Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Practice / Criminal Practice – Juvenile – Custodian – Statutory Amendment – ‘Pending’ Case – Confession – Knowing & Voluntary

Criminal Practice – Juvenile – Custodian – Statutory Amendment – ‘Pending’ Case – Confession – Knowing & Voluntary

This opinion has been withdrawn.

State v. Benitez (Lawyers Weekly No. 011-025-18, 35 pp.) (Donna Stroud, J.) Appealed from Lee County Superior Court (Douglas Sasser & C. Winston Gilchrist, JJ.) N.C. App.

Holding: If applicable, a statutory amendment would have excluded the juvenile defendant’s uncle as his “custodian.” Although the amendment applied to cases “pending” at the time it became effective, and although defendant’s appeal was pending, the amendment does not apply to his case because he had already pled guilty and had judgment entered against him.

We affirm the superior court’s denial of defendant’s motion for appropriate relief. We remand for further findings with regard to defendant’s motion to suppress.


The amendment to G.S. § 7B-101 applied to actions filed or pending on or after Oct. 1, 2013. We have not found a simple definition of when a criminal action is “pending.”

Defendant’s prosecution at the trial court level ended in May of 2013, when judgment was entered. At that point, defendant’s appeal began, and that appeal is still “pending.”

Though a criminal defendant may appeal or file post-conviction motions or petitions to this court, our Supreme Court, or federal courts for decades to come, if charges are not dismissed, the judgment concludes the “pending” criminal action and after that, an appeal or review process may begin. While a criminal defendant has no obligation to appeal or challenge his judgment, he will have to see his pending charges through to judgment. In addition, the trial court can only apply the law as it exists when the trial court is considering a particular issue.

Therefore we conclude entry of a criminal judgment ends a “pending” criminal action for purposes of § 7B-101(8). If we concluded any later point in time, some actions might never cease to be “pending”; there would be no true finality to criminal cases.

Defendant’s judgment was entered in May of 2013. His case was no longer “pending” in October of 2013, so the amendment is not applicable to him.

We cannot expect an attorney to foresee future changes to all statutes which may relate to a defendant’s case. The relevant law was the same at the time of defendant’s questioning in 2007, the inception of the superior court prosecution in 2009, the hearing on defendant’s motions to suppress in 2012, and the entry of judgment in 2013.

Under that law, defendant’s uncle qualified as his “custodian” because defendant’s mother had placed him in his uncle’s care; defendant had been in his uncle’s care for a year and a half at time defendant was questioned; defendant had no other relatives outside El Salvador; the uncle provided defendant with food, shelter, clothing and medical care; and the uncle had been recognized as defendant’s custodian by the local schools and health department. Therefore, trial counsel did not provide ineffective assistance of counsel in failing to move to suppress defendant’s statement based on G.S. § 7B-2101(b) since his “parent, guardian, custodian, or attorney” was present during his custodial interrogation.

Motion to Suppress

Defendant argues that his confession was not knowingly and voluntarily given. In ruling on defendant’s motion to suppress his confession, despite a 2012 order’s recognition that defendant suffered from a “mental illness or defect,” the superior court failed to address defendant’s education, background, and intelligence or whether he had the capacity to understanding the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.

The trial court had before it extensive evidence regarding defendant’s experience, education, background, and intelligence and capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. The trial court must evaluate the evidence, consider its weight, and make the required findings, but here it simply did not.

On remand, the trial court’s focus must be on the relevant time period and defendant’s circumstances at that time as a 13-year-old boy who required a translator and who suffered from a “mental illness or defect” and not on the 10 years of litigation of this case since that time. The trial court must make findings as to defendant’s mental state and capacity to understand the Miranda warnings at age 13, including the nature of his “mental illness or defect” and the impact, if any, this condition had on his ability to make a knowing and intelligent waiver.

Affirmed in part; remanded in part.


Leave a Reply

Your email address will not be published. Required fields are marked *