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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF W. H.
Filed: 19 October 2004
1. Appeal and Error_time for filing appeal_legal holiday
The State's motion to dismiss an appeal from a juvenile disposition as untimely was
correctly denied where the last day for filing the appeal was the Friday after Thanksgiving, a
legal holiday, and the appeal was filed on the following Monday.
2. Juveniles_Transcript of Admission_equivalent to guilty plea_not knowing and
A juvenile disposition was reversed and remanded where the court ordered a higher level
of disposition than indicated on the Transcript of Admission. The acceptance of an admission by
a juvenile is tantamount to the acceptance of a guilty plea by an adult. The trial court here did
not sufficiently inform the juvenile of the most restrictive disposition that he could receive and
his admission was not knowing and voluntary.
3. Juveniles_erroneous disposition level_completed disposition_remanded for
correction of record
A juvenile case erroneously imposing a higher disposition level than warranted by the
Transcript of Admission was remanded for correction of the record where the juvenile had
completed the disposition.
4. Juveniles_release pending appeal_sufficiency of conclusions
Whether a juvenile should have been released pending appeal was moot where he had
served his disposition and was discharged. However, the court's conclusions concerning the
brutality of the incident, the juvenile's lack of cooperation with placement, and his unwillingness
to work with family members were compelling reasons to order that the juvenile remain in
5. Juveniles_disposition level_severity of victim's injuries
A more severe juvenile disposition based on a misunderstanding of the victim's injury
was moot where the disposition was reversed on other grounds.
Appeal by juvenile from order entered 21 November 2002 by
Judge Lawrence J. McSwain in Guilford County Superior Court. Heard
in the Court of Appeals 9 June 2004.
Richard E. Jester for the juvenile appellant.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
This juvenile appeal arises from the following facts and
circumstances: The juvenile admitted to misdemeanor assault
inflicting serious injury on another student at his school. The
offense occurred on 3 October 2002, while the juvenile was in his
homeroom. The juvenile became angry with the student, the victim,
who was looking at him. The juvenile began to threaten the victim
and got in his face, saying, See, I won't slam you. When the
victim did not respond, the juvenile picked him up and body slammed
him on the floor. The victim sustained injuries of bruised or
fractured ribs, and a fractured elbow. The court entered a finding
that the juvenile did, in fact, commit the act as alleged in the
At the same hearing, the juvenile admitted to a violation of
a probation order that was based on previous minor offenses. The
juvenile had violated the conditions of his probation by returning
home after his curfew, and not cooperating with his group home
The juvenile signed a Transcript of Admission (TOA) which
stated that the most restrictive disposition on the misdemeanor
assault charge was a Level 2 disposition, which could include,
among other things, detention for up to fourteen (14) 24-hour
periods, an order that you cooperate with placement in a wilderness
program or a residential treatment facility, or house arrest. The
TOA did not contain an admission to the probation violation. TheCourt, and the attorneys representing the State and the juvenile
signed the TOA.
Based on both the probation violation and the adjudication of
delinquency, the Court ordered the juvenile a Level 3 disposition,
ordering the juvenile be placed in a juvenile development academy
or a youth training center.
The juvenile raises three issues in this appeal: (I) the trial
court erred in ordering the juvenile to a Level 3 disposition when
the TOA stated his most restrictive disposition would be a Level 2;
(II) the trial court failed to release the juvenile from custody
pending his appeal, or failed to state any compelling reasons for
keeping the juvenile in custody pending his appeal as is required
by N.C. Gen. Stat. § 7B-2605 (2003); and (III) the trial court
erred in ordering a Level 3 disposition based in large part on the
fact the juvenile fractured the victim's ribs, though the evidence
showed only that the victim's ribs were bruised.
 Before turning to these issues, we first address the
State's motion to dismiss this case for lack of jurisdiction based
on the running of the statute of limitations. N.C. Gen. Stat. §
7B-2602 (2003) provides for the following:
[For] review of any final order...[n]otice of
appeal shall be given in open court at the
time of the hearing or in writing within 10
days after the entry of the order.
In this case, the record shows the written dispositional order was
entered on 21 November 2002, and the appeal filed 2 December 2002.
Therefore, for the appeal to have been timely, it would have had tobe filed by November 29. However, because this date fell on the
Friday of a legal holiday (Thanksgiving), the next timely filing
date was the following Monday, 2 December 2002. See N.C.R. App. P.
27(a) (2003). Therefore, the State's motion is denied and we now
turn to the issues in this appeal.
I. Transcript of Admission
 The juvenile asserts that the trial court erred in
ordering a Level 3 disposition, when the juvenile's TOA indicated
that the most restrictive disposition he was to be given on his
charge was a Level 2. The State asserts that, during the hearing
upon which the Level 3 disposition was based, the trial court
informed the juvenile that the extent of its power, in light of the
juvenile's prior record level, was to order the juvenile to
training school, a Level 3 disposition. We agree with the
We have long considered that the acceptance of an admission by
a juvenile is tantamount to the acceptance of a guilty plea by an
adult in a criminal case. In re Johnson
, 32 N.C. App. 492, 493, 232
S.E.2d 486, 487-88 (1977). Thus, we have held that: an 'admission'
in a juvenile hearing is equivalent to a guilty plea in a criminal
case, and that the record must therefore affirmatively show on its
face that the admission was entered knowingly and voluntarily. In
, 31 N.C. App. 579, 581, 230 S.E.2d 198, 200 (1976), cert.
, 291 N.C. 711, 232 S.E.2d 203 (1977). The fundamental basis
for this is that [t]he privilege [against self-incrimination]
applies in juvenile proceedings the same as in adult criminalcases. In re Burrus
, 275 N.C. 517, 530, 169 S.E.2d 879, 887
, 403 U.S. 528, 29 L. Ed. 2d 647 (1971).
To ensure the knowing and voluntary nature of a juvenile's
admission, the trial court must comply with the procedures set
forth in N.C. Gen. Stat. § 7B-2407 (2003). Under this statute, the
court must determine that the admission is a product of informed
choice made without improper pressure and that a factual basis for
the admission exists. N.C. Gen. Stat. § 7B-2407(b) and (c).
Moreover, a court may accept a juvenile's admission only after
first addressing the juvenile personally and informing the juvenile
on a number of different factors related to the charge, one of
(6) Informing the juvenile of the most
restrictive disposition on the charge.
N.C. Gen. Stat. § 7B-2407(a)(6). If the face of the record does not
affirmatively show the trial court's compliance with N.C. Gen.
Stat. § 7B-2407 and the knowing and voluntary nature of the
juvenile's admission, the adjudication of delinquency will be set
aside. In re Kenyon N.
, 110 N.C. App. 294, 296-97, 429 S.E.2d 447,
In the case at bar, the TOA clearly indicated to all parties
that the knowing and voluntary admission by the juvenile was based
on the understanding that the most restrictive disposition he would
receive was a Level 2. During the hearing, in attempting to comply
with N.C. Gen. Stat. § 7B-2407(a)(6), the trial court had the
following exchange with the juvenile: Q: ... And did your lawyer tell you that the
greatest power that I have in this
courtroom is to be able to send people to
A: Yes, sir.
Q: Now, I'm not saying that's what I'm going
to do in your case. I don't know yet.
It will depend on what all I hear, but I
must let you know at least what my
ultimate power is[.]
In light of the TOA, we believe the court did not sufficiently
inform the juvenile of the most restrictive disposition that he
himself could receive on the charge against him. The trial court
did not mention that training school is a Level 3 disposition, and
his mention of training school referred to sending people to
training school based on certain charges, not this particular
juvenile based on his charge. The court reflected its general
power, not the extent of the court's power in this particular case.
Therefore, we cannot say that the juvenile's admission was
knowing and voluntary. His admission was based on a belief that the
most restrictive disposition he could receive was a Level 2, and
the court, without sufficient notice to him or any accompanying
chance to withdraw the admission, raised the most restrictive
disposition he could receive to a Level 3.
As we have already held that a TOA is the equivalent to a plea
agreement acting as a waiver of a juvenile's constitutional right
against self-incrimination, we look to our laws related to criminal
pleas for guidance on the proper resolution of this issue. N.C.
Gen. Stat. § 15A-1024 (2003) provides that: If at the time of sentencing, the judge
for any reason determines to impose a sentence
other than provided for in a plea arrangement
between the parties, the judge must inform the
defendant of that fact and inform the
defendant that he may withdraw his plea. Upon
withdrawal, the defendant is entitled to a
continuance until the next session of court.
This law is clearly designed to ensure that a defendant's plea is
knowing and voluntary, thus safeguarding the right against self-
incrimination. Therefore, we hold that when a trial court plans to
impose a disposition level higher than that set out in the TOA, the
juvenile must be given a chance to withdraw his plea and be granted
 In State v. Puckett
, 299 N.C. 727, 264 S.E.2d 96 (1980),
where N.C. Gen. Stat. § 15A-1024 was not complied with, our Supreme
Court reversed and remanded the case such that the trial court's
judgments were vacated, defendant's pleas of guilty were stricken,
and the case was to be reinstated on the trial docket. In the case
at bar, the juvenile has already completed the Level 3 disposition.
Therefore we believe the most just resolution in light of these
circumstances is to reverse the trial court's Level 3 disposition,
and remand the case ordering clerical changes be made giving the
juvenile the benefit of a record showing him as having had a Level
2 disposition from the underlying offense of this case.
(See footnote 1)
On this issue, we reverse and remand.
II. Custody Pending Appeal
 Next, the juvenile contends the trial court erred in not
ordering the juvenile be released pending appeal, or for not
stating compelling reasons, in writing, to support an order that
the juvenile remain in custody pending appeal in accord with N.C.
Gen. Stat. § 7B-2605 (2003). We believe this issue is now moot in
light of the fact that the juvenile has already served his Level 3
disposition and was discharged April of 2003. We note that the
conclusions of law in this case specify the brutality of the
incident at bar, and that the juvenile deliberately chose to
resist and not cooperate with out of home placement[,] [and] [t]hat
he is not willing to work with family members who are willing to
offer their services to assist and help him. We believe these
would otherwise suffice as compelling reasons under N.C. Gen.
Stat. § 7B-2605 had the trial court properly ordered the juvenile
to remain in custody pending appeal.
III. Serious Injury
 Lastly, the juvenile contends that the trial court erred
in ordering the juvenile to a Level 3 disposition, as this more
severe disposition was based on an understanding by the court that
the victim's ribs were fractured by the juvenile's assault. The
juvenile argues that the evidence shows only that the victim's ribs
were bruised. As we have reversed and remanded this case to correct
the juvenile's disposition level to be a Level 2 in accordance with
his TOA, this issue is also moot. Reversed and remanded.
Judges McGEE and ELMORE concur.
We note that admission of the probation violation was not
part of the TOA and could, in other circumstances, have been used
to impose a Level 3 disposition despite the TOA. However, in this
case defendant's probation was based only on prior minor offenses
and therefore could not be used to elevate his commitment to a
Level 3. See
N.C. Gen. Stat. § 7B-2510(f) (2003).
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