Juvenile Defender Conference Speaker Spotlight – Julie Boyer

The Annual Juvenile Defender Conference, Delinquency, Race and the Role of Defense Counsel, will be held Friday, August 14.  Registration details can be found here.  Here we highlight one of the speakers, Julie Boyer, who will be presenting on Applying the School of Government Race Manual to Delinquency Cases:

Julie Boyer is an Assistant Capital Defender in the Forsyth Regional Office of the Capital Defender. Originally from Burlington, Julie graduated from the University of North Carolina at Greensboro and the University Of Illinois Urbana-Champaign School Of Law.  Julie has practiced law for over 10 years, and prior to joining the Capital Defender’s Office, she maintained a solo practice focusing primarily on indigent criminal defense and juvenile defense in the north central part of the state.  During that time Julie became a leader in juvenile defense issues and chaired the Juvenile Defense Section of the North Carolina Advocates for Justice.  Julie was one of the four attorneys appointed by the North Carolina State Bar Board of Legal Specialization to form the first Juvenile Delinquency Committee to develop the Juvenile Delinquency subspecialty of Criminal Law.  As a result she has been a State Bar Board Certified Specialist in Juvenile Delinquency – Criminal Law since 2012. Julie not only helped create the rules for the Juvenile Delinquency certification and exam, but she annually reviews applicants and grades exams, as well as participates on the Board of Legal Specialization as a committee chair. In addition to maintaining her capital caseload, Julie also provides consultations regarding sentencing in juvenile murder cases, in particular juveniles and youth in the adult criminal system facing life without parole.

US DOJ SMART Summary

The US Department of Justice recently released its SMART report addressing Prosecution, Transfer, and Registration of Serious Juvenile Sex Offenders. While the reading is interesting, what I think you will find most useful are the Appendices. They are a great quick reference for you to use with any clients you represent who are adjudicated for a sex offense who may move out of North Carolina. They provide valuable information regarding which states require juvenile sex offender registration, length of registration, and when they may be eligible for removal from the registry. A great cheat sheet to carry with you!

AN OVERVIEW OF UNREASONABLE SEARCHES AT SCHOOL & THE LEGAL STANDARDS – PART 1

This is the first in a series of blog posts addressing an important area in our work as juvenile defenders. Part 1 is an overview of the topic and subsequent posts will go into greater detail, as well as provide case sites and practical applications for you to use when representing your clients. The topics that will be addressed in greater detail in upcoming posts include: consent, reliability of sources, law enforcement and school resource officers (SROs), probable cause and reasonable suspicion, and motions to suppress.

Many of our cases are referred to the juvenile court system from the schools – primarily from SROs. When this happens, it’s not uncommon for a search to have taken place. What are the legal standards for searching juveniles in a school setting? Are the legal standards different for the principal, SRO, or law enforcement? The short answer is “yes.”

What legal standard applies depends upon:

1. Who initiated the search? and
2. Who performed the search?

The 4th amendment standard requiring probable cause for any search by law enforcement also applies to law enforcement acting alone in a school setting. Generally that means when a law enforcement officer works outside of the school system and the officer, not the school official, has initiated the search. Probable cause is also required when school officials conduct a search at the request of law enforcement.

School officials acting alone require only a reasonable suspicion. In New Jersey v. T.L.O (469 U.S. 325 (1985)) the US Supreme Court determined that reasonable suspicion for searches by school officials relates to “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or rules of the school.”
The standard that applies when school officials act in concert with law enforcement is generally dependent on several variables:

Reasonable suspicion:
• School mainly controls the search;
• Law enforcement involvement is minimal;
• School officials initiate the investigation and law enforcement conduct the search at the request of the school officials; or
• School officials perform searches based on information from, or in the presence of, law enforcement.

Probable cause:
• Usually law enforcement works outside of the school system and is not acting under the school’s direction; or
• School official acting at the direction of law enforcement.

Examples courts have found to constitute reasonable suspicion include: reliable, anonymous tip, school official witnessing an act or overhearing a conversation, reliable tip from a student (not anonymous), physical appearance of the student being under the influence of alcohol or drugs, or common sense conclusions about individual behavior, when based on more than a hunch.

Factors that have been found not to constitute reasonable suspicion include: association with wrongdoers, student’s status as a “rule breaker,” furtive gestures or noncooperation, or a hunch.

However, if the student consents to the search, neither probable cause nor reasonable suspicion is required. That consent must be:

• Voluntary (based on the totality of the circumstances);
• Cannot be established by merely showing acquiescence to a claim of lawful authority;
• May be voluntary even if the student is not informed of the right to refuse.

Consider filing a motion to suppress when there appear to be issues with the legal standard of the search. Look to see the underlying motivation for the search – was it based on a tip, was the tip reliable? If the search was based on direct observations, consider arguing the behavior can be viewed as innocent behavior or normal teenage behavior. Was there individualized suspicion? Do the school policies or the student handbook cover the type of search that was conducted?

Lastly, if your motion to suppress is denied, you need to renew your objection to the evidence or statement at trial to preserve the issue for appeal. The Juvenile Defender Manual contains an entire chapter addressing motions to suppress evidence. You can access it on our website.

JUVENILE LIFE WITHOUT PAROLE AFTER MILLER v. ALABAMA: A Report of the Phillips Black Project, July 8, 2015

The following is an excerpt from Juvenile Life Without Parole after Miller v. Alabama: A Report of the Phillips Black Project, authored by John Mills and Anna Dorn. It describes the state of the law of juvenile life without parole cases in North Carolina since the U.S. Supreme Court decision Miller v. Alabama, 132 S. Ct. 2455  (2012). The authors have assembled similar information for all U.S. jurisdictions.  If you are interested in the full report, please contact them at miller@phillipsblack.org

North Carolina was among the twenty-nine jurisdictions that had mandatory JLWOP at the time of Miller. See Miller v. Alabama, 132 S. Ct. 2455, 2474 n.15 (2012). It has since altered its statues to comply with Miller. S.B. 635, 2011 Gen. Assemb. Reg. Sess. (N.C. 2012); N.C. Gen. Stat. §§ 15A-1340.19A, 15A-1340.19B, 15A-1340.19C (2012). There are seventy-seven prisoners serving life with parole sentences imposed when they were juveniles and seventy-nine prisoners serving JLWOP sentences in North Carolina.[1]

Prior to Miller, a juvenile convicted of first-degree murder[2] was automatically sentenced to JLWOP. See N.C. Gen. Stat. § 14-17 (2013). Shortly after Miller, the North Carolina legislature amended its laws. See S.B. 635. The amended laws provide that if the defendant was convicted of first-degree murder[3] solely on the basis of the felony murder rule, the sentence shall be life imprisonment with parole. See § 15A-1340.19B(a)(1) (2012). In all other cases, the trial court is directed to hold a hearing to consider any mitigating circumstances, including those related to defendant’s age at the time of the offense, immaturity, and ability to benefit from rehabilitation, echoing the factors prescribed in Miller. See §§ 15A-1340.19B, -19C. Following the hearing, the trial court is directed to make findings regarding the mitigating factors and is given the discretion to sentence the defendant to life imprisonment with or without parole. §§ 15A-1340.19B(a)(2), 15A-1340.19C(a). The new laws are silent as to retroactivity.

The North Carolina Court of Appeals has been willing to vacate mandatory JLWOP sentences and remand for resentencing pursuant to Miller and North Carolina’s amended statutes when the case is on direct appeal. See State v. Pemberton, 743 S.E.2d 719, 728 (N.C. Ct. App. 2013); State v. Jefferson, 758 S.E.2d 186 (N.C. Ct. App. 2014) (unpublished). In State v. Lovette, 758 S.E.2d 399, 401 (N.C. Ct. App. 2014), the North Carolina Court of Appeals upheld appellant’s JLWOP sentence after a post-Miller resentencing proceeding because the trial court thoroughly weighed all relevant factors.

The North Carolina legislature has amended its laws to comply with Miller and its court of appeals has been willing to resentence defendants charged under the prior statute while their cases are on direct appeal. The issue of Miller’s retroactivity is currently pending before the North Carolina Supreme Court. State v. Young, No. 13-646,[4] relevant to North Carolina’s seventy-nine prisoners serving JLWOP.

[1] According to information provided by the North Carolina Division of Adult Corrections and Juvenile Justice, Rehabilitative Programs and Services Section in response to a request for public information.  Notes on file.

[2] In North Carolina, first-degree murder includes murder “perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction . . . lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or [a killing] committed in the perpetration or attempted perpetration [of an enumerated felony].” §14-17(a).

[3] Life with parole means the defendant “shall serve a minimum of 25 years imprisonment prior to becoming eligible for parole.” § 15A-1340.19A.

[4] Young and its companion cases were transferred to the North Carolina Supreme Court “on its own initiative” without further explanation.

Court of Appeals Delinquency Opinion

In the matter of C.J.J., 2015 N.C. App. Lexis 471 (unpublished opinion)

Rule(s): Judge can impose the maximum term of imprisonment equal to an adult sentence in the aggravated range if the court finds that the term is the best plan for the juvenile and in the interest of the State.

The State filed a petition alleging the juvenile committed larceny from the person and common law robbery. The juvenile admitted that he committed larceny from the person, and the State dismissed the other petition for common law robbery. The trial court entered a level three disposition and committed the juvenile to a youth development center (YDC) for a minimum of six months to a maximum of 39 months.

The juvenile appealed first arguing the trial court violated N.C.G.S. § 7B-2513(a) by committing him to a maximum of 39 months for the larceny from the person adjudication, which was an amount more than the presumptive sentence that an adult could receive for committing the same Class H felony. Specifically, the juvenile asserted that because N.C.G.S. 7B-2513 references structured sentencing, and N.C.G.S. 15A-1340.13 refers to an aggravated sentence as a “deviation” from presumption sentencing, “maximum term of imprisonment” should be interpreted to mean only the maximum in the presumptive range.

The Court disagreed holding that “the maximum term of imprisonment” could include a placement term equal to an adult sentence in the aggravated range for that class of felony offense with a prior record level of VI, if the court finds that the term would be the best plan for the juvenile and best interests of the State.

While the issue wasn’t raised at trial, the juvenile also argued for the application of Blakely v. Washington, which held that it was a violation of a defendant’s Sixth Amendment right to enhance a criminal sentence by aggravating factors without first submitting them to a jury and having that jury find them beyond a reasonable doubt. The Court overruled the argument noting that Blakely has only been applied to criminal proceedings involving juveniles tried as adults but not juvenile adjudications, dispositions and commitments.

Next, the juvenile contended that the trial court abused its discretion in committing him to a youth development center because the findings of fact show that his rehabilitation and treatment needs did not support the conclusion that commitment was warranted.

N.C.G.S. § 7B-2501 states that “in choosing among statutorily permissible dispositions, the court shall select the most appropriate disposition both in terms of kind and duration for the delinquent juvenile” and sets forth five factors that the court must consider in selecting a disposition. In the present case, the Court determined that the trial court made findings pursuant to the aforementioned factors in the written order and at the hearing. The Court found that while it was true that the court counselor recommended the juvenile receive treatment in the community and a level 2 disposition, it was within the trial court’s discretion to reject the recommendation. Accordingly, the disposition order was affirmed. https://appellate.nccourts.org/opinions/?c=2&pdf=32651