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In re D. B.

Court of Appeals of Georgia, Fourth Division

June 5, 2017

IN THE INTEREST OF D. B., a child.

          DILLARD, P. J., RAY and SELF, JJ.

          Dillard, Presiding Judge.

         Following a hearing and the entry of an admission with a negotiated disposition, the Juvenile Court of Richmond County adjudicated D. B. delinquent for carrying a weapon within a designated school safety zone, possessing a handgun as a person under the age of 18 years, and committing criminal trespass. The juvenile court determined that D. B. should be designated as a Class-B felon under OCGA § 15-11-602 for carrying a weapon in a school safety zone and, accordingly, ordered him to serve six months in a youth development campus, committing him to the Department of Juvenile Justice for a total of eighteen months. D. B. filed a motion to vacate what he argued was a void disposition, contending that he did not qualify as a Class-B designated felon. The juvenile court agreed and amended the disposition. The State now appeals from the juvenile court's amended disposition, arguing that (1) the court lacked jurisdiction to modify its sentence after D. B. was committed to the custody of the Department of Juvenile Justice, and (2) D. B. did qualify as a Class-B designated felon. For the reasons set forth infra, we reverse.

         Viewed in the light most favorable to the juvenile court's findings and judgment, [1] the record reflects that on March 29, 2016, an administrator at D. B.'s high school received information that another student might be in possession of marijuana, which prompted a search of that student's locker. Officials found D. B.'s book bag in the locker and, within the book bag, a .38 Smith & Wesson revolver containing five rounds of ammunition.[2] D. B. was then called to the school's office, but before arriving there he saw law enforcement, took off running, and kicked a hole through a wall. But in short order, D. B. was detained and questioned. After waiving his Miranda rights in writing, D. B. admitted to bringing the gun to school, stating that he had done so "for protection."

         D. B. was later charged by delinquency petition with (1) carrying weapons within a school safety zone for "hav[ing] under his control, a weapon, to-wit: a certain handgun, while on school property . . . ."; (2) possessing a handgun as a person under 18 years of age; (3) committing criminal trespass by kicking the wall of the school, causing damage; and (4) disrupting a public school. The State further alleged in the petition that the charges against D. B., if proven, "could constitute a Class (B) designated felony according to [OCGA] § 15-11-2 et seq." As noted by the juvenile court in its disposition order, prior to the adjudicatory hearing, D. B. "entered an admission with a negotiated . . . disposition in this case that was accepted by [the juvenile] court." Thus, he was adjudicated delinquent on the first three charges, with the juvenile court concluding that the first count (carrying a weapon in a school safety zone) qualified as Class-B designated felony. The juvenile court later modified this conclusion and D. B.'s disposition after D. B. argued that his disposition was void because he did not qualify as a Class-B designated felon. This appeal by the State follows the court's modification.

          At the outset, we reject D. B.'s argument that this appeal should be dismissed because the State lacked authority to appeal under OCGA § 5-7-1. Accordingly, we deny his separately filed motion to dismiss. Although the State filed its appeal under OCGA § 5-7-1 (a) (6), which permits the State to appeal "[f]rom an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state, "[3] and we determine infra that the juvenile court did have jurisdiction, the State was nevertheless authorized to an appeal under OCGA § 5-7-1 (a) (2), which permits appeals "[f]rom an order, decision, or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds[.]"[4]

         1. The State argues that the court lacked jurisdiction to modify D. B.'s disposition after he was committed to the custody of the Department of Juvenile Justice. We disagree with the State's assertion that a juvenile court never has jurisdiction to modify a disposition on motion of a party after a juvenile has been committed to the Department's custody.[5]

         In arguing that the juvenile court lacked jurisdiction, the State relies upon cases decided under our prior Juvenile Code, citing In the Interest of K. F.[6] and In the Interest of S. S.[7] Those cases relied upon former OCGA § 15-11-40 (b), which provided that "[a]n order of the court may also be changed, modified, or vacated on the ground that changed circumstances so require in the best interest of the child, except an order committing a delinquent child to the Department of Juvenile Justice, after the child has been transferred to the physical custody of the Department of Juvenile Justice . . . ."[8]

          But in 2013, effective January 1, 2014, our General Assembly substantially revised the Juvenile Code, [9] and former OCGA § 15-11-40 (b) was replaced with OCGA § 15-11-32, [10] which provides that "[a]n order of the court may . . . be changed, modified, or vacated on the ground that changed circumstances so require in the best interests of a child except an order of dismissal following a contested adjudicatory hearing[, ]"[11] and that "[e]xcept as otherwise provided in Code Section 15-11-602, an order committing a child to [the Department of Juvenile Justice (DJJ)] may only be modified after such child has been transferred to DJJ custody upon motion of DJJ."[12]To that end, OCGA § 15-11-602 provides, in relevant part, that,

[n]otwithstanding Code Section 15-11-32, DJJ or any party may file a motion with the court seeking a child's release from placement in a secure residential facility or nonsecure residential facility, an order modifying the court's order requiring placement in a secure residential facility or nonsecure residential facility, or termination of an order of disposition for a child committed for a class A designated felony act or class B designated felony act.[13]

         Thus, under our new Juvenile Code, notwithstanding the fact that a child has been committed to the Department of Juvenile Justice's custody, under OCGA § 15-11-602, the juvenile court retains jurisdiction to consider a motion to modify its order when such a motion is filed by either the Department or any party under OCGA § 15-11-602.[14] That said, OCGA § 15-11-602 (f) further provides that "[a]ll motions filed under this paragraph shall be accompanied by a written recommendation for release, modification, or termination from a child's DJJ counselor or placement supervisor, filed in the court that committed such child to DJJ, and served on the prosecuting attorney for such jurisdiction."[15] And here, D. B.'s motion was not accompanied by such a recommendation, as required by OCGA § 15-11-602 (f) (2) (b). Moreover, D. B.'s motion also was not based on an allegation of changed circumstances.[16] Instead, D. B.'s motion was made on the assertion that his disposition and resulting commitment to restrictive custody were void.

         In the context of a criminal conviction, "a sentence is void if the court imposes punishment that the law does not allow."[17] And this is true even for defendants who plead guilty because "a defendant who knowingly enters into a plea agreement and accepts the benefit of that bargain does not waive or 'bargain away' the right to challenge an illegal and void sentence."[18] Although we can find no case law directly on point in the context of juvenile-court proceedings (and the parties cite to none), our Supreme Court has recognized that to "allow [a] defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law."[19] And, thus, a sentencing court has "jurisdiction to vacate a void sentence at any time."[20] Indeed, the only ground for authorizing a trial court to correct a sentence at any time is "that the sentence is void."[21]

          In the context of juvenile-court proceedings, it is true that "an adjudication of delinquency is not a conviction of a crime, "[22] that "[t]he juvenile court cannot find anyone guilty of a crime, "[23] and that "the commitment of a juvenile to any authorized facility is not commitment for conviction of a crime"[24] but is instead "only for rehabilitation or treatment."[25] Nevertheless, we have repeatedly recognized that, even in juvenile-court proceedings, "due process must always be scrupulously adhered to."[26] Accordingly, notwithstanding the distinction between an adjudication of delinquency and a sentence imposed upon a convicted defendant, it would be an affront to a juvenile's due process rights if a juvenile court could improperly commit a juvenile to restrictive custody[27] but fail to retain jurisdiction to correct what amounts to a void disposition.[28] Thus, when a juvenile makes a cognizable claim that his or her disposition was void, [29] in order to comport with fundamental fairness and due process of law, the juvenile court retains jurisdiction to consider and correct same.[30]

         2. The State argues that the juvenile court erred by determining that it should modify D. B.'s disposition when, contrary to the juvenile court's conclusion after considering D. B.'s motion, carrying a weapon in a school zone qualifies as a Class-B designated felony. We agree.

         It is well established that the interpretation of a statute is "a question of law, which we review de novo on appeal."[31] And we are mindful that in considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."[32] Toward that end, we must afford the statutory text its plain and ordinary meaning, [33] consider the text contextually, [34] read the text "in its most natural and reasonable way, as an ordinary speaker of the English language would, "[35] and seek to "avoid a construction that makes some language mere surplusage."[36] In summary, when the language of a statute is "plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly."[37]

         Bearing these principles of statutory construction in mind, the offenses that constitute Class-B designated felonies for purposes of the Juvenile Code are set forth in OCGA § 15-11-2, which provides, in relevant part, that "'Class B designated felony act' means a delinquent act committed by a child 13 years of age or older which, if committed by an adult, would be one or more of the following crimes: . . . [a]n act which constitutes a violation of Code Section 16-11-127.1 involving a . . . [f]irearm, as defined in Code Section 16-11-131[.]"[38] In relevant part, OCGA § 16-11-127.1 (b) provides that it is "unlawful for any person to carry to or to possess or have under such person's control while within a school safety zone . . . any weapon[.]"[39]And OCGA § 16-11-131 defines "firearm" as "includ[ing] any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge."[40] The Criminal Code further defines "handgun" as

a firearm of any description, loaded or unloaded, from which any shot, bullet, or other missile can be discharged by an action of an explosive where the length of the barrel, not including any revolving, detachable, or magazine breech, does not exceed 12 inches; provided, however, that the term "handgun" shall not include a gun which discharges a single shot of .46 centimeters or less in diameter.[41]

         The juvenile court accepted D. B.'s argument that his disposition for a Class-B designated felony was void because OCGA § 16-11-131, in addition to defining "firearm" as including "any handgun, " serves to criminalize the possession of firearms by convicted felons.[42] And because D. B. "had no adjudications, . . . was not [on] probation, . . . was not under an informal adjustment, and . . . was not under an abeyance, " he argues that the definition of "firearm" in OCGA § 16-11-131 does not apply to the facts of his case and, therefore, his act of possessing a handgun in a school safety zone did not qualify as a Class-B designated felony. But the juvenile court erred in accepting this argument.

         It is clear from the plain language of the relevant statutes that, for purposes of the Juvenile Code, the General Assembly has included within the category of Class-B designated felonies the act of carrying or possessing a firearm in a school safety zone and has further directed that "firearm" includes "handguns" by making specific reference to the definition of "firearm" in OCGA § 16-11-131. That this Section of the Criminal Code goes on to criminalize specific conduct related to its separate definition of "firearm" is of no consequence given the plain language employed by the General Assembly in OCGA § 15-11-2 (13) (N) (i) (I), quoted supra.[43]Accordingly, the juvenile court ...


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