Opinion
COA23-615
02-06-2024
IN THE MATTER OF: S.C.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Vanessa N. Totten, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for juvenile-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 10 January 2024.
Appeal by juvenile from orders entered 31 January 2023 by Judge Eric Chasse in Wake County District Court No. 22 JB 550.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Vanessa N. Totten, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for juvenile-appellant.
MURPHY, JUDGE.
N.C. G.S. § 14-33(c) prohibits punishment for both assault on a school employee and assault inflicting serious bodily injury for the same underlying conduct. Here, where the trial court adjudicated the juvenile delinquent for both offenses, it reversibly erred. We therefore vacate the orders of the trial court and remand for a new sentencing hearing.
BACKGROUND
This case arises out of an altercation that took place between the juvenile, Rachel, and another female student at Rachel's middle school. On 22 March 2022, the two students began fighting in the hallway while the school's assistant principal was standing between them-an exchange which, by the assistant principal's account, was initiated by Rachel. During the conflict, the assistant principal suffered a concussion and was knocked unconscious-allegedly by a punch from Rachel-and began to speak with a stutter and experience high levels of anxiety in the wake of her injury. The school resource officer would later testify that he had to physically remove Rachel from the assistant principal and the other student and pin her to a nearby wall to deescalate the conflict.
We use pseudonyms for all relevant persons throughout this opinion to protect the juveniles' identities and for ease of reading.
The State filed petitions on 28 April 2022 alleging Rachel was delinquent for committing the offenses of assault inflicting serious bodily injury, assault on a school employee, resisting a public officer, and simple affray, and a hearing was held on 14 December 2022. At the close of all evidence, including the testimonies of the assistant principal and school resource officer, Rachel moved to dismiss all allegations for insufficiency of the evidence. The trial court denied the motion and, ultimately, found Rachel was responsible for all four allegations.
Rachel filed a Notice of Appeal on 22 December 2022; however, the trial court did not enter its disposition order until 31 January 2023. As this timing discrepancy has created a question as to our appellate jurisdiction, Rachel filed a Petition for Writ of Certiorari on 24 August 2023.
ANALYSIS
On appeal, Rachel argues that the trial court erred in denying her motion to dismiss and that the trial court acted contrary to a statutory mandate when it adjudicated her delinquent for both assault on a school employee and assault inflicting serious bodily injury. Furthermore, as the premature notice of appeal has created a question as to our appellate jurisdiction, Rachel has separately argued that we have appellate jurisdiction and, in the alternative, filed a Petition for Writ of Certiorari on 24 August 2023 seeking our discretionary review of her substantive claims.
A. Appellate Jurisdiction
At the threshold, we must address whether we have appellate jurisdiction. The entirety of the dispute as to appellate jurisdiction concerns In re: E.A., a case in which we held appeal noticed prior to the entry of a written order in a juvenile delinquency case is premature for purposes of appellate jurisdiction:
Evan filed written notice of appeal on 10 October 2018. Typed into the trial court's order at the bottom of the page is the date "10/9/2018." However, the order is additionally-and quite noticeably-stamped with "2018 OCT 12 A 11:07," indicating that the order was filed after Evan filed his notice of appeal on 10 October.
Before a party may file notice of appeal, there must first be an entry of judgment. See [ N.C. G.S.] § 1A-1, Rule 58 (2017) ("[A] judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of
court pursuant to Rule 5."). "When a defendant has not properly given notice of appeal, this Court is without jurisdiction to hear the appeal." See State v. Webber, 190 N.C.App. 649, 651 . . . (2008) (quotation marks omitted). Consequently, Evan would need to request-and we would need to issue-a writ of certiorari to have his case reviewed. See N.C. R. App. P. 21(a).In re: E.A., 267 N.C.App. 396, 397 (2019). Rachel makes several arguments against the applicability of E.A. in this case, most of which concern alleged errors of statutory construction made in the course of E.A.'s interpretation of Rule 58. However, even if we were persuaded by these arguments, E.A. would remain a binding authority. See In re: Civil Penalty, 324 N.C. 373, 384 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.").
The only argument in Rachel's petition bearing on the authoritativeness of E.A. is that E.A. conflicts with a superior binding authority-namely, State v. Oates, 366 N.C. 264 (2012). In Oates, the trial court granted the defendant's motion to suppress and announced its ruling from the bench at the close of a suppression hearing on 14 December 2009. State v. Oates, 215 N.C.App. 491, 492 (2011). The State filed a written notice of appeal on 22 December 2009; and, subsequently, on 22 March 2010, the trial court filed a written order granting the motion to suppress. Id. Reasoning that the term "entry" in North Carolina Rule of Appellate Procedure 4(a)'s requirement that written notice of appeal be filed "within fourteen days after entry of the [judgment or] order" referred to the reduction of the order to writing, we dismissed the State's appeal because the State failed to timely provide oral notice of appeal. Id. at 494. However, our Supreme Court reversed, holding that "written notice may be filed at any time between the date of the rendition of the judgment or order and the fourteenth day after entry of the judgment or order[,]" refusing to "adopt [] a [] reading of Rule 4(a) that . . . would encourage unnecessary oral notices of appeal [and] jeopardize the right of appeal of a party who might not receive notice of the entry of a judgment or order." Oates, 366 N.C. at 268 (emphases added).
Here, however, we note that Rule 4(a), which governs appeal timeframes in criminal cases, does not apply to juvenile delinquency cases, which are instead governed by Rule 3.1(b) and, by extension, the timeframe set forth in N.C. G.S. § 7B-1001(b). See N.C. R. App. P. 3.1(b); N.C. G.S. § 7B-1001(b) (2023). Unlike Rule 4(a), N.C. G.S. § 7B-1001(b) makes no mention of when an order is rendered, instead basing the appropriate appellate timeframe strictly on when the order is entered. N.C. G.S. § 7B-1001(b) ("Notice of appeal and notice to preserve the right to appeal shall be given in writing by a proper party as defined in [ N.C. G.S. §] 7B-1002 and shall be made within 30 days after entry and service of the order in accordance with [ N.C. G.S. §] 1A-1, Rule 58."). Oates is therefore inapposite; and, in accordance with E.A., we are without appellate jurisdiction.
Our review of the issues Rachel raises on appeal therefore depends on her Petition for Writ of Certiorari. "The writ of certiorari may be issued in appropriate circumstances by either appellate court to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C. R. App. P. 21(a)(1) (2023). As "[a] writ of certiorari is intended as an extraordinary remedial writ to correct errors of law[,] [a] petitioner must show merit or that error was probably committed below" for issuance of the writ to be appropriate. Button v. Level Four Orthotics &Prosthetics, Inc., 380 N.C. 459, 465 (2022) (marks and citations omitted). Here, as only Rachel's argument concerning her delinquency adjudication for both assault on a school employee and assault inflicting serious bodily injury is meritorious, we allow her Petition for Writ of Certiorari in part with respect to that claim and deny it in part with respect to her remaining claims.
B. N.C. G.S. § 14-33(c)(6)
Rachel argues that N.C. G.S. § 14-33(c)(6) does not authorize her being held responsible for both assault on a school employee and assault inflicting serious bodily injury. She bases this argument on the language in N.C. G.S. § 14-33(c), which provides for liability under that provision "[u]nless the conduct is covered under some other provision of law providing greater punishment[.]" N.C. G.S. § 14-33(c) (2023). The State, meanwhile, argues that Rachel may properly be found responsible under both N.C. G.S. § 14-33(c)(6) and N.C. G.S. § 14-32.4 because each offense contains an element not included in the other, with N.C. G.S. § 14-33(c)(6) requiring the victim to be a school employee and N.C. G.S. § 14-32.4 requiring the victim to suffer serious bodily injury.
In State v. Jamison, we addressed a directly analogous issue. There, the defendant was convicted of both assault on a female and assault inflicting serious bodily injury at trial and challenged the convictions on appeal on the basis of the very same statutory language in N.C. G.S. § 14-33(c) that Rachel uses to challenge her own adjudications. State v. Jamison, 234 N.C.App. 231, 238 (2014). We held that the language "[u]nless the conduct is covered under some other provision of law providing greater punishment" precluded liability for both offenses:
Defendant argues that the plain language of the prefatory clause contained in this statute, i.e., "[u]nless the conduct is covered under some other provision of law providing greater punishment," reveals an intent by our General Assembly to limit a trial court's authority to impose punishment for assault on a female when punishment is also imposed for higher class offenses that apply to the same conduct. Here, because Defendant was also convicted and sentenced for assault inflicting serious bodily injury, a felony, Defendant argues that he should not be punished for committing an assault on a female. Compare [ N.C. G.S.] § 14-33(c) (classifying assault on a female as a Class A1 misdemeanor), with [ N.C. G.S.] § 14-32.4 (classifying assault inflicting serious bodily as a Class F felony). We agree.
As our Supreme Court has stated,
[t]he intent of the Legislature controls the interpretation of a statute. When a statute is unambiguous, this Court will give effect to the plain meaning of the words without resorting to judicial construction. [C]ourts must give [an unambiguous] statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.
State v. Davis, 364 N.C. 297, 302[] . . . (2010) (second and third alterations in original) (internal quotation marks and citations omitted).
Here, Defendant's interpretation of the assault on a female statute comports with its plain language. The prefatory clause unambiguously bars punishment for assault on a female when the conduct at issue is punished by a higher class of assault. Furthermore, this interpretation is consistent with previous decisions of our appellate courts dealing with other statutes that contain identical prefatory language. See, e.g., id. at 304-05[] . . . (collecting cases).
Accordingly, because Defendant was convicted and sentenced for both categories of assault in the court below, the trial court acted contrary to the statutory mandate of [ N.C. G.S.] § 14-33(c).Jamison, 234 N.C.App. at 238-39.
Jamison is on point and directly controls our holding in this case. While the State defends the result at trial on the basis that "felony assault inflicting serious bodily injury [] and misdemeanor assault of a school employee [] involve different statutory provisions and each offense contains an element not present in the other"- seemingly conflating the statutory construction analysis with our elemental test for double jeopardy, see, e.g., State v. Etheridge, 319 N.C. 34, 50 (1987), State v. Sparks, 182 N.C.App. 45, 47 (2007), aff'd, 362 N.C. 181 (2008)-it ignores the fact that the same could have been said for the offenses in Jamison. Accordingly, we vacate the adjudication order in part inasmuch as it did not arrest judgment for the charge under N.C. G.S. § 14-33(c)(6). As a result, we vacate the disposition order and remand for entry of a new adjudication order and a new dispositional hearing.
We note that the vacated Disposition Order in this matter contains a clerical error in that it reflects a conclusion of law that "[t]he [trial c]ourt is required to order a Level 1 disposition" on the AOC-J-461. As the trial court properly observed at the hearing, the juvenile's disposition was subject to either a Level 1 or a Level 2 disposition in accordance with N.C. G.S. § 7B-2508(f) for the "serious" offense with a "low" delinquency history. N.C. G.S. § 7B-2508(f) (2023).
CONCLUSION
The juvenile could not be held responsible for both assault on a school employee and assault inflicting serious bodily injury for the same conduct. The trial court's adjudication and disposition orders are therefore vacated, and we remand for a new sentencing hearing.
APPEAL DISMISSED IN PART; VACATED AND REMANDED IN PART.
Chief Judge DILLON and Judge CARPENTER concur.
Report per Rule 30(e).