expired probationary term.

On 31 January 2014 D.S.B.'s juvenile court counselor filed a motion for review of " [D.S.B.'s] progress on probation and to determine whether [D.S.B.] has violated the conditions of probation." The motion for review alleged that D.S.B. had violated the conditions of his probation by being suspended from school on 13 December 2013, failing to maintain a study log, testing positive for THC (the active ingredient in marijuana) on 18 December 2013, and sneaking out of his home without permission on 24 January 2014. The motion for review stated that the term of probation to which D.S.B. was then subject would expire on 8 December 2014. However, the motion for review erroneously referenced the term of probation running from 20 August 2011 to 20 August ...


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