{ "id": 4155836, "name": "IN RE: A.V.", "name_abbreviation": "In re A.V.", "decision_date": "2008-01", "docket_number": "No. COA07-360", "first_page": "317", "last_page": "321", "citations": [ { "type": "official", "cite": "188 N.C. App. 317" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "400 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527955 ], "year": 1991, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0543-01" ] }, { "cite": "331 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "659", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "314 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689817 ], "year": 1985, "pin_cites": [ { "page": "39", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0028-01" ] }, { "cite": "407 S.E.2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "875", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 720", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523266 ], "year": 1991, "pin_cites": [ { "page": "724", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0720-01" ] }, { "cite": "334 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "782", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520702 ], "year": 1985, "pin_cites": [ { "page": "115", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0110-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 4, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "248", "parenthetical": "citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)" }, { "page": "248", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "561-62", "parenthetical": "citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "177 S.E.2d 461", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "462" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 691", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553717 ], "year": 1970, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0691-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2006, "pin_cites": [ { "page": "(c)(4)" }, { "page": "(c)(4)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 535, "char_count": 10735, "ocr_confidence": 0.75, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.47190241593235743 }, "sha256": "286e5d5720c0ee922a19e033b96f7bcd382471189fe6fb75a5d85a7ef39f52c5", "simhash": "1:bb28d9a27b264edc", "word_count": 1775 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and ARROWOOD concur." ], "parties": [ "IN RE: A.V." ], "opinions": [ { "text": "CALABRIA, Judge.\nA.V. (\u201cthe juvenile\u201d) appeals from an adjudication order of the trial court adjudicating him delinquent on the charge of assault on a State employee. We affirm.\nOn 13 September 2006, Trina Bullard (\u201cMs. Bullard\u201d), a physical education teacher at Pembroke Middle School, observed a commotion among a group of students. Specifically, the juvenile was instigating a fight with another student. Since Ms. Bullard was assigned to monitoring duty, she approached the crowd of students to prevent the fight and saw the juvenile reach out to hit a younger boy. Ms. Bullard reached the students in time and prevented the juvenile from hitting the other student by grabbing the juvenile. He struggled to break free of her hold and attempted to pursue the other student. Although Ms. Bullard told the juvenile to stop struggling, the juvenile continued to struggle and both of them fell to the ground.\nThe juvenile dragged Ms. Bullard about four feet. As a result of the altercation, Ms. Bullard was struck on her jaw, suffered bruises on her arms and legs, and sustained a scratch on her ankle. The juvenile continually tried to break free of Ms. Bullard\u2019s hold. Two other teachers helped to hold the juvenile until the school resource officer arrived to restrain him in handcuffs.\nThe juvenile was charged with a Class A1 misdemeanor of assault on a State employee pursuant to N.C. Gen. Stat. \u00a7 14-33(c)(4) (2006). At the close of the evidence, the trial court adjudicated the juvenile as delinquent for assault on a State employee. Since the juvenile had been placed on twelve months probation for a prior offense, the trial court, inter alia, extended his probation for an additional six months. Juvenile appeals.\nI. Ineffective Assistance of Counsel\nJuvenile first contends he received ineffective assistance of counsel. We disagree. A juvenile has a right to counsel at a delinquency proceeding. See In re Garcia, 9 N.C. App. 691, 692, 177 S.E.2d 461, 462 (1970). \u201cWhen defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel\u2019s conduct fell below an objective standard of reasonableness.\u201d State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)). Pursuant to Braswell, the juvenile must establish both (1) that his attorney\u2019s performance was deficient, and (2) that he suffered prejudice from his counsel\u2019s deficient performance. Id. \u201cThe fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings.\u201d Id., 312 N.C. at 563, 324 S.E.2d at 248 (citation omitted).\nIn the instant case, at the close of the State\u2019s evidence, juvenile\u2019s trial counsel made a motion to dismiss the action. However, juvenile\u2019s trial counsel failed to renew the motion to dismiss at the close of all the evidence, and according to the juvenile, his counsel\u2019s failure to act equates to ineffective assistance of counsel. If juvenile\u2019s counsel had renewed the motion, the trial court would have had the opportunity to dismiss the action. Therefore, the juvenile claims he was prejudiced.\n\u201c[T]o withstand a motion to dismiss the charges ... in a juvenile petition, there must be substantial evidence of each of the material elements of the offense charged.\u201d In re Bass, 77 N.C. App. 110, 115, 334 S.E.2d 779, 782 (1985) (citation omitted). \u201cThe evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference of fact which may be drawn from the evidence.\u201d In re J.A., 103 N.C. App. 720, 724, 407 S.E.2d 873, 875 (1991) (citation omitted). For the charge of assault on a State employee, the State must present evidence of all the common elements of assault and that the victim was \u201can officer or employee of the State or any political subdivision of the State, when the officer or employee is discharging or attempting to discharge his official duties[.]\u201d N.C. Gen. Stat. \u00a7 14-33(c)(4) (2007).\nAt trial, there was no dispute that the juvenile was the perpetrator or that Ms. Bullard was a State employee. The State presented testimony from Ms. Bullard, the victim, that she ordered the juvenile to stop, but when he continued to resist and struggle, she grabbed him. Ms. Bullard testified:\nQ: Okay. What happened after you grabbed him?\nA: The other boy walked away and it took me with everything I had just to keep him from getting away from me. Eventually we fell down on the ground. He drug me probably about four feet before help got there. The other teachers came and I was sitting on top of him and they held me \u2014 helped me hold him down.\nQ: Did you say anything to him?\nA: Told him to stop.\nFurthermore, on cross-examination, Ms. Bullard stated, \u201c[The juvenile] was moving forward and I kept telling him to stop. I said, you know, stop. He was trying to break me, swinging his arms, and that\u2019s how I got hit in the jaw because he was throwing his arms and stuff trying to get away from me.\u201d The State also presented evidence from the school resource officer, Amy Dial, that the juvenile continued to struggle and \u201cpull away a little bit\u201d after she restrained the juvenile with handcuffs and led him to the school office.\nThus, in reviewing the evidence \u201cin the light most favorable to the State,\u201d we conclude the State presented substantial evidence to support the juvenile\u2019s charge of assault on a State employee to withstand a motion to dismiss the charge. Moreover, even if the juvenile\u2019s trial counsel\u2019s performance was deficient by failing to renew the motion to dismiss at the close of all the evidence, the juvenile cannot show that the trial court would have granted the motion. Therefore, the juvenile cannot show that he suffered prejudice from his counsel\u2019s deficient performance. This assignment of error is overruled.\nII. Disposition Order\nJuvenile next asserts prejudicial errors in the juvenile\u2019s disposition order. First, the juvenile argues the trial court erred by not considering the risk and needs assessment or other predispositional reports during the disposition hearing. Second, he contends the trial court erred by entering the disposition order without attaching the predisposition report as required by the disposition form. At the disposition hearing on 6 February 2007, the juvenile did not object when the trial court failed to consider the risk and needs assessment. \u201cAs a general rule, defendant\u2019s failure to object to alleged errors by the trial court operates to preclude raising the error on appeal.\u201d State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (citations omitted). However, \u201cwhen a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court\u2019s action is preserved, notwithstanding defendant\u2019s failure to object at trial.\u201d Id. Juvenile argues that although he did not object to this error at trial, his right to appeal this alleged error has been properly preserved for appellate review since he alleges the error is a statutory violation. We would agree to review juvenile\u2019s alleged error, since it is a statutory violation, if he had included the alleged disposition order error in his notice of appeal. However, when the juvenile filed his notice of appeal to this Court, the juvenile designated error only in the adjudication order and not in the disposition order.\nRule 3(d) of the North Carolina Rules of Appellate Procedure states: \u201c[t]he notice of appeal required to be filed and served by subdivision (a) of this rule . . . shall designate the judgment or order from which appeal is taken . . . .\u201d N.C.R. App. P. 3(d) (2007) (emphasis supplied). In the instant case, the juvenile\u2019s notice of appeal states: \u201cMonica [V.], mother of . . . juvenile, hereby gives notice of appeal on behalf of said juvenile in that the court found him delinquent on the charge of assault on a Government Official, February 6, 2007.\u201d In his notice of appeal, the juvenile states the court\u2019s finding of delinquency in the adjudication order, but fails to also include that he is appealing an error in the trial court\u2019s disposition order.\nThe juvenile\u2019s violation of the North Carolina Rules of Appellate Procedure is a jurisdictional defect and cannot be waived. Johnson & Laughlin, Inc. v. Hostetler, 101 N.C. App. 543, 546, 400 S.E.2d 80, 82 (1991). Therefore, this Court has not acquired jurisdiction to review the trial court\u2019s 19 February 2007 disposition order based on the juvenile\u2019s failure to file notice of appeal from that order. Juvenile\u2019s remaining assignments of error are dismissed.\nAffirmed.\nJudges STEPHENS and ARROWOOD concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Tracy J. Hayes, for the State.", "Peter Wood, for juvenile-appellant." ], "corrections": "", "head_matter": "IN RE: A.V.\nNo. COA07-360\n(Filed 15 January 2008)\n1. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to renew motion to dismiss\nA juvenile did not receive ineffective assistance of counsel at a delinquency proceeding, regarding a charge of assault on a State employee, based on his counsel\u2019s failure to renew a motion to dismiss at the close of all evidence, because: (1) there was no dispute that the juvenile was the perpetrator or that the victim was a State employee; (2) viewing the evidence in the light most favorable to the State, the State presented substantial evidence to support the charge; and (3) the juvenile cannot show the trial court would have granted the motion even if his trial counsel\u2019s performance was deficient.\n2. Appeal and Error\u2014 appealability \u2014 defective notice of appeal\nAlthough a juvenile contends the trial court erred in a juvenile delinquency case by failing to consider the risk and needs assessment or other predisposition reports during the disposition hearing, and/or by entering the disposition order without attaching the predisposition report as required by the disposition form, this assignment of error is dismissed, because: (1) the juvenile designated error only in the adjudication order and not the disposition order in his notice of appeal; (2) N.C. R. App. P. 3(d) requires the notice of appeal to designate the judgment or order from which appeal is taken; and (3) the juvenile\u2019s violation of N.C. R. App. P. 3(d) is a jurisdictional defect that cannot be waived, and thus, the Court of Appeals did not acquire jurisdiction to review the trial court\u2019s 19 February 2007 disposition order.\nAppeal by juvenile from order entered 19 February 2007 by Judge James Bell in Robeson County District Court. Heard in the Court of Appeals 17 October 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Tracy J. Hayes, for the State.\nPeter Wood, for juvenile-appellant." }, "file_name": "0317-01", "first_page_order": 347, "last_page_order": 351 }