In re D.L.H.

• Decision Date: 21 July 2009
• Docket Number: No. COA08-1019.,COA08-1019.
• Citation: 679 S.E.2d 449
• Parties: In the Matter of D.L.H.
• Court: North Carolina Court of Appeals

679 S.E.2d 449

In the Matter of D.L.H.

No. COA08-1019.

Court of Appeals of North Carolina.

July 21, 2009.

Appeal by juvenile from orders entered 13 December 2007, 14 January 2008, 29 January 2008, and 25 February 2008 by Judges Sherry F. Alloway, Polly D. Sizemore, and Lawrence C. McSwain in Guilford County District Court. Heard in the Court of Appeals 12 February 2009.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Janette Soles Nelson, for the State.

Leslie C. Rawls, Charlotte, for juvenile-appellant.

STEELMAN, Judge.

Where juvenile was confined to a detention facility pursuant to N.C. Gen.Stat. § 7B-2506(20) on a Level 2 disposition, juvenile was entitled to receive credit for time served prior to the dispositional hearing. Where the trial court had previously found juvenile to be delinquent and juvenile subsequently admitted to probation violations, the trial court properly ordered juvenile into secure custody pending her dispositional hearing pursuant to N.C. Gen.Stat. § 7B-1903(c). Upon being confined to secure custody, juvenile was entitled to a hearing to determine if continued custody was necessary pursuant to N.C. Gen.Stat. § 7B-1906(b). The trial court had authority to impose confinement for up to twice the period authorized by statute for a Level 2 disposition and extend juvenile's probation for one year pursuant to N.C. Gen. Stat. §§ 7B-2508, -2510(c) and (e).

I. Factual and Procedural Background

On 28 June 2007, a juvenile petition was filed, which alleged that D.L.H. ("juvenile") had engaged in an affray in violation of N.C. Gen.Stat. § 14-33 on 21 May 2007. On 6 July 2007, juvenile admitted to the affray and was adjudicated delinquent by Judge McSwain in Guilford County District Court. Disposition was continued until 2 August 2007. Juvenile was to remain in the Guilford County Juvenile Detention Center pending disposition. On 21 August 2007, Judge Burch entered a disposition order arising out of the 2 August 2007 hearing. Juvenile was placed on "Level 2 probation" until 31 January 2008 under a number of terms and conditions. In addition, she was sentenced to fourteen days in the Guilford County Juvenile Detention Center. This sentence was stayed upon the condition that juvenile cooperate and complete the terms of her probation. Juvenile was released from the Guilford County Juvenile Detention Center to her mother's custody.

On 9 November 2007, a motion for review was filed alleging that juvenile had been suspended from school for fighting. A second motion alleged that juvenile violated the terms of her probation by repeated absences from school. On 3 December 2007, a hearing was held on these motions before Judge Alloway. The State dismissed the first motion, and juvenile admitted the allegations in the second motion. She was ordered to serve the fourteen days in the Guilford County Juvenile Detention Center, which had been stayed by Judge Burch's order of 21 August 2007. Disposition was continued until 3 January 2008. This order was filed on 13 December 2007. On 3 January 2008, a hearing was held before Judge McSwain. He held that juvenile was delinquent and would benefit from probation. Disposition was continued to 31 January 2008. Pending disposition, juvenile was placed in the Guilford County Juvenile Detention Center. This order was filed on 14 January 2008.

On 10 January 2008, juvenile filed a motion seeking her release from custody. The motion asserted that Judge McSwain was without authority to order juvenile to be held in the Guilford County Juvenile Detention Center pending disposition. In the alternative, juvenile sought a secure custody hearing pursuant to N.C. Gen.Stat. § 7B-1906. On 29 January 2008, Judge Sizemore entered a written order stating that she was without authority to modify previous orders and continuing the motion for hearing by Judge McSwain. On 31 January 2008, juvenile appeared before Judge McSwain. A Level 2 disposition order was entered on 25 February 2008. Juvenile's probation was extended for twelve months through 31 January 2009. A fourteen-day sentence at the Guilford County Juvenile Detention Center was stayed upon compliance with special and general conditions of probation. The matter was set for further review on 28 February 2008.

On 26 February 2008, juvenile appealed the order entered on 13 December 2007 by Judge Alloway; the order entered on 14 January 2008 by Judge McSwain; the order entered on 29 January 2008 by Judge Sizemore; and the order entered on 25 February 2008 by Judge McSwain.

II. Mootness

As an initial matter, we must determine whether juvenile's assignments of error are moot and should be dismissed. Our Supreme Court has stated, "[w]henever, during the course of litigation it develops . . . that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law." In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978) (citations omitted), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979). However, there are long-standing exceptions to dismissals based upon the doctrine of mootness, including cases which are "capable of repetition, yet evading review[.]" Boney Publishers, Inc. v. Burlington City Council, 151 N.C.App. 651, 654, 566 S.E.2d 701, 703 (quotation omitted), disc. review denied, 356 N.C. 297, 571 S.E.2d 221 (2002). For this particular exception to apply, two elements are required: "(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again." Id. at 654, 566 S.E.2d at 703-04 (quotation and alterations omitted).

In the instant case, juvenile's notice of appeal is dated 26 February 2008. Her appeal was calendared for hearing before this Court on 12 February 2009, approximately one year later. Juvenile concedes in her brief that this Court cannot give juvenile "back the days she was wrongfully confined" and we further note that the extension of juvenile's probation until 31 January 2009 has expired at this time. Therefore, our holding in this case would be moot as to juvenile. However, since the issues in this case concern the scope of statutory authority of the district court, we address the merits of juvenile's appeal as the matters in controversy are likely to recur. See In re Doe, 329 N.C. 743, 748-49 n. 7, 407 S.E.2d 798, 801 n. 7 (1991).

III. Credit for Time Served

In her first argument, juvenile contends that the trial court erred by failing to give her credit for the time she served in secure custody prior to her dispositional hearing. We agree.

Juvenile argues that when she received the fourteen-day sentence in August 2007, she received no credit for the twenty-seven days that she spent in detention awaiting the dispositional hearing. When the fourteen-day sentence was activated in December 2007, she received no credit for time already served. In January 2008, she was held in detention pending a dispositional hearing for twenty-eight additional days. Defendant argues that she served sixty-nine days on a fourteen-day sentence, and that under the provisions of N.C. Gen.Stat. §§ 7B-2508 and -2510, the maximum sentence she could have received for a Level 2 disposition was fourteen days.

In support of her contention, juvenile cites N.C. Gen.Stat. § 15-196.1, which provides:

The minimum and maximum term of a sentence shall be credited with and diminished by the total amount of time a defendant has spent, committed to or in confinement in any State or local correctional, mental or other institution as a result of the charge that culminated in the sentence. The credit provided shall be calculated from the date custody under the charge commenced and shall include credit for all time spent in custody pending trial, trial de novo, appeal, retrial, or pending parole, probation, or post-release supervision revocation hearing: Provided, however, the credit available herein shall not include any time that is credited on the term of a previously imposed sentence to which a defendant is subject.

N.C. Gen.Stat. § 15-196.1 (2007). We note that there is not a similar statute found within the Juvenile Code. However, the application of this statute in the context of juvenile proceedings was addressed in the case of In re Allison, 143 N.C.App. 586, 547 S.E.2d 169 (2001) and in the unpublished decision of In re R.T.L., 183 N.C.App. 299, 644 S.E.2d 269 (2007) (unpublished).

In In re Allison, the juvenile was committed to a residential training school facility for an indefinite term, not to exceed 450 days. She was subsequently released from the training school without having served the entire term, but with conditions. She immediately violated those conditions and the trial court placed her in detention pending the procurement of a placement in an inpatient treatment facility. Ultimately, such a placement could not be procured, and the juvenile was recommitted to the Division of Youth Services "to finish the commitment term of an indefinite term not to exceed 450 days. . . ." In re Allison, 143 N.C.App. at 590, 547 S.E.2d at 172. In the meantime, the juvenile had committed additional delinquent acts, for which the trial court committed her to training school for a minimum of six months. Id. at 588-90, 547 S.E.2d at 170-72.

On appeal, the juvenile first argued that she had received punishments greater than an adult would have received for a similar offense. This argument was rejected by this Court, holding "there exists a rational basis for the legislature's disparate treatment of adults and children, and that G.S. § 7B-2513(a) was not unconstitutionally applied to [the juvenile] . . . in derogation of her equal protection rights." Id. at 596, 547 S.E.2d at 175 (...