Week in Review: July 27-31

Good morning readers! It’s the last week in July, can you believe it? Is time flying by or is it just us? Let’s start your weekend off with a new OJD blog.

Raise the Age Tip of the Week

How Do I Know the State Will be Seeking the Gang Enhancement Against My Juvenile?

Under current law, there is no process for notice to the juvenile and the juvenile’s attorney that the state is seeking the gang enhancement.  As the juvenile’s attorney, you should consider the following:

  • Get a copy of the gang assessment from DJJ prior to adjudication
  • Argue that the notice of gang enhancement be presented pre-adjudication
  • Develop a theory of defense against client’s involvement in gang activity
  • Prepare for a hearing on the issue
  • Request a hearing, similar to an adjudicatory hearing
  • Request the court make findings on the record and appeal where  appropriate

A Bit of Housekeeping!

OJD is working from home for now and if you need to reach us for a case consultation, upcoming training, or have a question about court? Don’t forget you can email us for a faster response! Click here for links to our email addresses.

Upcoming Events

August 7, 2020 from 3:00-4:00 PMJen Story, Tessa Hale, Mary Stansell are presenting a new CLE: Making the Connection- Education Advocacy and Juvenile Defense. Come to this session to learn the basics of special education laws and school-based intervention plans; how to issue-spot when students’ unaddressed needs in schools are exacerbating their behaviors; and how to incorporate this knowledge into your advocacy in a way that sets juveniles up for long-term success.  You can register for this CLE here and will be sent the meeting link information afterwards.

Thursday, August 13, 6:00-7:30 please join us for COVID-19: The State of Our Mental Health Part II. This session will focus on the mental health and issues younger adults and youth are facing due to this pandemic. Featuring Nikki Croteau-Johnson, MA, LPA, Clinical Program Director at NC Child Treatment Program and Dorothy Hairston-Mitchell, Clinical Associate Professor and Supervising Attorney for the Juvenile Law Clinic at NCCU. Please click here to register for the event. You will receive the Zoom link afterward registering.

Opportunity!

LaTobia is looking for guest bloggers to contribute to our Week in Review. Defenders and those in juvenile justice are welcome to write in on topics of their expertise: secure custody, mental health in juveniles, etc! We want to hear from you! There’s plenty more weeks left in the year! Reach out to LaTobia here for more information.

THAT’S ALL FOR JULY! HAVE A GREAT WEEKEND!

A Lawyer’s View: Admissions and Use of Transcript of Admission by a Juvenile

Happy Friday Readers! No Week in Review this week, but please keep reading for our new series: “A Lawyer’s View.”

When may an admission by a juvenile be accepted?  Is a transcript of admission by a juvenile, Form AOC-J-410 required for adjudication?

AOC-J-410 and Legal Requirements

AOC provides numerous forms for use in court proceedings, some required and others not.  While a transcript of admission by a juvenile is not specifically required for adjudication, it is best practice to utilize the form. This form tracks the necessary language set out in the Juvenile Code, N.C. Gen. Stat. § 7B-2407.  Because only adult superior court, not district court, requires plea transcripts, it may be thought that in juvenile court, the transcript of admission is only utilized in felony cases.  It should be noted that 7B-2407 applies to both misdemeanors and felonies. 

N.C. General Statute § 7B-2407 establishes the criteria to determine when admissions by a juvenile may be accepted.  Subparagraph (a) requires the court to address the juvenile personally and inform the juvenile of the right to remain silent and that any statement the juvenile makes may be used against the juvenile; determine if the juvenile understands the nature of the charges; inform the juvenile of the right to deny the allegations in the petition; inform the juvenile that, by the juvenile’s admissions, the juvenile is waiving the right to be confronted by the witnesses against the juvenile; determine that the juvenile is satisfied with the juvenile’s attorney; and inform the juvenile of the most restrictive disposition.

Subparagraph (b) requires the court to inquire of the prosecutor, the juvenile’s attorney and the juvenile personally to determine whether there were prior discussions involving admissions, whether the parties have entered into any arrangements and, if so, the terms of any admission.  Further, the court is required to determine whether “any improper pressure was exerted.”  The statute specifically states, “The court may only accept an admission after determining that the admission is a product of informed choice.”

Subparagraph (c) requires the court to determine that there is a factual basis for the admission based upon any of the following: a statement of facts by the prosecutor, a written statement of the juvenile; sworn testimony which may include reliable hearsay; or a statement of facts by the juvenile’s attorney.

Form AOC-J-410, if followed closely, complies with the statutorily required inquiry of N.C. Gen. Stat. § 7B-2407.  While some districts, as a local practice, only utilize a transcript of admission for felonies, this can be problematic.  For example, if disposition is transferred to another county, newly appointed counsel on disposition should determine if the juvenile was properly advised at adjudication.  The juvenile may not know or remember being addressed by the presiding judge.  In the absence of a transcript of admission, counsel may need to obtain a copy of the recorded proceeding to determine if the proper inquiry was completed and whether the terms of the admission by the juvenile and the Court’s order are the same.  (Another AOC form provides the motion and order for obtaining the recording.  AOC-G-115.)

Caselaw

Failure to make the proper inquiry is reversible error.  Addressing each statutory prong of N.C. Gen. Stat. § 7B-2407 is mandatory.  In re T.E.F., 359 N.C. 570, 614 S.E.2d 296 (2005) establishes that the standard is not totality of the circumstances and failure to make one of the inquiries (in that case, whether the juvenile was satisfied with his counsel) is reversible error.  See also In re A.W., 182 N.C. App. 159, 641 S.E.2d 354 (2007) where both adjudication and disposition were reversed when there was no indication of informing the juvenile of his right to remain silent and that statements made could be used against him or that he had a right to deny the allegations; In re N.J., 221 N.C. App. 427, 728 S.E.2d 9 (2012) where an adjudication was reversed when the juvenile was not advised of the most restrictive disposition prior to accepting the admission; and In re Register, 84 N.C. App. 336, 352 S.E.2d 486 (1987), stating that it is impossible for a judge to determine that the admission is the product of informed choice without making the required inquiries of each child.  Counsel should note that the Court of Appeals has determined that 7B-2407 does not apply to probation violations.  In re D.J.M., 181 N.C. App. 126, 638 S.E.2d 610 (2007).

AOC-J-410 as a Helpful Tool

In addition to providing verification of the proper N.C. Gen. Stat. § 7B-2407 inquiry, AOC-J-410 provides counsel an opportunity to ensure that the juvenile understands the proceedings and can aid communication between counsel and the juvenile.  By asking questions about the juvenile’s level of education and any medications in a more formalized way, an attorney can gain additional information to aid in proper advocacy.  Counsel should consider keeping a copy of the transcript of admission for use during the adjudication.  This can be particularly useful for juveniles with Individualized Education Plans (IEPs) or for juveniles who are visual rather than auditory learners.  Reviewing a transcript of admission in advance will help prepare the juvenile for court and can decrease anxiety regarding court.  It may be the Court’s first opportunity to see and address the juvenile client, so preparation in advance is a necessity. 

Finally, should a matter be transferred to another county for disposition, the transcript of admission can provide useful information to counsel for disposition advocacy.  In addition to providing information regarding the juvenile’s educational level and whether the juvenile is taking any medications, form AOC-J-410 provides documentation of the terms of any arrangement regarding admissions.  Clerical errors on adjudication orders may be easily addressed with comparison to a transcript of admission.  A local practice that dictates that a transcript of admission only be utilized for felonies may increase the risk of errors in adjudication orders for misdemeanor offenses. 

Best Practice Based upon N.C. Gen. Stat. § 7B-2407

While use of a transcript of admission does require additional time in and out of court, best practice is to utilize AOC-J-410.  The Court may accept an admission by a juvenile only after addressing each of the criteria set out in N.C. Gen. Stat. § 7B-2407.  The statute applies equally to both misdemeanors and felonies, and failure to address even one of the criteria is reversible error.  Use of form AOC-J-410 in all cases ensures that the juvenile is properly advised pursuant to N.C. Gen. Stat. § 7B-2407, decreases the risk of errors in adjudication orders and aids in communication with the client and disposition advocacy.  If counsel is appointed in a juvenile matter for disposition following transfer from another county, counsel should carefully review the Court file and be prepared to obtain and review any recordings when a transcript of admission has not been utilized.  In cases where the proper statutory inquiry was not made, Counsel should advise the juvenile regarding entering notice of appeal.

Written by: Assistant Juvenile Defender Terri Johnson. Terris  graduated Cum Laude with a Bachelor of Science in Psychology from Duke University in 2000.  She received her Juris Doctor degree from UNC Chapel Hill School of Law in 2003, and was admitted to the North Carolina Bar in 2003.  Her practice areas included criminal law, family law and juvenile law and has focused on juvenile law as OJD’s Assistant Juvenile Defender in delinquency court in both Iredell and Alexander counties.

Week in Review: Dec 6-10

It’s the first week back from a long holiday break and OJD has been busy with all things #RaiseTheAge. Have a question or a case you could use some help on? Don’t hesistate to give us a call. We are here for you!

Januar January 2020 marks the 50th Anniversary of North Carolina’s Public Defender System. Take a look at Eric with North Carolina’s FIRST Public Defender, Wallace “Wally” C. Harrelson.

Raise the Age Tip of The Week

How Do I Know the State Will be Seeking the Gang Enhancement Against My Juvenile?

Under current law, there is no process for notice to the juvenile and the juvenile’s attorney that the state is seeking the gang enhancement.  As the juvenile’s attorney, you should consider the following:

  • Get a copy of the gang assessment from DJJ prior to adjudication
  • Argue that the notice of gang enhancement be presented pre-adjudication
  • Develop a theory of defense against client’s involvement in gang activity
  • Prepare for a hearing on the issue
  • Request a hearing, similar to an adjudicatory hearing
  • Request the court make findings on the record and appeal where  appropriate

Training!

Today Eric & Austine are traveling to Lenoir County for a Raise the Age and Juvenile Basics CLE. It’s from 1-4. See the flyer below!

2020 JTIP Summer Academy

The deadline for applications to the 2020 JTIP Summer Academy is fast approaching! Applications are due no later than January 12th, 2020, 11:59 PM EST.

*If you have already applied for the JTIP Summer Academy or you plan to submit an application, please contact Austine Long as soon as possible.

The National Juvenile Defender Center (NJDC) and Georgetown Law Juvenile Justice Initiative are excited be accepting applications for the 2020 Juvenile Training Immersion Program (JTIP) Summer Academy, which will be held in Washington, DC from May 31 – June 6, 2020.

For more information on how to apply visit https://njdc.info/our-work/jtip/jtip-summer-academy/ or see the attached application.

JOB OPPORTUNITY!

Disability Rights North Carolina (DRNC) is seeking a Staff Attorney for their Education Team with a Juvenile Justice and Race Equity Focus. The Staff Attorney will work to ensure equity in the education and criminal justice systems; represent students in special education, and school discrimination matters, including youth in juvenile detention facilities; train attorneys, advocates and other stakeholders; and participate in policy initiatives related to the school-to-prison pipeline.

Send a resume and detailed letter of interest explaining your qualifications and interest in the position to: virginia.fogg@disabilityrightsnc.org. Include Staff Attorney – Education in the subject line of the email. No phone calls please.

Exciting News!

OJD is preparing to record our first podcast of the year! Interested in being a guest? Email LaTobia for a reservation!

OJD Week in Review: September 23-27

Happy Friday Defenders! If only we could look as relaxed as this baby right? As we get close to the start date of Raise the Age, OJD is working hard to provide defenders with tangible, useful information to aid your juveniles and their case. Be on the lookout for just HOW OJD has you covered.

JOB OPPORTUNITY!

The Office of Indigent Services (IDS) is seeking a Legal Associate, direct reporting to the Deputy Director. Responsibilites include:

  • Review correspondence from clients and draft responses under direction of legal staff.
  • Assist office manager and Deputy Director in revising record retention policy and implementing digital record retention policy.
  • Manage IDS website content in coordination with Deputy Director, state defenders, fiscal staff, and IT director.

For a full description and to apply, visit here.

OJD OPPORTUNITY!

Tip of the Week:

Before You Plea

Talk your client about the impacts of an adjudication.  While not as public as adult criminal convictions, juvenile adjudications may impact the following: immigration status, educational placement, housing conditions, eligibility to play sports, placement on a sex offender registry (in NC or other states) and others.  Always consider the long-term consequences of what may first appear to be a short-term decision.

Spotlight Blog Post!

The School of Government released a blog written by, Jacquelyn Greene, regarding Raise the Age and additional changes to 7B. Yet another resource to guide you in the changes coming December 1, 2019. You can read her blog post here.

TRAINING!

This week, Eric traveled to Craven County and spoke with stakeholders and defenders regarding Raise the Age and Juvenile Justice Basics. Take a look at some of the photos!

Yesterday, Eric also hosted a Webinar regarding Juvenile Expunction.

What a week!

HAVE A SAFE WEEKEND!