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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-733


Filed: 6 February 2007


    L.S.                            Durham County
                                No. 02 J 93

    Appeal by respondent from order entered 10 February 2006 by Judge James T. Hill in Durham County District Court. Heard in the Court of Appeals 22 January 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Tracy Curtner, for the State.

    Susan J. Hall for respondent-appellant.

    MARTIN, Chief Judge.

    Juvenile L.S. appeals his Level 3 disposition and commitment order. For the following reasons, we affirm the trial court's order.
    L.S. was adjudicated delinquent on 12 September 2005, upon a finding that he committed felony breaking and entering and felony larceny as alleged in petitions filed 20 July 2005. The trial court placed L.S. on Level 2 probation for twelve months. On 18 January 2006, court counselor Kathryn Moore (“Moore”) filed a “Motion for Review” alleging that L.S. had violated his probation by: (1) not attending school regularly; (2) failing four of his six classes; (3) not keeping appointments with the Majors Program; (4) not performing any community service; (5) not paying restitution; (6) not keeping two scheduled office visits; (7) having contact with juvenile R.C.; and (8) testing positive for marijuana.
    At the review hearing, court counselor Moore testified that records from Neal Middle School showed L.S. had missed 27 days of school, had 5 tardies and was failing four out of six of his classes. Moore further testified that L.S. had missed two scheduled visits with her and that L.S. had tested positive for marijuana on 10 January 2006. Moore also testified that L.S.'s grandmother informed her that R.C., another juvenile involved in L.S.'s gang, had been to the grandmother's house to see L.S. and that L.S. was in regular contact with R.C. by telephone and by letter. MAJORS Program counselor Lillian Robinson testified that L.S. had failed to show up for his two scheduled appointments. Vaughn Cole, the community service coordinator for the Durham County Teen Court Restitution program, testified that he attempted to contact the juvenile by phone and letter, but had never heard back from him.
    The trial court found that L.S. had wilfully violated his probation and then heard evidence regarding disposition. Moore recommended training school, “based on his general non-compliance from September 12th, when he was placed on probation, to today's date. . . . Everything that I've tried to put in place, everything that the Court has imposed on him, he's done nothing.” She further testified that she did not think a mentoring program would help L.S. because he and his family would not cooperate with theprogram. L.S.'s attorney argued that training school was not the best alternative for L.S. Based on the testimony and a predisposition report, the trial court ordered a Level 3 disposition that L.S. be placed in a youth development center for a minimum period of six months and for a total period of commitment that is indefinite. L.S. appeals.
    In his sole argument on appeal, L.S. contends that the trial court erred in ordering him to a youth development center when community based alternatives were not exhausted. L.S. cites In re Mosser, 99 N.C. App. 523, 527-28, 393 S.E.2d 308, 311 (1990), in support of his contention. In re Mosser, however, was decided under the former section 7A-646 which has since been amended. Juvenile dispositions in delinquency proceedings are now controlled by N.C. Gen. Stat. § 7B-2500 et seq., which no longer requires the trial court to select the least restrictive disposition under the circumstances. See In re Robinson, 151 N.C. App. 733, 736-37, 567 S.E.2d 227, 229 (2002). Under the new Code, the trial court is required to “select the most appropriate disposition both in terms of kind and duration for the delinquent juvenile.” N.C. Gen. Stat. § 7B-2501(c) (2006). Further, the trial court must choose a disposition within the guidelines set forth in N.C. Gen. Stat. § 7B-2508 that will protect the public and meet the needs and best interests of the juvenile. Id. Finally, a trial court's choice must be 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) (2006).
    Here, L.S.'s original classification of punishment for the underlying criminal offenses were deemed serious, and his disposition level was a Level 2, Medium, pursuant to the guidelines
set forth in N.C. Gen. Stat. § 7B-2508(f). Based upon his current disposition Level 2, if the court determined that L.S. had violated the terms of his probation, it had the authority to “continue the original conditions of probation, modify the conditions of probation, or . . . order a new disposition at the next higher level on the disposition chart in G.S. 7B-2508.” N.C. Gen. Stat. §7B-2510(e) (2006). The trial court chose to impose the next disposition level of Level 3, Serious, which allowed for commitment of the juvenile to training school for an indefinite term of at least six months. N.C. Gen. Stat. § 7B-2510(e), -2513. “[C]hoosing between two appropriate dispositional levels is within the trial court's discretion,” and we will not disturb a trial court's discretionary choice unless it is “'so arbitrary that it could not have been the result of a reasoned decision.'” In re Robinson, 151 N.C. App. at 737, 567 S.E.2d at 229 (citations omitted).    We conclude that the evidence shows that the trial court's decision to impose a level 3 disposition was the result of a reasoned decision. In the present case, L.S. associated with others who were involved in delinquent or criminal activity. The assessment showed that L.S.'s needs level was medium because, inter alia, he was functioning below grade level, refused substance abuse treatment, and needed mental health treatment. L.S. has not shown that, in light of this evidence, the trial court's decision to commit him to youth training school amounted to an abuse of discretion. Accordingly, the trial court properly imposed a level 3 disposition.
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).

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