IN THE MATTER OF:
EDWARD ALLEN ZEHNER,
a minor child.
Cleveland County
No. 00 J 086
Attorney General Roy Cooper, by Assistant Attorney General
Hilda Burnett-Baker, for the State.
George B. Thomasson, P.A., by David Mark Hullender, for
juvenile-appellant.
HUDSON, Judge.
Edward Allen Zehner (the “juvenile”) appeals from a
dispositional order committing him to the Office of Juvenile
Justice (the “OJJ”) for placement in a training school for an
indefinite term of at least six months, but not to exceed his
eighteenth birthday. He also appeals the order imposed orally at
the dispositional hearing requiring him to register pursuant to
N.C. Gen. Stat. § 7B-2509 (1999). We find no error and affirm.
On 4 April 2000, a Juvenile Petition was filed, in which it
was alleged that the juvenile was delinquent on the basis of his
commission of a violation of N.C. Gen. Stat. § 14-27.2 (1999)
(“First-degree rape”), a class B1 felony. Specifically, it wasalleged that sometime during August 1999, while the juvenile was
under the age of eighteen, he “did unlawfully, willfully and
feloniously ravish and carnally know ... a child under the age of
thirteen years.” On 2 May 2000, the juvenile admitted to the
charges and was adjudicated delinquent.
The OJJ issued its Predisposition Report on 2 May 2000. In
that report, the OJJ indicated that the juvenile's Delinquency
History Level was “low” and his offense classification was
“violent.” Thus, the authorized disposition was Level 2 or 3. See
N.C. Gen. Stat. § 7B-2508(f) (Supp. 2000). The OJJ concurred in
the recommendation of the District Attorney's Office that a Level
3 Disposition (commitment) be imposed.
The juvenile was referred to Pathways for a Sex Offender
Specific Evaluation. The juvenile was fully cooperative. Pathways
issued its report on 5 June 2000. The counselor observed that the
juvenile “needs close adult supervision as well as age-appropriate
sex education.” The counselor expressed concern about whether the
juvenile's mother was capable of providing such supervision, and
recommended a referral to
complete a sex offenders specific treatment in
a group setting as well as individual and
family intervention . . . . Another
possibility is a sex offender specific
treatment in a group home setting with staff
able to confront him regularly for his
thinking errors, empathy issues, and his risks
for reoffending. This option would also
remove him from the very risky situation of
living next to his victim and living with his
enabling mother.
The dispositional hearing was held on 25 July 2000. Afterhearing argument, the court adjourned until the following day, in
order to further review the matter. On 26 July 2000, the court
entered an order committing the juvenile to the OJJ for an
indefinite term of at least six months, but not to exceed the
juvenile's eighteenth birthday. The court further made a finding
that the juvenile was a danger to the community and, pursuant to
N.C.G.S. § 7B-2509, the court required the juvenile to register.
In his first two assignments of error, the juvenile argues
that the court failed to make findings of fact sufficient to
justify imposition of a Level 3 Disposition, and that the court
abused its discretion in imposing a Level 3 Disposition rather than
a Level 2 Disposition. The statute governing dispositional orders
provides as follows:
The dispositional order shall be in
writing and shall contain appropriate findings
of fact and conclusions of law. The court
shall state with particularity, both orally
and in the written order of disposition, the
precise terms of the disposition including the
kind, duration, and the person who is
responsible for carrying out the disposition
and the person or agency in whom custody is
vested.
N.C. Gen. Stat. § 7B-2512 (1999). Regarding the determination of
an appropriate disposition, the legislature has directed as
follows:
In choosing among statutorily permissible
dispositions, the court shall select the most
appropriate disposition both in terms of kind
and duration for the delinquent juvenile.
Within the guidelines set forth in G.S.
7B-2508, the court shall select a disposition
that is designed to protect the public and to
meet the needs and best interests of the
juvenile, based upon: (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.
N.C. Gen. Stat. § 7B-2501(c) (1999). The legislature has also
provided that “[t]he purpose of dispositions in juvenile actions is
to design an appropriate plan to meet the needs of the juvenile and
to achieve the objectives of the State in exercising jurisdiction,
including the protection of the public.” N.C. Gen. Stat. § 7B-2500
(1999). To this end,
The court should develop a disposition in each
case that:
(1) Promotes public safety;
(2) Emphasizes accountability and
responsibility of both the parent,
guardian, or custodian and the juvenile
for the juvenile's conduct; and
(3) Provides the appropriate
consequences, treatment, training, and
rehabilitation to assist the juvenile
toward becoming a nonoffending,
responsible, and productive member of the
community.
Id.
Here, the court stated in its written order that
The court finds the seriousness of this
offense, the reported and apparent needs of
the juvenile, the proximity of and apparent
access to the victim, the best interest of
public safety emphasizing the accountability
and responsibility of the juvenile and his
parents and to provide appropriate
consequences and treatment would indicate that
the juvenile should be committed to the
department of juvenile justice for anindefinite term of not less than six months.
The juvenile contends that, except for the reference to the
juvenile's proximity to the victim, the court merely mimicked the
language in N.C.G.S. § 7B-2500 and N.C.G.S. § 7B-2501(c), without
making any findings particular to this juvenile. Additionally, the
juvenile complains that the court failed to indicate the weight it
gave to the statutory factors, and argues that the court should
have given more weight to facts favoring a Level 2 Disposition.
The statutes do not require the court to make written findings
detailing its decision-making process. The court had before it a
Predisposition Report, see N.C. Gen. Stat. § 7B-2413 (1999), which
included a risk and needs assessment. Additionally, a Sex Offender
Specific Evaluation was prepared by Pathways and was before the
court. The Predisposition Report recommended that the juvenile be
committed to the OJJ. The transcript from the dispositional
hearing and the order indicate that the court reviewed the
information before it and considered the appropriate statutory
factors. The order “state[s] with particularity . . . the precise
terms of the disposition including the kind, duration, and the
person who is responsible for carrying out the disposition and the
person or agency in whom custody is vested.” N.C.G.S. § 7B-2512.
Therefore, we hold that the court complied with the requirements of
the Juvenile Code.
Although the juvenile argues that the court should have given
more weight to the facts that are favorable to him, he fails to
identify any abuse of discretion on the part of the court. Hence,we conclude there was no abuse of discretion.
The juvenile also contends that the court erred in failing to
make findings as to the inappropriate nature of alternatives to
commitment. The juvenile quotes In re Groves, 93 N.C. App. 34, 376
S.E.2d 481 (1989), where this Court held that “the judge had an
affirmative obligation to inquire into and to seriously consider
the merits of alternative dispositions, and . . . his failure to do
so was error.” 93 N.C. App. at 39, 376 S.E.2d at 484; see also In
re Khork, 71 N.C. App. 151, 155-56, 321 S.E.2d 487, 490 (1984).
However, the Juvenile Code has been amended since Groves was
decided. See Act of October 22, 1998, 1997 N.C. Sess. Laws 695.
At the time Groves was decided, the General Assembly had directed
that
In choosing among statutorily permissible
dispositions for a delinquent juvenile, the
judge shall select the least restrictive
disposition both in terms of kind and
duration, that is appropriate to the
seriousness of the offense, the degree of
culpability indicated by the circumstances of
the particular case and the age and prior
record of the juvenile. A juvenile should not
be committed to training school or to any
other institution if he can be helped through
community-level resources.
N.C. Gen. Stat. § 7A-646 (1986). With the amendment and
recodification of the Juvenile Code, the General Assembly replaced
the requirement that the judge “select the least restrictive
disposition” by the requirement that the judge “select the most
appropriate disposition,” one that “is designed to protect the
public and to meet the needs and best interests of the juvenile,”
based on a set of enumerated factors. N.C.G.S. § 7B-2501(c). We conclude that the court complied with the statutory
requirements, and we find no abuse of discretion. Accordingly,
these assignments of error are overruled.
In his third and final assignment of error, the juvenile
argues that the trial court erred in requiring him to register
pursuant to N.C.G.S. § 7B-2509. According to N.C.G.S. § 7B-2509:
In any case in which a juvenile, who was
at least 11 years of age at the time of the
offense, is adjudicated delinquent for
committing a violation of G.S. 14-27.2 (first-
degree rape) . . ., the judge, upon a finding
that the juvenile is a danger to the
community, may order that the juvenile
register in accordance with Part 4 of Article
27A of Chapter 14 of the General Statutes.
The juvenile argues first that the General Assembly did not
intend for N.C.G.S. § 7B-2509 to apply to first-degree statutory
rape, the offense to which the juvenile pled guilty. The rape
statute, which is entitled “First-degree rape,” provides in
relevant part:
A person is guilty of rape in the first degree
if the person engages in vaginal intercourse:
(1) With a victim who is a child under
the age of 13 years and the defendant is
at least 12 years old and is at least
four years older than the victim; or
(2) With another person by force and
against the will of the other person,
and:
a. Employs or displays a dangerous
or deadly weapon or an article which
the other person reasonably believes
to be a dangerous or deadly weapon;
or
b. Inflicts serious personal injury
upon the victim or another person;
or
c. The person commits the offense
aided and abetted by one or more
other persons.
N.C.G.S. § 14-27.2(a). The juvenile argues that the General
Assembly intended for the registration requirement of N.C.G.S.
§ 7B-2509 to apply only to delinquent juveniles who have violated
N.C.G.S. § 14-27.2(a)(2), and not to those who have violated
N.C.G.S. § 14-27.2(a)(1). However, it is plain that both offenses
have been included within “rape in the first degree.” If the
General Assembly had intended that only juveniles who had committed
the offense proscribed by N.C.G.S. § 14-27.2(a)(2) be required by
N.C.G.S. § 7B-2509 to register, then it could have so limited the
provision in N.C.G.S. § 7B-2509. It did not, and we decline to
presume such an intent.
Additionally, the juvenile argues that the judge did not make
the requisite finding under N.C.G.S. § 7B-2509 that the juvenile is
a danger to the community. Contrary to the juvenile's contention,
the statute does not require that the judge make written findings,
and thus, the fact that the court's order does not refer to the
statute or contain a finding that the juvenile is a danger to the
community is not error. At the hearing, the judge stated “[t]he
Court will further make a finding that the juvenile should register
through the registration system, and . . . that the juvenile is a
danger or could be a danger to the community.” Because the court
complied with the statute, this assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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