Appeal by Respondent from order entered 23 February 2006 by
Judge Marcia H. Morey in District Court, Durham County. Heard in
the Court of Appeals 10 January 2007.
Attorney General Roy Cooper, by Assistant Attorney General P.
Bly Hall, for the State.
Peter Wood for Respondent-Appellant.
Respondent B.P. (the juvenile) was adjudicated a delinquent
juvenile on 26 July 2005 for having committed felony trafficking in
cocaine, an offense classified as serious under N.C. Gen. Stat. §
7B-2508(a)(2). The trial court entered a Level 2 disposition that
(1) placed the juvenile on electronic monitoring, (2) allowed the
juvenile to be confined on an intermittent basis at his court
counselor's discretion, and (3) required the juvenile to perform
fifty hours of community service. The trial court also placed the
juvenile on probation under certain conditions.
Kathryn Y. Moore (Ms. Moore), the juvenile's court counselor,
alleged probation violations in a motion for review filed 14
December 2005. Ms. Moore alleged the juvenile was in violation ofhis probation because he had been suspended from school, had not
cooperated with mental health screenings and recommendations, had
been arrested for possession with intent to sell marijuana, and had
been arrested again for "maintaining a [dwelling]/controlled
substance" and possession of drug paraphernalia. The juvenile
admitted the probation violations at a hearing on 26 January 2006.
The trial court placed the juvenile on electronic house arrest and
The trial court resumed the disposition hearing on 23 February
2006. Ms. Moore testified she had been unable to implement the
electronic house arrest. Ms. Moore also testified that she had
told the juvenile he needed to go back to school, but that the
juvenile had not returned to school. She also testified she had
been unable to find the juvenile at his home and that a secure
custody order had been issued for the juvenile on 10 February 2006.
Ms. Moore located the juvenile in jail on 15 February 2006, charged
with assault on a female. Ms. Moore requested that the juvenile
remain on Level 2 disposition for ninety days so that he could
transition into adult probation. Ms. Moore further requested that
the juvenile's probation be terminated at that time.
The trial court entered a Level 3 disposition and commitment
order on 23 February 2006. The trial court committed the juvenile
to the Department of Juvenile Justice and Delinquency Prevention
for placement in a youth development center for an indefinite
commitment. The trial court did not specify the maximum term of
the commitment. The order also contained a statement that thejuvenile "need[ed] drug counseling, anger management and mental
health service." The juvenile appeals.
The juvenile argues the trial court erred by failing to
specify the maximum term of commitment in the disposition and
commitment order. The juvenile argues that the omission was in
violation of N.C. Gen. Stat. § 7B-2513(a) (2005), which provides:
"At the time of commitment to a youth development center, the court
shall determine the maximum period of time the juvenile may remain
committed before a determination must be made by the Department
pursuant to G.S. 7B-2515 and shall notify the juvenile of that
determination." At the hearing, the trial court made the proper
oral finding that the juvenile's commitment would not exceed his
eighteenth birthday. However, the maximum term of commitment was
omitted from the written disposition and commitment order.
Therefore, we remand to the trial court with instructions to
correct this clerical error on the disposition and commitment
order. See In re J.L.B.M.
, ___ N.C. App. ___, ___, 627 S.E.2d 239,
248 (2006) (remanding the matter to the trial court with
instructions to correct a clerical error where the trial court
omitted the maximum term of commitment from the written commitment
The juvenile next argues the trial court erred and abused its
discretion when it committed him to the Department of Juvenile
Justice and Delinquency Prevention for placement in a youthdevelopment center. The juvenile also argues the trial court erred
by not terminating the juvenile's probation. Specifically, the
juvenile argues that the trial court's decision was not supported
by the evidence because, at the time of the disposition hearing,
the juvenile was living the life of an adult. The juvenile argues
that his juvenile probation should have been terminated, allowing
him to serve his adult probation. We disagree.
N.C. Gen. Stat. § 7B-2510(e) (2005) provides:
If 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, except
as provided in subsection (f) of this section,
order a new disposition at the next higher
level on the disposition chart in G.S.
N.C. Gen. Stat. § 7B-2510(f) (2005) provides that "[a] court shall
not order a Level 3 disposition for violation of the conditions of
probation by a juvenile adjudicated delinquent for an offense
classified as minor under G.S. 7B-2508." Our Court has recognized
that "choosing between two appropriate dispositional levels is
within the trial court's discretion. Absent an abuse of
discretion, we will not disturb the trial court's choice." In re
, 151 N.C. App. 733, 737, 567 S.E.2d 227, 229 (2002).
In the present case, the juvenile was adjudicated delinquent
for an offense classified as serious under N.C. Gen. Stat. § 7B-
2508(a)(2) (2005), and the juvenile was given a Level 2 disposition
and was placed on probation. The juvenile then admitted he
violated the terms of his probation and the trial court entered aLevel 3 disposition and commitment order. The trial court was
clearly authorized to order a Level 3 disposition because this was
the next higher level under N.C.G.S. § 7B-2508 and the offense for
which the juvenile had been adjudicated delinquent was a serious,
not a minor, offense. See
N.C.G.S. § 7B-2510(e)(f). Accordingly,
we find no abuse of discretion.
Affirmed in part and remanded in part.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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