Becker v. N.C. Criminal Justice Educ. & Training Standards Comm'n
| Decision Date | 31 December 2014 |
| Docket Number | No. COA14–568.,COA14–568. |
| Citation | 768 S.E.2d 200 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | William James BECKER, Petitioner, v. N.C. CRIMINAL JUSTICE EDUCATION AND TRAINING STANDARDS COMMISSION, Respondent. |
David C. Sutton, for petitioner-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Lauren Tally Earnhardt, for respondent-appellee.
Petitioner William James Becker appeals from the trial court's order upholding the decision of respondent, the North Carolina Criminal Justice Education and Training Standards Commission (“the Commission”), to suspend petitioner's correctional officer certification for three years. Because the record contains substantial evidence to support the Commission's finding that petitioner committed two misdemeanor offenses of assault on a female, we affirm.
Facts
All correctional officers who work for the North Carolina Department of Corrections (“DOC”) are required to be certified by the Commission in accordance with the rules set forth in the North Carolina Administrative Code. 12 N.C. Admin. Code 9G.0301 (2014). Petitioner began working as a certified correctional officer for the DOC in 1994. On 30 April 2001, petitioner was arrested and charged with assault on a female after a domestic dispute with his wife, Tammy Becker. Mrs. Becker was also charged with simple assault as a result of the dispute. On 1 May 2001, petitioner notified his supervisor of his arrest. The charges were dropped on 22 October 2001, and no disciplinary action was taken by petitioner's employer.
On 15 August 2009, petitioner was arrested after another domestic dispute with Mrs. Becker at their home. Petitioner was charged with felony assault by strangulation and misdemeanor assault on a female. The charges were dismissed on 26 March 2010 because Mrs. Becker refused to testify.
On 20 July 2011, the Commission notified petitioner that a hearing was scheduled on 25 August 2011 before the Probable Cause Committee to determine whether there was probable cause to revoke or suspend petitioner's certification based on (1) petitioner's commission of felony assault by strangulation in 2009, (2) petitioner's commission of misdemeanor assault on a female in 2001 and in 2009, and (3) petitioner's failure to properly notify the Criminal Justice Standards Division of the 2001 assault on a female charge. Plaintiff appeared pro se at the probable cause hearing, and Mrs. Becker did not testify. On 12 September 2011, the Probable Cause Committee determined that there was probable cause to suspend petitioner's certification pursuant to 12 N.C. Admin. Code 9G.0504(b)(3) for his commission of two misdemeanor offenses of assault on a female in 2001 and 2009. The Committee determined that there was no probable cause to suspend petitioner's certification for the commission of felony assault by strangulation or for petitioner's failure to provide notification of the 2001 arrest.
Petitioner requested an administrative hearing, and, in accordance with N.C. Gen.Stat. § 150B–40(e), an Administrative Law Judge (“ALJ”) was designated to preside at a contested case hearing of the matter on 22 March 2012. On 16 August 2012, the ALJ filed her Proposal for Decision which concluded that substantial evidence existed to suspend petitioner's certification for two commissions of assault on a female. The ALJ recommended that the Commission suspend petitioner's certification for no less than three years, but additionally recommended that “given the circumstances of the subject assaults, and Petitioner's employment history, [the Commission] suspend that suspension, and place Petitioner on probation for a term certain.”
On 16 November 2012, the Commission entered its Final Agency Decision. It adopted the findings and conclusions of law of the ALJ, and ordered that the Commission suspend petitioner's correctional officer certification for three years based upon petitioner's commission of two class B misdemeanors. Petitioner sought judicial review and the matter came on for hearing in Edgecombe County Superior Court on 28 October 2013. In an order entered 2 December 2013, the trial court affirmed the Final Agency Decision. Petitioner timely appealed the order to this Court.
Standard of Review
“ ‘Where there is an appeal to this Court from a trial court's order affirming an agency's final decision, we must (1) determine the appropriate standard of review and, when applicable, (2) determine whether the trial court properly applied this standard.’ “ Krueger v. N.C. Criminal Justice Educ. & Training Standards Comm'n,198 N.C.App. 569, 575, 680 S.E.2d 216, 220 (2009) (quoting Blalock v. N.C. Dep't of Health & Human Servs.,143 N.C.App. 470, 473, 546 S.E.2d 177, 180 (2001) ).
The trial court's review of a final agency decision is governed by N.C. Gen.Stat. § 150B–51(b) (2013), which provides that the reviewing court may affirm the decision of the agency or remand the case for further proceedings.
It may also reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of the agency or administrative law judge;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible under G.S. 150B–29(a), 150B–30, or 150B–31 in view of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
Alleged errors of law are reviewed de novo, whereas issues whether the agency decision was supported by the evidence or was arbitrary and capricious are reviewed using the whole record standard of review. N.C. Gen.Stat. § 150B–51(c).
Under the de novostandard of review, the trial court consider[s] the matter anew[ ] and freely substitutes its own judgment for the agency's. When the trial court applies the whole record test, however, it may not substitute its judgment for the agency's as between two conflicting views, even though it could reasonably have reached a different result had it reviewed the matter de novo.Rather, a court must examine all the record evidence—that which detracts from the agency's findings and conclusions as well as that which tends to support them—to determine whether there is substantial evidence to justify the agency's decision. Substantial evidence is relevant evidence a reasonable mind might accept as adequate to support a conclusion.
N.C. Dep't of Env't & Natural Res. v. Carroll,358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004) (internal citations and quotation marks omitted).
Discussion
Initially we note that the majority of petitioner's arguments on appeal are not supported by citations to any relevant authority. Petitioner cites only one case in his entire brief, and it is a juvenile delinquency proceeding with no relevance to the issues in this appeal. As the Rules of Appellate Procedure require that a party's brief “contain citations of the authorities upon which the appellant relies[,]” we decline to address petitioner's arguments for which no authority is cited. N.C.R.App. P. 28(b)(6). Our Supreme Court has emphasized that “[i]t is not the role of the appellate courts ... to create an appeal for an appellant.” Viar v. N.C. Dep't of Transp.,359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). For this Court to review petitioner's issues, we would have to do the research and analysis that he did not bother to undertake—in other words, we would have to create an appeal for him. See also Goodson v. P.H. Glatfelter Co.,171 N.C.App. 596, 606, 615 S.E.2d 350, 358 (2005) (). We decline to do so.
The issue on appeal is whether the Commission erred in suspending petitioner's correctional officer certification. The Commission acted pursuant to 12 N.C. Admin. Code 9G.0504(b)(3) (2014), which provides that “[t]he Commission may, based on the evidence for each case, suspend, revoke, or deny the certification of a corrections officer when the Commission finds that the applicant for certification or the certified officer ... has committed or been convicted of a misdemeanor as defined in 12 NCAC 9G.0102 after certification[.]” 12 N.C. Admin Code 9G.0102(9) (2014) defines “[m]isdemeanor” as “those criminal offenses not classified under the laws, statutes, or ordinances as felonies” and includes assault on a female in violation of N.C. Gen.Stat. § 14–33(c) (2013). See12 N.C. Admin Code 9G.0102(9)(g) ().
Petitioner first points out that the criminal charges against him for assault on a female were dismissed and asserts that a person “has committed” a misdemeanor offense within the meaning of 12 N.C. Admin. Code 9G.0504(b)(3) only if he “has been convicted of” the offense. However, the Code defines “[c]onviction” and “[c]ommission of an offense” separately. “Conviction” is defined as “the entry of: (a) a plea of guilty; (b) a verdict or finding of guilt by a jury, judge, magistrate, or other duly constituted, established adjudicating body, tribunal, or official, either civilian or military; or (c) a plea of no contest, nolo contendere, or the equivalent.” 12 N.C. Admin Code 9G.0102(2). In contrast, the code defines the “[c]ommission of an offense” as “a finding by [the Commission] or an administrative body that a person performed the acts necessary to satisfy the elements of a specified offense.” 12 N.C. Admin Code 9G.0102(1).
Thus, the Commission may revoke a correctional officer's certification if it finds that the officer committed a misdemeanor, regardless whether he was criminally convicted of that charge. See Mullins v. N.C. Criminal Justice Educ. & Training Standards Comm'n,125 N.C.App. 339, 348, 481 S.E.2d 297, 302 (1997) (...
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