STATE OF NORTH CAROLINA

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					 STATE OF NORTH CAROLINA                                      IN THE OFFICE OF
                                                          ADMINISTRATIVE HEARINGS
 COUNTY OF WILKES                                                 06 DOJ 1061
 __________________________________

 SEAN THOMAS ROBERTS,                          )
        Petitioner,                            )
                                               )
                      v.                       )             SUMMARY JUDGMENT
                                               )            PROPOSAL FOR DECISION
 NORTH CAROLINA SHERIFFS’                      )
 EDUCATION AND TRAINING                        )
 STANDARDS COMMISSION,                         )
         Respondent.                           )
 __________________________________


        THIS MATTER came on for consideration before the undersigned Administrative Law
Judge by request of the Respondent pursuant to G.S. § 150B-40(e) for the designation of an
Administrative Law Judge to preside over a contested case under Article 3A, Chapter 150B of the
North Carolina General Statutes. Arguments for summary judgment were heard by the undersigned
Administrative Law Judge via a telephone conference originating from the Office of Administrative
Hearings in Raleigh, North Carolina. The Petitioner stipulated to the Findings of Fact contained
herein and to the authenticity and admissibility of all Respondent’s exhibits. The Respondent
stipulated to the authenticity and admissibility of all Petitioner’s Exhibits.


                                        APPEARANCES

       Petitioner:            Sean Thomas Roberts, Pro Se
                              422 Woodhaven Road
                              North Wilkesboro, North Carolina 28659-7642

       Respondent:            John J. Aldridge, III,
                              Special Deputy Attorney General
                              N.C. Department of Justice
                              9001 Mail Service Center
                              Raleigh, North Carolina 27699-9001

                                              ISSUE

        Is the Respondent’s proposed denial of Petitioner’s justice officer certification supported
by the greater weight or preponderance of evidence?


                                                1
                                       FINDINGS OF FACT

        1.      The North Carolina Sheriff’s Education and Training Standards Commission has the
authority granted under Chapter 17E of the North Carolina General Statutes and Title 12 of the North
Carolina Administrative Code, Chapter 10B, to certify justice officers and to revoke, suspend or deny
such certification.

      2.      Petitioner was appointed as a deputy sheriff with the Wilkes County Sheriff’s Office
on May 13, 2004.

        3.      The required Personal History Statement (Form F-3) was submitted with Petitioner’s
application for certification. In response to question number 47 regarding criminal offenses,
Petitioner answered “Yes” and noted that he had juvenile charges on his record.

        4.       A records check documented two 1995 charges from Florida. The Division then
requested certified documentation and statements from the juvenile records relating to these charges.
When this information was received from Florida officials, it was discovered that Petitioner was
charged in other incidents occurring in 1993, 1994 and 1996. In all instances, Petitioner was charged
as a juvenile, as these incidents occurred while Petitioner was 16 years old or younger.

        5.      Petitioner, in several cases, entered a plea of “no contest,” under Florida juvenile
law. Florida statute chapter 985.233(4)(b) requires that, “the court shall stay adjudication of guilt
and instead shall adjudge the child to have committed a delinquent act. Adjudication of delinquency
shall not be deemed a conviction, nor shall it operate to impose any of the civil disabilities ordinarily
resulting from a conviction.”

       6.      On September 28, 1993, the Petitioner was charged with “Aggravated Battery” in St.
Lucie County, Florida. (Docket Number 93-1519-DL11)

       7.       On February 1, 1994, the Petitioner was charged with ”Petit Theft” in St. Lucie
County, Florida. (Docket Number 93-1775-DL11) On February 1, 1994, the Petitioner was charged
with “Burglary of a Conveyance” in St. Lucie County, Florida. (Docket Number 93-1776-DL11)
On May 17, 1994, the Petitioner was charged with “Grand Theft Auto” in St. Lucie County, Florida.
(Docket Number 94-464-DL11)

       8.       On May 16, 1995, the Petitioner was charged with “Burglary of a Structure” in St.
Lucie County, Florida. (Docket Number 94-1258-DL) On May 16, 1995, the Petitioner was charged
with “Grand Theft Auto” in St. Lucie County, Florida. (Docket Number 94-1258-DL) On May 16,
1995, the Petitioner was charged with “Dealing In Stolen Property” in St. Lucie County, Florida.
(Docket Number 94-1258-DL)




                                                  2
        9.      On February 26, 1996, the Petitioner was charged with “Burglary of a Conveyance”
in St. Lucie County, Florida. (Docket Number 96-216, 96-153) On February 26, 1996, the
Petitioner was charged with “Grand Theft” in St. Lucie County, Florida. (Docket Number 96-216,
96-153) On April 23, 1996, the Petitioner was charged with “Resisting Officer Without Violence” in
St. Lucie County, Florida. (Docket Number 96-247-DL11)

       10.     Under Florida law (Florida statute chapter 784.045) the elements of “Aggravated
Battery” include intentionally or knowingly causing great bodily harm, permanent disability or
permanent disfigurement or use of a deadly weapon. Under Fla. Stat. ch. 784.045 (2005),
“Aggravated Battery” is a felony in the second degree.

        11.      As of 1996, Florida law (Florida statute chapter 810.02) defined “Burglary” as
entering or remaining in a dwelling, a structure or a conveyance with the intent to commit an offense
therein, unless the premises are at the time open to the public or the defendant is licensed or invited
to enter or remain.

        12.       Under Florida statute chapter 810.02, “Burglary” is a felony in the first degree if, in
the course of committing the offense, the offender: (a) makes an assault or battery upon any person;
(b) or is or becomes armed within the dwelling, structure, or conveyance, with explosive or a
dangerous weapon; or (c) enters an occupied or unoccupied dwelling or structure and: (1) uses a
motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing
the offense, and thereby damages the dwelling or structure; or (2) causes damage to the dwelling or
structure, or to property within the dwelling or structure in excess of $1,000.

        13.      Under the statute, “Burglary” is a felony in the second degree if, in the course of
committing the offense, the offender does not make an assault or battery and is not and does not
become armed with a dangerous weapon or explosive, and the offender enters or remains in a: (a)
dwelling, and there is another person in the dwelling at the time the offender enters or remains; (b)
dwelling, and there is not another person in the dwelling at the time the offender enters or remains;
(c) structure, and there is not another person in the structure at the time the offender enters or
remains; or (d) conveyance, and there is another person in the conveyance at the time the offender
enters or remains.

        14.      Under the statute, “Burglary” is a felony in the third degree if, in the course of
committing the offense, the offender does not make an assault or battery and is not and does not
become armed with a dangerous weapon or explosive, and the offender enters or remains in a: (a)
structure, and there is not another person in the structure at the time the offender enters or remains;
or (b) conveyance, and there is not another person in the conveyance at the time the offender enters
or remains.

        15.        Under Florida law (Florida statute chapter 812.014) the elements of “Theft” include
knowingly obtaining or using, or endeavoring to obtain or to use, the property of another with the
intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or


                                                  3
a benefit from the property; or (b) appropriate the property to ones own use or to the use of any
person not entitled to the use of the property.

       16.      Under Florida statute chapter 812.014, theft is “Grand Theft” and a felony in the first
degree if: in the course of committing the offense the offender uses a motor vehicle as an
instrumentality other than merely as a getaway vehicle, to assist in committing the offense and
thereby damages the real property of another; or (b) in the course of committing the offense the
offender causes damage to the real or personal property of another in excess of $1,000.

        17.      Under the statute, “Grand Theft” is a second degree felony if the property stolen is
valued at $20,000 or more, but less than $100,000. Under the statute, “Grand Theft” is a felony in
the third degree if: the property is valued at $300 or more, but less than $20,000 or if the property is
valued at $100 or more, but less than $300, and is taken from a dwelling or from the unenclosed
curtilage of the dwelling, or if the property is a motor vehicle, except if it classifies the offense as
first degree.

        18.       Under Florida statute chapter 812.014, theft is “Petit Theft” if the property stolen is
valued at $100 or more, but less than $300, and is a misdemeanor in the first degree. If the
perpetrator who commits “Petit Theft” has previously been convicted of any theft it should be
punished as a first degree misdemeanor. Theft of any property not designated to be a grand theft is a
petit theft of the second degree and punishable by a second degree misdemeanor. “Petit Theft” is a
felony of the third degree if the person committing the offense has previously been convicted two or
more times of any theft.

       19.      Florida statute chapter 812.019, “Dealing in Stolen Property” is a felony in the
second degree when an offender traffics in, or endeavors to traffic in property that he or she knows or
should know was stolen. Under the statute, “Dealing in Stolen Property” is a felony in the first
degree when an offender initiates, organizes, plans, finances, directs, manages, or supervises the theft
of property and traffics in stolen property.

        20.     Florida statute chapter 843.02 defines the perpetrator of “Resisting an Officer
Without Violence” as whosoever shall resist, obstruct, or oppose any officer . . . or any other person
legally authorized to execute process in the execution of legal process or in the lawful execution of
any legal duty, without offering or doing violence to the person of the officer. Under the statute,
“Resisting an Officer without Violence” is a first-degree misdemeanor.

        21.     Some thirteen years ago, on September 22, 1993, law enforcement in St. Lucie
County, Florida investigated a complaint of two juveniles shooting BB guns. Upon arrival, the
investigating officer talked to the boys, one of whom was Petitioner, and Petitioner admitted to
shooting the victim.

       22.     On September 22, 1993, Petitioner was fourteen years old and on the date in
question he was playing at a friend’s house with BB guns, unsupervised. At the friend’s house, the


                                                  4
friend dared Petitioner to use his BB gun to shoot another friend who was knocking at the front door.
Petitioner reports that the friend opened the door, and Petitioner shot the other friend in the leg with
the BB gun. At this point, the victim went home to retrieve his BB gun and when he returned the
three boys continued to shoot each other with their BB guns. Petitioner reports that all three boys
were charged. As a result of this incident, Petitioner spent three weeks at a juvenile detention
center and was released to minimum probation.

        23.      On October 26, 1993, law enforcement in St. Lucie County, Florida investigated a
report of a stolen vehicle. Officers found the vehicle, ran its tags, and discovered it was, in fact,
stolen. Officers followed the vehicle until it parked. Both suspects in the vehicle were boys and
were told to remain in the vehicle until backup units arrived. Upon securing the suspects, one of
whom was young Sean Thomas Roberts, the vehicle was searched and items stolen from “Eckerd
Drugs” were discovered. Officers interviewed Petitioner, and he admitted that he was involved in
burglarizing a store at the mall, a drug store, and then steeling a vehicle that was found with keys still
inside it.

        24.       The October 1993 incident occurred when Petitioner was fourteen years old. It
began when a friend visited his house in the early hours of the morning stating that he wanted to run
away from his drug-addicted mother. Petitioner agreed that they should run away. The two walked
several miles, eventually sleeping under a bridge. When they awoke they were very hungry, and the
friend threw a rock through a store window to get some food inside. They burglarized that store and
then ran to the Eckerd Drugs where they again threw a rock through a window and again burglarized
the store, this time retrieving a flash light. The two boys then ran down a dirt road and looked for a
car with the keys still in it. When they found such a car, they got in and drove off. They were
apprehended a short time later. Petitioner reports that the boy he was with admitted to throwing the
rocks through the store windows and entering the stores while Petitioner remained outside.
Petitioner also reports that the other boy admitted to taking the car.

        25.     In the matter of the charge of “Petit Theft” (93-1775-DL11), Petitioner was adjudged
delinquent and placed on Community Control with the Department of Juvenile Justice for an
indeterminate amount of time. As such, he was ordered to: pay restitution in the amount of $125.87,
obey a curfew of six o’clock P.M.; complete one hundred hours of community service; attend school
daily and have no unexcused absences; participate in family counseling; have no contact with the
victim; not associate with the co-defendant; have a TASC evaluation; pay the public defender’s fees
of $45.00; and pay $50.00 to the Crimes Compensation Trust Fund. In the matter of the charge of
“Burglary of a Conveyance” (93-1776-DL11), Petitioner was adjudged delinquent and placed on
Community Control with the Department of Juvenile Justice for an indeterminate amount of time.
As such, he was ordered to: pay restitution in the amount of $246.50; obey a curfew of six o’clock
P.M.; complete one hundred hours of community service; attend school daily and have no unexcused
absences; write an apology to the victims and file a copy of the apology with the Court; participate in
family counseling; have no contact with the victim; have a TASC evaluation; pay public defender’s
fees of $45.00; and pay $50.00 to the Crimes Compensation Trust Fund.



                                                  5
        26.      Regarding the matter of grand theft auto (Docket Number 94-464-DL11), on March
13, 1994, law enforcement officers in St. Lucie County, Florida responded to a call from a victim
claiming that the Petitioner (when a boy) had been at her house the day before riding her family’s
motorcycle with her son, and she and her husband suspected Petitioner of stealing the motorcycle.
The victim told officers that the motorcycle was locked to a fence post at the time of the theft that the
perpetrator dug up the entire fence post to release the motorcycle, and the motorcycle was then
pushed away from the residence. The officer observed tire tracks leading from the victim’s residence
to the Petitioner’s parent’s residence. According to the police report, the officer initially talked to
Petitioner about the incident. Petitioner denied being involved, but blamed someone else. Petitioner
later confessed to taking the motorcycle, going for a joy ride, and then discarding the motorcycle in a
canal. The motorcycle was damaged and needed repairs, but was returned to the owners.

        27.     Petitioner was fourteen at the age at the time of the incident. He reported that he
did take the bike out of jealousy. Petitioner admits to pulling up the fence post, removing the bike
from the victim’s property, riding the bike until it ran out of gas, and then leaving the bike in the
canal. He reported that he was glad to have been taken to a detention center as a result of this
incident because at the center he could rely on having three meals a day and running water.

        28.      In the matter of the charge of “Grand Theft Auto” (94-464-DL11), Petitioner was
adjudged delinquent and committed to the Department of Juvenile Justice for an indeterminate
period of time. He was ordered to be placed in a level four, low risk residential treatment facility.
Pending placement, he was held in secure home detention for no longer than 5 days. Petitioner was
further ordered to: comply with the sanctions from cases 93-1775-DL11 and 93-1776-DL11; obey a
curfew of six o’clock P.M.; attend school daily, having no unexcused absences, and provide weekly
progress reports to HRS; write an apology to the victims and file a copy with the Court; participate in
family counseling; attend a tour of the Martin County Boot Camp program and write an essay on the
experience; pay $50.00 to the Crimes Compensation Trust Fund; and be advised that the Court will
suspend placement if he voluntarily attends the Anchor House Program for a year with out any
problems.

        29.      In the matter of “Burglary of a Structure, Grand Theft and dealing in stolen property
(Docket Number 94-1258-DL), on July 14, 1994, law enforcement in St. Lucie County, Florida was
informed by a maintaining supervisor for Big Red Tomato Packers that a lawnmower was missing
from their warehouse. The supervisor had followed the tire tracks of the lawnmower and a track of
cut grass from the warehouse to 936 Wagner Place where the mower was discovered in the backyard
of a residence. The supervisor called 911. On August 4, 1994, a witness reported to law
enforcement in St. Lucie County, Florida that he observed a young Sean Thomas Roberts riding a
lawnmower. The witness said that Petitioner asked him if he wished to purchase the lawnmower for
forty dollars. The witness agreed to buy the lawnmower at that price and then Sean took the money
from the witness and left. Shortly thereafter, law enforcement arrived at the witness’s residence to
reclaim the lawnmower because the lawnmower had been reported as stolen from the Big Red
Tomato Company. The mower was identified as the same serial number as the stolen lawnmower.



                                                  6
         30.      Petitioner states that he remembers being accused of these crimes by a “so called
witness,” but reports that the witness recanted in the courtroom and identified himself as the
perpetrator of the offense. Petitioner reports that the witness/perpetrator admitted that Petitioner had
nothing to do with the offense, but that he identified Petitioner as the suspect because he knew of
Petitioner’s past juvenile record. The Petitioner reports that the perpetrator’s mother convinced him
to tell the truth. Petitioner says he was released. The State announced a “nolle prosequi” on the
above charges.

        31.      In the matter of “Burglary of Conveyance, Grand Theft and dealing in stolen property
(Docket Number 96-216; 96-153), on January 25, 1996, law enforcement in St. Lucie County,
Florida took a report of a burglary of a conveyance from victim-one. He reported that his vehicle had
been broken into through the driver’s side window and that the perpetrator had removed stereo
equipment and a television from the vehicle. The law enforcement officer took a similar report from
victim-two who reported that his vehicle had been burglarized and, chain saws, climbing gear, a
Pioneer stereo, an amplifier, and a Sony AM/FM cassette player had been taken. On January 27,
1996, law enforcement in St. Lucie County, Florida was dispatched to the scene where victim-one
was recovering some of his stolen property. Upon arrival, victim-one reported to the officer that a
young Sean Thomas Roberts had described a television and a stereo for sale, and victim-one thought
the property might be the same television and stereo that had been stolen from his car. Victim-one
asked Petitioner if he had any other property for sale, and the Petitioner responded that he had
already sold some stereo equipment, and identified the buyer. Petitioner described the stereo
equipment that had already been sold, and based on this description, victim-one believed it to be his
property.

         32.      Victim-one informed a young Sean Thomas Roberts that he was interested in buying
a television and a stereo, but needed to get some more money from home. When victim-one went
home, he contacted law enforcement, and law enforcement responded to the scene of the sale. Law
enforcement decided to allow the sale to occur at victim-one’s home as planned between victim-one
and the Petitioner. When the parties arrived at victim-one’s house, victim-one told Petitioner that to
pay for the television and stereo he would have to go to the grocery store to cash a check. So victim-
one, Petitioner, and a third party, Rhodes, got into victim-one’s truck, with the stolen property, and
began driving to the grocery store. While in route to the grocery store, law enforcement affected a
traffic stop on victim-one’s vehicle. At the stop, victim-one identified the television as his property,
and said he didn’t know who owned the stereo. The officer then placed Petitioner under arrest and
was putting him in the patrol car when Petitioner broke away and ran across the road and into a
nearby trailer park. The officer and victim-one pursued Petitioner for some time but lost sight of
him. Law enforcement established a perimeter around the trailer park, and a K-9 unit was brought in
to investigate. The officer then went to the residence of the first buyer of the stolen goods, and the
buyer told him that he obtained possession of the items in the evening on January 25, 1996. The
buyer told the officer that Petitioner had given the items to him in exchange for money owed for rent.
Victim-one identified the property possessed by the buyer as his property. The buyer relinquished
the property to law enforcement for evidence and investigation. One of the items, a Pioneer AM/FM
cassette vehicle stereo, had had the serial number scratched off. Victim-two identified this cassette


                                                 7
player as his property. The officer later contacted the buyer about having the rest of the stolen
property returned to victim-two. On February 1, 1996, the buyer brought three chainsaws, climbing
gear, a Sony AM/FM stereo, and an amplifier to the officer’s office. According to the buyer,
Petitioner had helped him gather all the stolen property for return to victim-two. Buyer said
Petitioner admitted to him that he had placed the stolen Pioneer stereo and amplifier in his residence.
The items were stolen sometime in the early morning hours of January 27, 1996, and the Pioneer
stereo and amplifier were recovered less than twenty-four hours after the crime occurred.

        33.      On December 5, 1996, Petitioner was sixteen years old. He went with a friend to a
residence where he broke into a pickup truck and stole speakers, a portable television, a car stereo, an
amplifier, and some compact discs. Petitioner says that a person he lived with advised him of an
unlocked car with these goods inside. Petitioner says that although the original report states that he
also stole three chainsaws, another amplifier, tree climbing gear, and an all weather stereo, this is
untrue. Petitioner reports that a third individual stole these items and sold them. Petitioner (when a
boy) admits to selling the television and speakers for money. Petitioner also admits to resisting
arrest because his girlfriend was pregnant at the time, and he did not want to be in jail during this
period.

        34.      In the matter of 96-153, the Petitioner was adjudged delinquent and ordered to be
committed to the Department of Juvenile Justice for an indeterminate period of time. Further the
Petitioner was ordered to enter a level six, moderate risk residential treatment facility. He was also
ordered to comply with all the previous sentences in the above cases, as well as obey a curfew of six
o’clock P.M.; sign up for the GED program and to the best of his ability obtain a GED; write an
apology to the victims and file a copy with the Court; have no contact with the victims; pay $50.00 to
the Crimes Compensation Trust Fund; and tour the Martin County Boot Camp and write an essay
about the experience. This sentence was imposed to run consecutive to the Petitioner’s commitment
at the present time.

         35.    Regarding “Resisting an Officer without Violence,” (Docket Number 96-247-DL11),
on February 14, 1996, law enforcement in St. Lucie County, Florida executed a warrant for arrest on
a young Sean Thomas Roberts, Petitioner. During the arrest process, the Petitioner was placed under
arrest, but when the reporting officer attempted to escort Petitioner out of the building, Petitioner
attempted to “make a run for it” while going down the porch stairs. At this point the officer grabbed
Petitioner by the arm, and placed him against the wall of the residence. This action caused
Petitioner’s head to hit the wall first resulting in a laceration over Petitioner’s his right eye.
Petitioner was sent in the patrol vehicle to the Lawnwood Emergency Room for medical treatment.
Petitioner was placed under arrest for resisting without violence and transported to the jail.

        36.      Petitioner reports that on February 14, 1996, he was staying at a friend’s house when
several officers arrived at the house to serve warrants on him for his arrest. During the arrest process,
Petitioner reports that the officers thought he was trying to escape while going down the stairs, so the
arresting officer slammed him against the brick wall on the side of the house, which caused a
laceration over Petitioner’s eye. Petitioner reports that he was taken to the hospital for stitches and


                                                  8
that this was the last incident for which he was arrested.

         37.    Petitioner admits that as a result of the above incident he decided to make a lifestyle
change and to “grow up and be a man.” After the incident he was placed in a boy’s home and during
that placement missed the birth of his first child. He reports that missing that event caused him to
feel stronger about his decision to change his lifestyle.

         38.       Petitioner’s wife, Jamee Roberts, wrote a letter on his behalf stating that when
Petitioner and Jamee met at age thirteen, Petitioner’s life was very tumultuous. Petitioner was living
in and out of his mother’s house, where she lived with her boyfriend. Because Petitioner’s mother
had a substance abuse problem, Petitioner and his brother were unsupervised most of the time, and
the house where they lived was in an unsanitary state with bugs and drug paraphernalia strewn about.
Jamee became pregnant with their first child when Petitioner was fifteen. Soon after, Petitioner was
sent to live in a juvenile detention center and while there decided to change his life. He received his
driver’s license, focused on his schooling, worked a day job, attended parenting classes, and attended
church. This was the last time Petitioner was in trouble.

        39.       When Petitioner was released from the juvenile detention center, he and Jamee
decided to move to Tampa to be near her mother. While in Tampa, Petitioner worked a landscaping
job to support the family. A few years later, Petitioner and Jamee decided to move to North Carolina
to be closer to her grandparents. Petitioner continued to work to support the family, first working for
“American Drew,” and then at “Tyson.”

        40.      While at Tyson, Petitioner decided to pursue his goal of becoming a law enforcement
officer and attended night school to get his G.E.D. From there he received Basic Law Enforcement
Training and has now been employed by the Wilkes County Sheriff’s Office for two years. This is
his dream job, and he now uses this job to support his wife and three kids.

        41.      Petitioner wrote a letter on his own behalf asking the Commission to consider his
past. Petitioner was born in 1979 and a week after his birth, his mother was involved in a car
accident which left her with a broken neck. Because of his mother’s injuries, Petitioner was passed
around between family members in different states, at times living with his mother, and once living
in foster care. When Petitioner did live with his mother, he was exposed to her drug abuse and drug
habits, observing her take drugs and traveling with her to buy drugs. Petitioner resided with his
mother permanently beginning at the age of thirteen. Petitioner’s mother was constantly “strung
out,” so he was unsupervised most of the time. Shortly after moving in with his mother, Petitioner
joined a gang.

        42.      Petitioner met Jamee, who is now his wife, and she became pregnant with their first
child at the age of fifteen. Soon thereafter Petitioner was sent to a juvenile detention center and
while Petitioner was there, his first child was born. Petitioner was upset to miss the birth of his first
child and began to get his life together so that he would be with her and her mother. After being
released from juvenile detention, Petitioner moved with Jamee to Tampa to be close to her parents.


                                                  9
        43.      While in Tampa, Petitioner began working with a landscaping company and within a
few months, Petitioner had advanced to supervisor. At age seventeen, Petitioner and Jamee moved
to Fort Peirce, Florida, and in 1999, they had their second child. In 2000, they moved to Wilkesboro,
North Carolina with Jamee’s parents. In Wilkesboro, Petitioner began doing furniture work at
American Drew. After the events of September 11, 2001, Petitioner was laid off from American
Drew due to labor cuts. Soon after, Petitioner took a job at Tyson, quickly moving from line worker
to supervisor. Because Petitioner wanted to make more money to support his family, he changed
positions to chicken catcher.

        44.      Petitioner wanted to become a law enforcement officer, so he returned to school to
get his G.E.D. so he could qualify to begin law enforcement training. When Petitioner entered
B.L.E.T. he told the director about his past criminal charges, and Petitioner was informed that he
could proceed with B.L.E.T. as long as he was never charged as an adult. Petitioner attended
B.L.E.T. while maintaining his job as a chicken catcher, working from 2 A.M. to 12 P.M. and then
going to school from 5 P.M. to 9 P.M. each night. Once a week he also worked as a karate instructor
at a local karate school. Petitioner and his wife had their third child in 2004 during the time that
Petitioner was in school.

        45.       In May 2004, Petitioner was hired by the Wilkes County Sheriff’s Office. At the
sheriff’s office, Petitioner worked first as a jailer and then as a patrolman and is currently on patrol
duties. Petitioner says this job means a lot to him and requests that the Commission not deny his
certification.

        46.      Sheriff Dane Mastin wrote a letter in support of Petitioner. Sheriff Mastin hired
Petitioner two years ago. Sheriff Mastin was aware of Petitioner’s juvenile record from Florida at
the hiring but believed that the juvenile record would have no bearing on certification. During the
final interview, Petitioner informed Sheriff Mastin about his tumultuous childhood and extensive
court record. Sheriff Mastin expressed that he had concerns, but because the records were sealed he
could not investigate further. Sheriff Mastin reports that Petitioner is an “exemplary employee”
whose professionalism and work ethic have earned him a second chance. Petitioner encourages
“lawful, moral behavior” from others and brings a “needed perspective” to Wilkes County law
enforcement.

        47.     Captain Bobby Walsh, a supervisor of Petitioner’s, wrote a letter in support of
Petitioner. Captain Walsh reports that Petitioner exemplifies the characteristics one would expect of
a sheriff deputy, in every aspect of his employment. Captain Walsh hopes the Commission will
allow Petitioner to continue to achieve his goal of being a law enforcement officer.

        48.      Sergeant Scott Curry wrote a letter in support of Deputy Roberts. Sergeant Curry has
observed Deputy Roberts as a patrolman and believes him to be professional, trustworthy, and “one
of the best officers at the Wilkes County Sheriff’s Office.”



                                                 10
                                    CONCLUSIONS OF LAW

        1.       The Office of Administrative Hearings has personal and subject matter jurisdiction
over this contested case. To the extent that the Findings of Fact contain Conclusions of Law, or that
the Conclusions of Law are Findings of Fact, they should be so considered without regard to the
given labels.

        2.        Pursuant to 12 NCAC 10B .0204(a)(1), the Commission shall revoke or deny the
certification of a justice officer when the Commission finds that the applicant for certification or the
certified officer has committed or been convicted of a felony.

        3.      In all cases cited above, the Petitioner was a juvenile and was adjudged delinquent
and placed in the care and control of the State of Florida Department of Juvenile Justice. In no
instance was Petitioner convicted of a felony. In fact, under Florida law, an adjudication of
delinquency shall not be deemed to be a conviction. Further, the case law as well as various federal
commissions speaking to juvenile justice indicates, and the Undersigned so concludes, that
Petitioner’s actions as a juvenile, and adjudications of delinquency, cannot be held to be
commissions of felonies. To do so would violate the heart of the notion of due process and
undermine the very fabric of rehabilitation of juvenile offenders.

        4.     Nothing in the record indicates the standard of proof used in evaluating and
adjudicating any of the actions of the Petitioner. Though obviously meeting the standard of proof
required for an adjudication of delinquency, nothing in the record indicates anything other than a
delinquency finding would be and was at the time, an unconstitutionally low standard of proof for an
adjudication of a felony in any of the matters set forth in Petitioner’s juvenile record. This is made
all the more apparent by the record’s indications that Petitioner was denied a right to trial by jury,
which of course would be required for claims of a felony, but would not be required for an
adjudication of delinquency. Further, nothing in the record indicates that Petitioner was allowed to
appeal the findings of delinquency as he would be for commissions of felonies.

        5.      Most juvenile justice systems adhere to the philosophy that the proper role of that
system is not primarily to ascertain whether the child was guilty or innocent of the elements that
make up various felonies, but how has the child become what he is, and what can best be done in his
interest and in the interest of the State to prevent him from spiraling downward. If the juvenile
system wants to find the guilt or innocence of the child and seek to find him accountable for all the
elements required for committing a felony, that system will seek to have the juvenile bound over and
tried as an adult.

       6.       The philosophies and purposes of the federal Juvenile Justice and Delinquency
Prevention Act, 18 U.S.C. § 5031-42 (1988) (in effect at the time of Petitioner’s juvenile actions),
are very much akin to most state goals and purposes of the handling of juveniles, that being, to
provide special procedures for the handling of persons who are juveniles at the time they have “their


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run in with the law.” Under this act, prosecution results in an adjudication of status-not a criminal
conviction. United States v. Frasquillo-Zomosa, 626 F.2d 99, (9th Cir.), cert. denied, 449 U.S. 987,
101 S.Ct. 405, 66 L.Ed.2d 249 (1980); see also United States v. Duboise, 604 F.2d 648, (10th
Cir.1979). The purpose of the federal juvenile delinquency proceeding, like most state juvenile
delinquency proceedings, is to remove juveniles from the ordinary criminal process in order to avoid
the stigma of a prior criminal conviction and to encourage treatment and rehabilitation. See United
States v. Mechem, 509 F.2d 1193, (10th Cir.1975); Cotton v. United States, 355 F.2d 480, (10th
Cir.1966).

         7.       To find Petitioner committed felonies when he was adjudicated delinquent, and
knowing he was denied protected rights afforded adults, would be a backdoor entrance into placing
the stigma of the commission of a crime on a juvenile and thwarting the very goals for a young
delinquent to turn his life around and advance forward as an adult in any career his skills and talents
take him. Moreover, the preponderance of the evidence does not support the conclusions that
Petitioner’s actions as a juvenile and adjudication of delinquency rise to the level of commissions of
felonies. Further, equity of purpose and treatment would require the Respondent to attempt to gather
all of the juvenile records of all present and future justice officers holding certification to ascertain
whether they have juvenile records and whether those records are made clear, and due process was
afforded, so as to determine that those officers committed a felony while a juvenile.

       BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned
makes the following:

                                   PROPOSAL FOR DECISION

       There is sufficient evidence in the record to properly and lawfully support the Conclusions of
Law cited above. Based on the conclusions above, the Respondent’s proposed action to deny the
Petitioner’s application for certification based upon Petitioner’s juvenile record is not supported by a
preponderance of the evidence and such denial should not proceed based on that juvenile record.

                                                NOTICE

        The Agency making the Final Decision in this contested case is required to give each party an
opportunity to file Exceptions to the Proposal for Decision, to submit Proposed Findings of Fact and
to present oral and written arguments to the Agency. N.C. Gen. Stat. §150B-40(e). The Agency that
will make the Final Decision in this contested case is the North Carolina Sheriffs’ Education and
Training Standards Commission.

        This the 27th day of November, 2006.

                                                ____________________________
                                                Augustus B. Elkins II
                                                Administrative Law Judge


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