In re T.E.F.

LEVINSON, Judge,

dissenting.

The majority unreasonably elevates form over substance when it holds that the General Assembly, in enacting N.C.G.S. § 7B-2407(a)(5) (2003), intended to grant juveniles in delinquency adjudications an inalienable right to be satisfied with counsel. As I cannot agree with the majority’s novel proposition that a trial court’s failure to ascertain a juvenile’s satisfaction with representation while accepting an admission to a delinquency petition constitutes reversible error as a matter of law, I must dissent.

*9The juvenile complains that because he was not asked by the trial judge whether he was satisfied with his representation, as required by G.S. § 7B-2407(a)(5), his plea must be set aside. Although the standards of appellate review for juvenile adjudications are not spelled out by statute, I discern no reason why the standards for adult criminal cases should not guide us by analogy. The admission of a juvenile is the equivalent to a plea of guilty by an adult in a criminal prosecution. In re Johnson, 32 N.C. App. 492, 493, 232 S.E.2d 486, 487-88 (1977). Therefore, the analysis that pertains in adult cases for determining whether a guilty plea must be set aside is relevant here.

A juvenile admission of guilt, like a guilty plea, constitutes a waiver of the Sixth Amendment right to confront one’s accusers and of the Fifth Amendment privilege against self-incrimination. See McCarthy v. United States, 394 U.S. 459, 466, 22 L. Ed. 2d 418, 424 (1969). For this reason, it is beyond dispute that a juvenile’s admission, like a guilty plea, must be made intelligently and voluntarily. See Boykin v. Alabama, 395 U.S. 238, 242, 23 L. Ed. 2d 274, 279 (1969) (“It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.”). “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 27 L. Ed. 2d 162, 168 (1970) (citations omitted).

In a juvenile adjudication for delinquency, which places the juvenile in danger of confinement, the proceedings are treated as criminal proceedings inasmuch as they must be conducted with due process in accord with the constitutional safeguards of the Fifth and Sixth Amendments. See, e.g., In re Chavis, 31 N.C. App. 579, 580, 230 S.E.2d 198, 199-200 (1976). These constitutional guarantees may, as in an adult proceeding, be waived in a juvenile adjudication only if done so intelligently and voluntarily; “the record must therefore affirmatively show on its face that the (juvenile’s] admission was entered knowingly and voluntarily.” Id. at 581, 230 S.E.2d at 200. Where the record is deficient in this regard, “the juvenile will be allowed to replead.” Id. The Juvenile Code, in G.S. § 7B-2407, reflects the Chavis requirement that the trial court must ensure the admission is entered intelligently and voluntarily before the Fifth Amendment privilege against self-incrimination and the Sixth Amendment right of confrontation may be validly waived.

*10The error in the instant case is not one of constitutional dimension. Neither the Due Process Clause nor the Sixth Amendment right to effective assistance of counsel guarantees a right that a criminal defendant be satisfied with his representation. See Morris v. Slappy, 461 U.S. 1, 75 L. Ed. 2d 610 (1983) (rejecting claim that the Sixth Amendment right to counsel includes “the right to a meaningful attorney-client relationship”); United States v. Frazier-El, 204 F.3d 553 (4th Cir. 2000). The same must be true in juvenile court, absent a clear mandate to the contrary from the General Assembly. I find no such mandate in the language of G.S. § 7B-2407, nor does the majority point to any such authority elsewhere in the Juvenile Code. Thus, “[s]o long as proceedings in the juvenile court meet the requirements of due process, they are constitutionally sound and must be upheld.” In re Burrus, 275 N.C. 517, 529-30, 169 S.E.2d 879, 887 (1969).

In the instant case, the juvenile argues that the error is a violation not of a constitutional guarantee, but of a statutory mandate. Nevertheless, he asks this Court to find the trial court’s error is reversible as a matter of law. The gravamen of his argument is that the failure to ascertain whether he was satisfied with his trial counsel undermines the trial court’s finding that his admission was based on an informed and voluntary choice. In support of this contention he refers us to United States v. Boone, 543 F.2d 1090 (4th Cir. 1976), in which the Fourth Circuit Court of Appeals, following McCarthy, applied a per se reversal standard for violations of Rule 11 of the Federal Rules of Criminal Procedure, the federal courts’ equivalent to our G.S. § 7B-2407(a). By analogy, he asks us to find the trial court’s error reversible per se. However, this line of reasoning should be rejected for two reasons. First, Rule 11, unlike G.S. § 7B-2407(a), does not require the trial court to ask the defendant whether he was satisfied with counsel. Thus, no meaningful comparison to Rule 11 error can be made in this case. Second, the per se reversal standard for Rule 11 violations was superceded by a “harmless error” standard in the 1983 amendments to the rule. See F. R. Crim. P. 11(h) (2003) (“A variance from the requirements of this rule is harmless error if it does not affect substantial rights.”). Thus, the federal courts’ per se reversal rule of McCarthy is no longer good law.1

*11Our Juvenile Code is silent on the question of the standard of review for trial court error in the application of G.S. § 7B-2407(a). However, I find no support for the argument that a failure to ask whether a juvenile is satisfied with counsel renders his admission per se invalid. On the contrary, the Criminal Procedure Act provides that, where an error arises not under the Constitution but by violation of statute, the standard of review is whether, had the error not been committed, a reasonable possibility exists that a different result would have been reached at trial. N.C.G.S. § 15A-1443(a) (2003). The burden of proving the error was prejudicial is on the defendant. Id.

I agree with the majority that the trial court’s direct questioning of the juvenile as required under G.S. § 7B-2407(a) is intended to ensure that an admission is a product of the juvenile’s informed choice, in compliance with the’constitutional “knowing and voluntary” standard articulated in Boykin and its progeny. However, a juvenile’s admission can be determined constitutionally sound without an inquiry into whether the juvenile was satisfied with counsel. We have never engaged in a hypertechnical application of the corresponding adult statute, N.C.G.S. § 15A-1022(a) (2003), to undermine the validity of an adult’s plea of guilty entered intelligently and voluntarily under the constitutional standard of Boykin. Review of the entering of a guilty plea has never involved a “technical, ritualistic approach” to the trial court’s compliance with statutory language, but instead, requires an examination of “the totality of the circumstances [to] determine whether non-compliance with the statute either affected defendant’s decision to plead or undermined the plea’s validity.” State v. Hendricks, 138 N.C. App. 668, 670, 531 S.E.2d 896, 898 (2000) (construing G.S. § 15A-1022) (citations omitted). Even where a violation of the statute occurs, appellant must show prejudice before a plea will be set aside. State v. McNeill, 158 N.C. App. 96, 103, 580 S.E.2d 27, 31 (2003) (citation omitted). Indeed, in reviewing sentencing procedures for prejudicial error, our Supreme Court has observed, “[jJustice may be served more by the substance than the form of the process. We prefer to consider each case in the light of its circumstances.” State v. Pope, 257 N.C. 326, 334, 126 S.E.2d 126, 132 (1962).

A “totality of the circumstances” inquiry necessarily includes due consideration of the age, maturity and understanding of the juvenile. See In re Meyers, 25 N.C. App. 555, 558, 214 S.E.2d 268, 270 (1975) (“Although a confession is not inadmissible merely because the person making it is a minor, to be admissible it must have been voluntary, *12and the age of the person confessing is an additional factor to be considered in determining voluntariness.”) (citation omitted).

The juvenile cases cited by the majority apply a “totality of the circumstances” test for determining whether the record affirmatively shows that a juvenile admission was intelligent and voluntary. The majority in the instant case relies on a misreading of In re Kenyon N., 110 N.C. App. 294, 429 S.E.2d 447 (1993), a case that involved a lost stenographic record of the adjudication at which the admission was entered. “The dispositive issue” was “whether the district court which initially adjudged the juvenile to be delinquent erred in accepting the juvenile’s admission.” Id. at 298, 429 S.E.2d at 449. Because no transcript could be produced of the district court hearing at which the admission was accepted, the record in Kenyon N. failed to show affirmatively that the juvenile had been informed that, among other things, he had a right to remain silent, that he had a right to deny the charges against him, and that by his admission he waived his right to confront the witnesses against him. There was no affirmative showing that the juvenile understood the nature of the charge, nor that he was satisfied with his representation. Thus, after reviewing all of the circumstances, we concluded the adjudication required reversal because “it does not affirmatively appear from the record that [any of] the provisions of [the statute] were complied with, and we are therefore unable to say that the juvenile’s admission was the product of an informed choice. Accordingly, the order adjudicating delinquency based on the admission is vacated.” Id. at 296, 429 S.E.2d at 449.

Likewise,- in the cases consolidated as In re Chavis, reversal of the juveniles’ pleas was required because, under the circumstances of that case, the record was deficient. 31 N.C. App. at 581, 230 S.E.2d 198 at 200 (“At a juvenile hearing an admission by a juvenile must be made knowingly and voluntarily, and this fact must affirmatively appear on the face of the record, or the juvenile will be allowed to replead.”).

Applying the totality of circumstances test, the record in the instant case amply shows that T.E.F.’s admission was the result of his informed choice, satisfying the constitutional standard of Boykin. T.E.F., age fourteen, answered affirmatively that he understood his right to remain silent, his right to deny the allegations in the petition, and his right to confront the witnesses against him. He answered affirmatively that he understood the allegations, and that he knew he could be sent to a training school as a result of his admission. He was *13asked whether he understood “what’s going on,” and he was asked whether he had any further questions for his attorney or for the court. The State supplied a factual basis for the allegations. T.E.F.’s counsel and his mother were both present with him in court. The record indicates the juvenile had “prior court involvement.” Undoubtedly, use of a “Transcript of Admission by Juvenile,” form AOC-J-410, in addition to the allocution required by G.S. § 7B-2407(a), is the better practice. But the trial court’s failure to ask whether T.E.F. was satisfied with his representation, under the circumstances of this case, does not render T.E.F.’s admission constitutionally or statutorily infirm such that the adjudication must be cast aside.

The majority’s rejection of a totality of circumstances test for review of the voluntariness of a juvenile admission is unsupported in law. Moreover, it undermines the majority’s stated objective, as well as the constitutional mandate, of protecting the rights of juveniles. Instead of considering all the relevant factors, the majority would merely look to whether the trial court adhered to the letter of the statute. As a result, rather than enhancing protection of a juvenile’s rights by ensuring appellate review of all relevant circumstances to verify the intelligent and voluntary nature of a juvenile admission, a strict reading of the majority opinion could narrow the scope of appellate review. For example, if the test for whether a juvenile admission is intelligent and voluntary is statutory compliance rather than totality of the circumstances, perhaps we need not consider the juvenile’s age, maturity, or level of understanding. Strict application of the majority’s approach might eliminate a juvenile’s opportunity to argue on appeal that although the trial court complied with the statute, the juvenile was nevertheless not competent to render a valid admission — truly an absurd result.

Just as a trial court’s strict compliance with G.S. § 7B-2407(a) cannot preclude later inquiry into the voluntariness of a juvenile admission, a failure to comply rigidly with the statute cannot, in and of itself, render the admission invalid. “[There is] no talismanic definition of ‘voluntariness,’ mechanically applicable to the host of situations where the question has arisen.” Schneckloth v. Bustamonte, 412 U.S. 218, 224, 36 L. Ed. 2d 854, 861 (1973); see also Wade v. Coiner, 468 F.2d 1059, 1061 (4th Cir. 1972) (holding that due process does not require “[a] catechism of the constitutional rights that are waived by entry of a guilty plea”).

The juvenile in the instant case does not argue, nor does the record suggest, that he was actually prejudiced by the error. On *14appeal, he does not state that he was dissatisfied with his appointed counsel. Moreover, he does not claim that an inquiry on that point , by the trial court would have affected his decision to enter an admission. In T.E.F.’s brief, it is claimed that the juvenile and his trial counsel “may have had severe disagreements about how to proceed or [the juvenile] may have felt that his lawyer may not have fully investigated the case so that he really felt that he had no choice but to [admit the allegations].” (emphasis added). Such hypothetical “may haves” do not amount to prejudice. The trial court’s failure to ask T.E.F. whether he was satisfied with his representation, under these circumstances, does not remotely undermine the validity of his admission.

The majority, in holding that a trial court’s failure to follow the language of G.S. § 7B-2407(a) to the letter results in reversible error as a matter of law, opens the door to automatic reversal of any juvenile delinquency adjudication where the trial court fails to perform a verbatim recitation of the allocution in the statute. Instead, the proper inquiry is whether, under the totality of the circumstances, the admission was entered knowingly and voluntarily. Because the record fully supports the finding that the admission was made knowingly and voluntarily, and because the facts in the instant case reveal no hint of actual prejudice, the juvenile’s admission is completely valid. I vote to affirm.

. “The one clearly expressed objective of Rule 11(h) was to end the practice, then commonly followed, of reversing automatically for any Rule 11 error, and that practice stemmed from an expansive reading of McCarthy." United States v. Vonn, 635 U.S. 55, 66, 152 L. Ed. 2d 90, 104 (2002).