IN RE: Robeson County
No. 05 J 172
B.K.C.
Attorney General Roy Cooper, by Assistant Attorney General
Jennifer M. Jones, for the State.
Sofie W. Hosford, for defendant-appellant.
CALABRIA, Judge.
B.K.C. (“the juvenile”) seeks review of his adjudication of
felonious breaking and entering and felonious larceny. We affirm
in part and vacate and remand in part.
The State presented evidence at the adjudication and
disposition hearing showing that on 20 May 2006, the juvenile
served as a lookout while his companions broke into a residence and
took a DVD player, walkie talkie, cash, and guns. They also poured
gasoline on the carpet. The juvenile's court counselor, Lance
Britt (“Britt”), testified that at the time of the hearing, the
juvenile was fourteen years old and living at home with his mother.
The juvenile's father is deceased. Britt noted that the juvenile
was making his third appearance in Juvenile Court. Britt asked thecourt to impose probation for a period up to twelve months and
confinement on an intermittent basis in an approved detention
facility for a period up to fourteen days. Britt also asked the
court to impose restitution in the amount of $2,770.00. On cross
examination, Britt acknowledged that the petition alleged the
amount of restitution owed was $2,100.00 and that the victim impact
statement alleged that restitution in the amount of $3,407.00 was
owed.
The juvenile did not present any evidence.
In announcing the sentence, the court imposed probation and a
14-day suspended sentence, and
ordered the juvenile to pay
restitution in the amount of $2,670, jointly and severally with two
other juveniles and an adult defendant.
The court further declared
You must pay restitution. Restitution will
consist of the rifles that were _ gun that
were removed, the DVD player, the damage to
the home which includes the carpet and the
window, not the cash that was taken. This
liability will be joint and severed [sic] with
other co-defendants.
The juvenile's counsel then asked the court to set an amount. The
court responded: “I have no idea what the amount is but whatever it
is minus the cash. That would be the amount.” The prosecutor then
interjected, “That would be two thousand six hundred and seventy
dollars ($2,670).” The court signed the disposition order in which
it ordered the juvenile to pay restitution, jointly and severally
with the other perpetrators, in the amount of $2,670.00 to the
homeowner within twelve months. The juvenile's counsel gave notice
of appeal in open court “as to the restitution amount.” The juvenile contends that the portion of the disposition
order requiring the payment of restitution should be vacated
because the court failed to hear evidence or consider whether this
condition was fair, reasonable, or in the juvenile's best interest.
As a condition of probation, the trial court may require that
a delinquent juvenile pay restitution, full or partial, to any
person who has suffered loss or damage as a result of the offense
committed. N.C. Gen. Stat. § 7B-2506 (22) (2005). Although this
Court has stated it does “endorse the discriminate and prudent use
of restitution in juvenile cases[,]” we have cautioned that
“compensation of victims should never become the only or paramount
concern in the administration of juvenile justice.” In re
Register, 84 N.C. App. 336, 339, 352 S.E.2d 889, 891 (1987). We
require that when a court does order the payment of restitution,
the order “must be supported by the record, which demonstrates that
the condition is fair and reasonable, related to the needs of the
child, and calculated to promote the best interest of the juvenile
in conformity with the avowed policy of the State in its relation
with juveniles.” In re Schrimpsher, 143 N.C. App. 461, 464, 546
S.E.2d 407, 410 (2001). The juvenile court must consider and make
findings as to whether restitution is in the juvenile's best
interest and whether the juvenile has or could reasonably acquire
the means to pay restitution. In re Heil, 145 N.C. App. 24, 32,
550 S.E.2d 815, 821 (2001).
Absent from the record in the case at bar are such findings.
The State concedes that the trial court erred and asks this Courtto remand the matter to the trial court for findings as to the
juvenile's ability to pay restitution, as to whether payment of
restitution is in the juvenile's best interests, and as to how the
court arrived at the amount of restitution. We concur with the
State and we remand to the trial court for these findings.
The disposition order is affirmed except with respect to the
portion ordering the payment of restitution. The portion ordering
the payment of restitution is vacated and the matter remanded for
further findings consistent with this opinion.
Affirmed in part; vacated and remanded in part.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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