In re M.L.T.H.
| Decision Date | 03 November 2009 |
| Docket Number | No. OCA08-1569.,OCA08-1569. |
| Citation | 685 S.E.2d 117 |
| Parties | In The Matter of M.L.T.H. |
| Court | North Carolina Court of Appeals |
The juvenile M.L.T.H. ("Micah")1 appeals from a 3 April 2008 order denying his motion to suppress and the order adjudicating him as delinquent, entered on 5 May 2008. For the reasons stated below, we reverse the order denying Micah's motion to suppress, vacate the order adjudicating Micah as delinquent, and remand to the trial court for further proceedings.
Micah, age fifteen, lived at home with his mother, father, and four younger siblings. At the time of the events relevant to this appeal, Micah's older brother ("Bill")2 did not live with Micah and the rest of the family. Bill was 21 years old and served in the United States Marine Corps. Micah and his brothers sometimes visited Bill on weekends.
On 25 February 2008 Investigator M. Strickland of the Nash County Sheriff's Department received a referral from the Department of Social Services regarding an alleged incident involving sexual contact between Micah and his younger brother ("Jake").3 On that same date, Investigator Strickland called Micah's home, but his parents were not there. She talked to Bill instead. Investigator Strickland asked the entire family to come to the Sheriff's office, and they did so when the parents returned home. Immediately upon their arrival at the Sheriff's office, Investigator Strickland took all of the children upstairs to an interview room on the third floor and left the parents on the first floor of the Sheriff's department. She then began interviewing the children, starting with Jake, the alleged victim, and then Micah.
When Investigator Strickland brought Micah to the interview room, she first asked him if he wanted to speak with her alone or "did he want his parents or did he want his brother or did he want anybody basically[.]" Micah replied that he wanted Bill, his older brother. Before questioning Micah, Investigator Strickland read him his juvenile Miranda rights from the Nash County Sheriff's office Miranda Rights form. She wrote onto the form that Bill was present "per [Micah's] request."
Micah confessed to certain incidents involving Jake. As a result, Micah was charged in petitions filed on 27 February 2008 with three counts of felonious sex offense with a child, one count of attempted first degree sexual offense, and three counts of indecent liberties between children.
On 18 March 2008, Micah's counsel filed a motion to suppress the incriminating statements which Micah made to Investigator Strickland. By order entered on 3 April 2008, the trial court denied defendant's motion to suppress, without making any findings of fact or conclusions of law.
On 22 April 2008, Micah entered an admission to one count of felonious sex offense with a child, in violation of N.C. Gen.Stat. § 14-27.4(a)(1), preserving his right to appeal upon the order denying his motion to suppress. The other allegations were dismissed without prejudice. Based upon Micah's admission, the trial court entered an order on 5 May 2008 adjudicating Micah as delinquent and continued the case for disposition on 8 July 2008. Pending disposition, Micah was held in secure custody and ordered to complete the sex offenders' class. On 27 June 2008, Micah filed notice of appeal to the 3 April 2008 ruling upon his motion to suppress and the 5 May 2008 order which adjudicated Micah as a delinquent.
On 9 September 2008, the trial court entered a disposition order, ordering a level two disposition, wherein Micah was placed on 12 months of supervised probation, with various requirements, including electronic monitoring and intensive supervision. Micah has not appealed from the disposition order.
Micah states in his statement of grounds for appellate review that his appeal is pursuant to N.C. Gen.Stat. § 7B-2602 (2007) and N.C.R.App. P. Rule 3(b)(1), and the State does not question his right to appeal. However, it is the duty of this court to determine, as an initial matter, whether it has jurisdiction to consider an appeal. Unfortunately, this case presents several complex procedural issues which neither party addressed in the briefs.
The Juvenile Code provides that
review of any final order of the court in a juvenile matter under [Article 26] shall be before the Court of Appeals. Notice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order. However, if no disposition is made within 60 days after entry of the order, written notice of appeal may be given within 70 days after such entry. A final order shall include:
(1) Any order finding absence of jurisdiction;
(2) Any order which in effect determines the action and prevents a judgment from which appeal might be taken;
(3) Any order of disposition after an adjudication that a juvenile is delinquent or undisciplined; or
(4) Any order modifying custodial rights.
N.C. Gen.Stat. § 7B-2602 (2007).
Micah has not appealed from the disposition order, the only "final order" in this matter. He has appealed from the order denying his motion to suppress and from the adjudication order. The disposition order was not entered until 127 days after the adjudication order and 159 days after Micah filed notice of appeal. We must therefore consider (1) whether Micah's appeal was timely; (2) whether his appeal is interlocutory; and (3) if his appeal was not timely or was interlocutory, are there any grounds by which this Court may review his appeal.
A. Timeliness
This Court has no jurisdiction to hear an appeal if it is not timely. In re A.L., 166 N.C.App. 276, 277, 601 S.E.2d 538, 538 (2004) . Id. at 277, 601 S.E.2d at 538 (citing N.C. Gen.Stat. § 7B-2602 (2003)).
It is clear that notice of appeal was not given within 10 days after entry of either order from which Micah has appealed. However, the disposition order was not entered until 127 days after the adjudication order. Thus, this appeal falls within the provision of N.C. Gen.Stat. § 7B-2602 that "if no disposition is made within 60 days after entry of the order, written notice of appeal may be given within 70 days after such entry." Although no case has addressed this portion of the statute since its revision in 1998,4 this court did address the exact same provision in the prior statute, stating that, In re Taylor, 57 N.C.App. 213, 214, 290 S.E.2d 797, 797 (1982). In Taylor, the juvenile attempted to appeal the adjudication order eight days after its entry and no disposition had been made, so the appeal was dismissed. Id. at 213, 290 S.E.2d at 797. Therefore, the only reason that Micah might have a right to appeal his adjudication order, which is an interlocutory order, is that the disposition order was entered more than 60 days after the adjudication order.
As to the notice of appeal to the order denying suppression of Micah's statement, no notice of appeal was "given in open court at the time of the hearing." The hearing was held on 25 March 2008, and appeal was never mentioned in the transcript. Notice of appeal was not given "in writing within 10 days after entry of the order," as the order was entered on 3 April 2008 and the written notice was filed 27 June 2008. However, a disposition order was not entered within 60 days after the adjudication of delinquency, thus possibly extending the time Micah had to file a notice of appeal of the order denying suppression. The question becomes one of interpretation of the statute. It provides that
review of any final order of the court in a juvenile matter under [Article 26] shall be before the Court of Appeals. Notice of appeal shall be given in open court at the time of the hearing or in writing within 10 days after entry of the order. However, if no disposition is made within 60 days after entry of the order, written notice of appeal may be given within 70 days after such entry.
N.C. Gen.Stat. § 7B-2602. Setting aside, for now, the question of whether either the suppression order or the adjudication order can be a "final order," it appears that when the statute refers to "entry of the order," it is referring to the order which is being appealed. In Taylor, the subject of the appeal was the adjudication order only, and its date of entry was used as the relevant date from which to measure the appeal. Taylor, 57 N.C.App. at 213, 290 S.E.2d at 797. However, here we have two orders, so they must be considered separately. Reading the facts as to the suppression order into the statute, it reads "if no disposition is made within 60 days after entry of the [order denying the motion to suppress], written notice of appeal may be given within 70 days after [entry of the order denying the motion to suppress.]" See N.C. Gen.Stat. § 7B-2602. Therefore, the notice of appeal of the order denying the motion to suppress, which was filed 85 days after its entry, was not timely filed. This court...
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