STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF LENOIR 05 DOJ 1519

Todd Austin Cahoon
Petitioner
vs.
N. C. Criminal Justice Education
and Training Standards Commission
Respondent / )
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)
)))) / PROPOSAL FOR DECISION
GRANTING SUMMARY JUDGMENT

Upon consideration of Respondent’s Motion for Summary Judgment filed on November 4, 2005, and without response from Petitioner, the undersigned hereby proposes that the Respondent’s Motion for Summary Judgment be granted as follows:

FINDINGS OF FACT

1. The North Carolina Criminal Justice Education and Training Standards Commission (hereafter referred to as the Criminal Justice Commission) has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9, Subchapter A, to certify criminal justice officers and to deny, revoke or suspend such certification.

2. Petitioner was issued Probationary Certification (PRA XXXXX3808) by the Respondent on March 5, 2004 to serve as a law enforcement officer with the Grifton Police Department.

3. On or about June 15, 2005, Petitioner pled guilty to, and was found guilty of two (2) counts of Aiding/Abetting Underage Possession of Alcohol by Person Less Than 21 Years Old (04 CR 54441; 04 CR 54442), in violation of N.C. Gen. Stat. § 18B-302(c)(2), in Lenoir County’s District Court. The District Court Judge entered a Prayer for Judgment Continued on June 15, 2005 on this case.

4. On September 14, 2005, Respondent mailed Petitioner a letter of Proposed Suspension of Law Enforcement Officer Certification. Such proposed suspension was based on Petitioner’s convictions of the misdemeanor offense of Aiding/Abetting Underage Possession of Alcohol by Person Less Than 21 Years Old.

CONCLUSIONS OF LAW

1. The parties are properly before the Office of Administrative Hearings and the Office of Administrative Hearings has subject matter and personal jurisdiction in this matter.

2. Pursuant to 12 NCAC 09A .0204(b)(3)(A), the Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the certified officer has committed or been convicted of a criminal offense or unlawful act as defined in 12 NCAC 09A .0103 as a Class B misdemeanor.

3. N.C. Gen. Stat. § 18B-302(c)(2) provides that “Aiding/Abetting Underage Possession of Alcohol by a Person Less Than 21 years Old” is a Class 1 misdemeanor offense. That offense constitutes a Class B misdemeanor as “Class B misdemeanor” is defined in 12 NCAC 09A .0103(22)(b) of the Commission’s administrative rules, and the Respondent’s Class B Misdemeanor Manual .

4. Pursuant to 12 NCAC 09A .0103(5), “convicted” or “conviction” means and includes, for purposes of this Chapter, the entry of: (A) a plea of guilty; (B) a verdict or finding of guilty by a jury, judge, magistrate, or other duly constituted, established adjudicating body, tribunal, or official, either civilian or military; or (C) a plea of no contest, nolo contendere, or the equivalent.

5. Under Respondent’s rules, Petitioner was convicted of two (2) counts of the criminal offense of Aiding/Abetting Underage Possession of Alcohol by Person Less Than 21 year Old, a "Class B misdemeanor" under Respondent’s rules, upon a plea of guilt by Petitioner and finding of guilty by the District Court Judge, irrespective of the imposition of a Prayer for Judgment Continued. Under Britt v. N.C. Sheriff’s Education and Training Standards Commission, 348 N.C. 573, 501 S.E.2d 75 (1998), the Court held that a plea of no contest, followed by a prayer for judgment continued constitutes a “conviction” as that term is defined in Respondent’s regulations, i.e. 12 NCAC 10B .0103(2)c and 12 NCAC 10B .204(d)(2). The Court further noted that “this Court and the General Assembly have recognized that a plea may amount to a ‘conviction’ despite the issuance of a prayer for judgment continued.” (Citing State v. Sidberry, 337 N.C. 779, 781-782, 448 S.E.2d 798, 800-801 (1994) and N.C.Gen. Stat. § 15A-1331(b)(1997)).

6. Based on the Petitioner’s conviction of two (2) counts of the “Class B misdemeanor” offense of Aiding/Abetting Underage Possession of Alcohol by Person Less Than 21 Years Old, and the above–referenced regulations, there are no litigable issues for the Administrative Law Judge to decide regarding whether Respondent should suspend Petitioner’s certification as a law enforcement officer. Respondent has carried its burden of proof in support of its Motion for Summary Judgment.

7. Pursuant to 12 NCAC 09A. 0205(b)(1), when the Commission suspends the certification of a criminal justice officer, the period of sanction shall be not less than five (5) years for the conviction of a “Class B misdemeanor.”

PROPOSAL FOR DECISION

Based on the foregoing Findings of Facts and Conclusions of Law, the undersigned proposes that the Final Decision maker GRANT Respondent’s Motion for Summary Judgment, dismiss this contested case petition, and suspend Petitioner’s law enforcement certification for a period of not less than five years.

NOTICE AND ORDER

The N.C. Criminal Justice Education and Training Standards Commission will make the Final Agency Decision in this contested case. That agency is required to give each party an opportunity to file exceptions to this proposal for decision, to submit proposed Findings of Fact, and to present oral and written arguments to the agency pursuant to N.C. Gen. Stat. § 150B-40(e). In accordance with N.C. Gen. Stat. § 150B-36(b), that agency shall also serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina, 27699-6714.

This the 2nd day of December, 2005.

______

Melissa Owens Lassiter

Administrative Law Judge

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