In re T.E.F.

Justice NEWBY

dissenting.

The juvenile placed a “hooked” knife against the neck of the victim and robbed him and two companions. At his hearing, the juvenile indicated his desire to admit his guilt. (The State agreed to dismiss one charge.) Before accepting the admission, the trial court personally addressed the juvenile and determined the admission was “knowing and voluntary.” Only after doing so did the court find the juvenile to be delinquent and enter the disposition as required by law. Now the majority remands this case to an overworked trial court because the trial judge failed to ask one question, namely, whether the juvenile was satisfied with his attorney. It does this despite no allegation of prejudice to the juvenile. I believe neither a plain reading of the statute nor case law supports this decision and respectfully dissent.

I.

In keeping with fundamental concepts of justice and due process, Subchapter II of the Juvenile Code, N.C.G.S. §§ 7B-1500 to -2827, provides for the protection of certain rights of the juvenile during delinquency proceedings. Section 7B-2000 explicitly recognizes a juvenile’s right to be represented by counsel, whether appointed or retained. Similarly, N.C.G.S. § 7B-2405 requires the trial court to protect certain rights of the accused juvenile, specifically, the privilege against self-incrimination and the right to counsel, to written notice of the facts alleged, to confront and cross-examine witnesses, to discovery and to certain other rights afforded adult offenders.

When a juvenile wishes to admit allegations of criminal wrongdoing, the court must determine that the admissions are knowing and *577voluntary, “a product of informed choice.” N.C.G.S. § 7B-2407(b) (2003). See, e.g., In re W.H., 166 N.C. App. 643, 646, 603 S.E.2d 356, 358 (2004). N.C.G.S. § 7B-2407(a) has codified various elements that constitute “informed choice.” Thereunder, the trial court must “inform” the juvenile of four basic rights and make “determinations” regarding two others.

N.C.G.S. § 7B-2407(a) states:.

(a) The court may accept an admission from a juvenile only after first addressing the juvenile personally and:
(1) Informing the juvenile that the juvenile has a right to remain silent and that any statement the juvenile makes may be used against the juvenile;
(2) Determining that the juvenile understands the nature of the charge;
(3) Informing the juvenile that the juvenile has a right to deny the allegations;
(4) Informing the juvenile that by the juvenile’s admissions the juvenile waives the juvenile’s right to be confronted by the witnesses against the juvenile;
(5) Determining that the juvenile is satisfied with the juvenile’s representation; and
(6) Informing the juvenile of the most restrictive disposition on the charge.

N.C.G.S. § 7B-2407(a) (2003).

No doubt the General Assembly chose its language carefully. Whereas subdivisions (a)(1),(3),(4), and (6) specifically instruct the trial court to “inform” the juvenile of certain rights and the consequences of relinquishing those rights; subdivisions (a)(2) and (5) require the court to make “determinations” regarding the juvenile’s understanding of the charges and satisfaction with legal representation. Although a court could directly inquire of the juvenile whether he understands the charges and is satisfied with his representation, the answers would not be dispositive. The intent of subdivision (a)(5) is not that the juvenile be subjectively “satisfied” with his counsel, but that the “juvenile’s representation” meet an objective minimum standard of competency. The legislature has emphasized the objective nature of the inquiry by use of the term “representation” *578instead of attorney. In essence, subdivision (a)(5) is simply designed to insure that the right to counsel as specified in N.C.G.S. § 7B-2405 has been met.

Without analysis, the majority characterizes the six subdivisions of N.C.G.S. § 7B-2407(a) as required “questions to be asked of a juvenile,” apparently interpreting “informing” and “determining” to both mean “inquire.” The majority further states subsection 2407(a) requires a court to ask a juvenile “each of the six specifically mandated questions listed in [the statute].” The majority, however, never expressly states the “specifically mandated questions” nor addresses the specific statutory language. N.C.G.S. § 7B-2407(a) does not utilize the term “inquiry” or anything comparable.

By ignoring the plain language of the statute, the majority rewrites subdivision (a)(5) to read as follows: “Specifically inquire whether the juvenile is satisfied with counsel.” However, the role of the appellate court is not to superimpose its view upon the plain language of the statute. See Henry v. Edmisten, 315 N.C. 474, 491, 340 S.E.2d 720, 731 (1986) (“The role of the Court is not to sit as a super legislature and second-guess the balance struck by the elected officials.”).

The following statute, referenced by the majority, exemplifies the careful choice of words by the General Assembly.

By inquiring of the prosecutor, the juvenile’s attorney, and the juvenile personally, the court shall determine whether there were any prior discussions involving admissions, whether the parties have entered into any arrangement with respect to the admissions and the terms thereof, and whether any improper pressure was exerted. The court may accept an admission from a juvenile only after determining that the admission is a product of informed choice.

N.C.G.S. § 7B-2407(b) (emphasis added).

This statute specifically directs the trial court to “inquire” into particular matters before making a “determination.” In contrast, subdivision 2407(a)(5) simply instructs the court to “determine” whether a juvenile is satisfied with his representation. I do not believe the legislature used the term “determine” to mean “inquire,” particularly in view of its having used the two terms to convey two distinct meanings in the very next subsection. The language of subdivision 2407(a)(5) is similar to the last phrase of subsection (b) in which the court must *579“determine” that the admission “is a product of informed choice.” Does this mean the court simply asks one question of the juvenile, “Is your admission the product of informed choice?”? No, the trial court makes the determination based upon all the available information. Likewise, regarding “satisfaction” with representation, the court is not to inquire as to the juvenile’s subjective evaluation, but by considering all of the available information, “determine” if the juvenile’s attorney meets a basic standard of competency in his representation of his client.

Directly asking the juvenile if he is satisfied with his representation is not very helpful to the trial court’s determination. In Subchapter II of the Juvenile Code, our legislature has recognized the lack of maturity and life experiences of juveniles. In answering whether he is “satisfied” with his legal representation, it is conceivable that a juvenile could express dissatisfaction with an extremely competent counsel. Conversely, a juvenile could express appreciation for a particularly personable counsel who has failed to meet the minimum standards of competency.

The facts of this case establish that the trial court had sufficient bases to determine the competency of the fourteen-year-old juvenile’s legal representation without directly asking the juvenile. At his hearing, when the juvenile indicated through counsel his desire to admit the offenses, the trial court personally addressed the juvenile and asked eight questions:

Do you understand that you have the right to remain silent and that anything you say may be used against you?
Do you understand that you have the right to deny that you committed the offenses of three counts of armed robbery and one count of assault with a deadly weapon?
Do you understand by admitting that you did this that you give up the constitutional right to confront the witness against you?
Do you understand that by admitting this that you could be sent to training school?
Do you understand what you’re charged with?
Do you have any questions for [your attorney] or for me?
Do you have any further questions at all?
Do you understand what’s going on?

*580The order and content of these questions reveal that the trial court was familiar with and adhered to the statutory requirements of N.C.G.S. § 7B-2407(a). In particular, the last three questions indicate the trial court’s understanding of his need to determine whether the juvenile was objectively satisfied with his representation and that his admission was knowing and voluntary. The trial court properly considered all of the answers provided by the juvenile. The court inquired as to the existence of plea arrangements or discussions. The State presented the factual basis for the juvenile’s admission. Thus, it appears the trial court considered all of the factors and determined the juvenile understood the charges and had received satisfactory legal representation. The trial court further determined that the admission was knowing and voluntary and accepted it.

As noted by the majority, the court could have used AOC Form J-410 when conducting its inquiry. Although this form is not mandatory, it supports my analysis. Rather than relying on the majority’s “six specifically mandated questions,” it includes sixteen questions clearly designed to consider all the circumstances so as to insure that admissions are knowing and voluntary.

The majority admits “the trial court conducted a detailed and careful examination of T.E.F,” but states that the examination “fell short of the specific and mandatory language of N.C.G.S. § 7B-2407(a)” by failing to “specifically question . . . whether the juvenile was satisfied with his legal representation.” The majority reasons the failure to ask this one specific question “precluded the trial court from accepting T.E.F.’s admission as being a product of his informed choice.” By so ruling, the majority superimposes its rigid legalism over the legislative intent as expressed in the plain language of the statute.

II.

Assuming arguendo that the trial court was required by the statute to ask the juvenile if he were satisfied with his representation, a mere technical violation should not result in a new hearing. At a minimum, prejudice must be shown by way of harmless-error analysis. Here, there is no suggestion of prejudice.

Our General Assembly has enacted a statutory harmless-error rule.

A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a *581reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is on the defendant.

N.C.G.S. § 15A-1443(a) (2003). This statute has been applied to numerous situations, including capital litigation. See, e.g., State v. Walters, 357 N.C. 68, 81, 588 S.E.2d 344, 352, cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003).

Likewise, most violations of federal constitutional rights are subject to harmless error analysis. In that context, if a defendant is represented by counsel, there is a strong presumption that any error is subject to harmless error analysis. See generally State v. Allen, — N.C.-,-S.E.2d-(July 1, 2005) (No. 482PA04) (Martin, J. concurring in part and dissenting in part) (applying federal law).

N.C.G.S. § 7B-2407(a) is virtually identical to the comparable adult provision N.C.G.S. § 15A-1022(a) which provides:

(a) Except in the case of corporations or in misdemeanor cases in which there is a waiver of appearance under G.S. 15A-1011(a)(3), a superior court judge may not accept a plea of guilty or no contest from the defendant without first addressing him personally and:
(1) Informing him that he has a right to remain silent and that any statement he makes may be used against him;
(2) Determining that he understands the nature of the charge;
(3) Informing him that he has a right to plead not guilty;
(4) Informing him that by his plea he waives his right to trial by jury and his right to be confronted by the witnesses against him;
(5) Determining that the defendant, if represented by counsel, is satisfied with his representation;
(6) Informing him of the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced, including that possible from consecutive sentences, and of the mandatory minimum sentence, if any, on the charge; and
*582(7) Informing him that if he is not a citizen of the United States of America, a plea of guilty or no contest may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

N.C.G.S. § 15A-1022(a) (2003). Except for the phrase “if represented by counsel,” subdivision (a)(5) is substantively identical in the two statutes.

Case law is clear that mere non-compliance with this statute applicable to adults does not, absent a showing of prejudice, render the plea or admission invalid or entitle the accused to a new hearing or trial:

Our courts have rejected a ritualistic or strict approach in applying these standards and determining remedies associated with violations of G.S. § 15A-1022. Even when a violation occurs, there must be prejudice before a plea will be set aside. Moreover, in examining prejudicial error, courts must “look to the totality of the circumstances and determine whether non-compliance with the statute either affected defendant’s decision to plead or undermine the plea’s validity.”

State v. McNeill, 158 N.C. App. 96, 103, 580 S.E.2d 27, 31 (2003) (internal citations omitted). For a juvenile no less than for an adult, the dis-positive issue is whether the juvenile’s admission was voluntary and knowing. If it is clear that an error had no effect and that the individual would have made the same decision even without the error, then the error is harmless beyond reasonable doubt.

Two of the juvenile cases cited by the majority utilized the totality of the circumstances test to ascertain if a juvenile’s decision was voluntary and knowing. In re Kenyon N, 110 N.C. App. 294, 298, 429 S.E.2d 447, 449 (1993); In re Chavis, 31 N.C. App. 579, 581, 230 S.E.2d 198, 200 (1976), disc. rev. denied, 291 N.C. 711, 232 S.E.2d 203 (1977). I would apply this test to determine if the juvenile would have made the same decision even if the judge had asked him if he were satisfied with his representation.

In this case, the juvenile unambiguously indicated that he understood the charges, that he understood the potential penalties, and that he understood all rights he forfeited by his admission. It is not reasonable to suppose that if the judge had directly inquired into the juvenile’s subjective satisfaction with his representation that the *583juvenile’s decision would have been different. The juvenile’s admission was voluntary and knowing and the error, if any, was harmless beyond reasonable doubt.

Certainly I agree with the majority that the State has an enhanced burden to protect the rights of juveniles. However, I do not believe that applying the plain meaning of our statutes “undermine [s]” that goal. Put precisely, a juvenile’s right to competent counsel is not “undermined” by a trial court’s determination of the adequacy of representation without directly inquiring of the juvenile. Likewise, I believe the majority’s criticism of the use of “totality of the circumstances” and harmless-error analysis is unfounded. A juvenile’s right to competent legal counsel is not “undermined” by an appellate court’s review of all of the circumstances and conclusion that the failure of a trial court to specifically inquire as to the juvenile’s satisfaction with representation was not prejudicial beyond a reasonable doubt.

Further, as noted by the Court of Appeals dissent, rote statutory adherence as mandated by the majority undermines the protection of juveniles’ rights. The “six mandatory questions” could be properly asked and answered and the admission accepted; whereas a “totality of the circumstances” review could demonstrate the admission was not knowing and voluntary. Unfortunately, this legalistic approach “elevates form over substance.” In re T.E.F., 167 N.C. App. 1, 8, 604 S.E.2d 348, 353 (2004) (Levinson, J., dissenting).

For the foregoing reasons, I respectfully dissent.