Appeal by juvenile from order entered 1 June 2004 by Judge
Elaine M. O'Neal in Durham County District Court. Heard in the
Court of Appeals 7 December 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gail E. Dawson, for the State.
Appellate Defender Staples Hughes for defendant-appellant.
T.B., a juvenile, appeals from a final disposition order
committing him to the Department of Juvenile Justice for an
indefinite term. We conclude that, under the circumstances of this
case, the trial court was not statutorily authorized to order a
disposition of commitment based on T.B.'s probation violations.
Accordingly, we reverse and remand for further proceedings.
T.B. was first adjudicated delinquent on 13 June 2003 based
upon his admission of allegations of misdemeanor possession of
stolen goods and assault inflicting serious injury. The trialcourt gave T.B. a Level 1 disposition of one-year supervised
probation. Among other conditions, T.B.'s probation required T.B.
to "obey [his] parents at all times," "attend school regularly and
maintain good behavior while there," "report to [his] court
counselor," and "cooperate with therapy."
On 28 April 2004, the trial court held a hearing on a motion
for review filed by the State, alleging that T.B. had violated his
probation by not following the rules both at school and at home.
T.B. admitted the allegations, and the court found him in violation
of his probation. In an order filed 6 May 2004, the court elevated
T.B.'s disposition to a Level 2 and extended his probation for one
year from 28 April 2004. Among the conditions added to his
probation were: (1) T.B. was "placed on a stayed commitment to
training school"; (2) the court provided for 28 24-hour periods of
secure custody to be used at the court counselor's discretion; (3)
T.B. was to remain on intensive probation until released by the
court counselor; and (4) T.B. was to have no unexcused absences, no
tardies, and no school suspensions. The court also scheduled
another hearing for 1 June 2004, at which the court counselor would
submit a status report as to T.B.'s progress. In the 28 April 2004
hearing, the court warned T.B. that if he failed to comply with the
terms of his probation, "we got a cell for you with your name on
At the 1 June 2004 hearing, T.B.'s case manager read a summary
of T.B.'s behavior into evidence, which stated that "[T.B.] is
currently out of control. [He] continues to break house rules bymissing curfew, using alcohol and drugs and affiliate [sic] with
gang members." The case manager also testified that "[T.B.] has
become more rebellious against his father and mother." T.B.'s
court counselor testified in a similar fashion and enumerated
several of the ways in which T.B. was not complying with the 28
April 2004 order. The court entered an order on 1 June 2004
providing, without further findings of fact: "Based on the (MFR)
violation the juvenile was found to be in violation. He was
admitted to Department of Juvenile Justice. Level 3 commitment
disposition (per Judge O'Neal)." This "finding" appears to refer
to the "MFR" (or motion for review) that was adjudicated in April
2004 and the probation violations found at that time. The court
thereafter ordered an indefinite term of commitment. T.B. timely
T.B. argues on appeal that the trial court was without
authority to enter a Level 3 juvenile disposition of commitment to
a youth development center. "[C]hoosing between . . . appropriate
dispositional levels is within the trial court's discretion." In
, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002).
Accordingly, when a district court selects a disposition that is
authorized by statute, this Court will not overturn its choice
unless it "'is so arbitrary that it could not have been the result
of a reasoned decision.'" Id.
(quoting Chicora County Club, Inc.
v. Town of Erwin
, 128 N.C. App. 101, 109, 493 S.E.2d 797, 802
(1997), disc. review denied
, 347 N.C. 670, 500 S.E.2d 84 (1998)). We agree with T.B.'s contention that the disposition imposed by the
trial court in this case was not authorized by statute.
Following T.B.'s original delinquency adjudication, the trial
court was authorized by N.C. Gen. Stat. § 7B-2508 (2005) to impose
either a Level 1 or a Level 2 disposition based on his delinquency
history level ("low") and the class of his offense ("serious").
The court chose to impose a Level 1 disposition with one year of
When the trial court concluded on 28 April 2004 that T.B. had
violated his probation, it was then governed by N.C. Gen. Stat. §
7B-2510 (2005). Under that statute, "[i]f the court, after notice
and a hearing, finds by the greater weight of the evidence that the
juvenile has violated the conditions of probation set by the court,
the court may continue the original conditions of probation, modify
the conditions of probation, or . . . order a new disposition at
the next higher level
." N.C. Gen. Stat. § 7B-2510(e) (emphasis
added). Accordingly, the trial court was statutorily authorized to
order a new disposition at Level 2, the next higher level, in the
6 May 2004 order. Of the additional conditions imposed in the 6
May 2004 order, T.B. argues only that the trial court's provision
for "a stayed commitment to training school" was not authorized as
a Level 2 disposition.
At the 28 April 2004 hearing, before ordering the stayed
commitment, the trial court asked: "How many points has [T.B.] got
at this point, including his probation, where we're at now?" The
State's attorney told the court that she thought T.B. had fourpoints, to which the court responded: "All right. He's got enough
for training school at this point. We got enough for a stayed
commitment. I gotcha where I want you now." Later, the trial
court stated: "So I know you're getting a stayed commitment today.
You got enough points." The trial court apparently misapprehended
the role of "points."
(See footnote 1)
Under the Juvenile Code, "points" are used to determine a
juvenile's delinquency history level. See
N.C. Gen. Stat. § 7B-
2507 (2005) ("The delinquency history level for a delinquent
juvenile is determined by calculating the sum of the points
assigned to each of the juvenile's prior adjudications and to the
juvenile's probation status . . . ."). This history level is then
used as part of the calculation for determining the juvenile's
disposition level after an adjudication of delinquency; the trial
court must also consider the seriousness of the present offenses in
order to arrive at the available dispositional alternatives. N.C.
Gen. Stat. § 7B-2508(f).
The pertinent question with respect to the probation violation
was not how many "points" T.B. had, but rather what dispositional
alternatives were statutorily authorized for a Level 2 disposition.
A trial court ordering a Level 2 disposition "may provide for . .
. any of the dispositional alternatives contained in subdivisions
(1) through (23) of G.S. 7B-2506 . . . ." N.C. Gen. Stat. § 7B-
2508(d). The State contends that N.C. Gen. Stat. § 7B-2506(19)(2005) authorized the stayed commitment. That subsection does
permit a trial court to "[s]uspend imposition of a more severe,
statutorily permissible disposition with the provision that the
juvenile meet certain conditions agreed to by the juvenile and
specified in the dispositional order." The State does not,
however, address the requirement that the more severe disposition
be "statutorily permissible."
Our case law and the pertinent statutes establish that
commitment is not a statutorily permissible disposition at Level 2.
Commitment is addressed by N.C. Gen. Stat. § 7B-2506(24) and,
therefore, is not one of the statutorily permitted Level 2
dispositions authorized by N.C. Gen. Stat. § 7B-2508(d) (noting
Level 2 dispositions are set forth in N.C. Gen. Stat. § 7B-2506(1)
through (23)). This Court has, consistent with the statutory
provisions, observed: "A Level 2 dispositional limit _ or
intermediate disposition _ does not provide for commitment of the
juvenile to training school as one of the 'intermediate'
dispositional alternatives." In re Allison
, 143 N.C. App. 586,
597, 547 S.E.2d 169, 176 (2001). See also Robinson
, 151 N.C. App.
at 737, 567 S.E.2d at 229 ("Level 2 is an intermediate disposition,
primarily community based, while Level 3 carries a commitment to
the Department."); N.C. Gen. Stat. § 7B-2508(e) (providing that
commitment is a Level 3 disposition).
(See footnote 2)
Since commitment is not apermissible Level 2 disposition, the trial court could not, under
N.C. Gen. Stat. § 7B-2506(19), impose a stayed commitment in its 6
May 2004 order.
Further, the validity of the indefinite commitment ordered on
1 June 2004 hinges on whether the 6 May 2004 stayed commitment was
proper. The 1 June 2004 order, as well as the transcript of the 1
June 2004 hearing, indicate that the order of indefinite commitment
resulted from the trial court vacating its earlier stay of the
commitment imposed in the 6 May order. Indeed, in its 1 June 2004
order, the trial court did not make any findings of further
probation violations or enter any other findings to support a Level
3 disposition of commitment. See
N.C. Gen. Stat. § 7B-2512 (2005)
(requiring that the dispositional order contain appropriate
findings of fact to support its conclusions of law). Instead, the
court stated only that it was ordering commitment based on the
probation violations admitted in response to the motion for review
adjudicated in April 2004.
Because commitment is not an "allowable [Level 2]
disposition," N.C. Gen. Stat. § 7B-2506(19), the trial court was
not authorized to impose commitment, stayed or otherwise, in the 6
May 2004 order. Since the 6 May 2004 probation violation order was
the sole basis specified for the 1 June 2004 indefinite commitment,
we must reverse and remand for imposition of a statutorily
authorized Level 2 disposition.
Reversed and remanded.
Judges HUNTER and McCULLOUGH concur.