State of North Carolina s113

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF PITT 06 DOJ 0012

Michael Edward Sutton, )

Petitioner, )

)

v. ) PROPOSAL FOR DECISION

)

North Carolina Criminal Justice )

Education and Training )

Standards Commission, )

Respondent. )

______)

In accordance with North Carolina General Statute § 150B-40(e), Respondent requested the designation of an Administrative Law Judge to preside at an Article 3A, North Carolina General Statute § 150B, contested case hearing of this matter. Based upon the Respondent’s request, Senior Administrative Law Judge Fred G. Morrison Jr. heard this contested case in Raleigh, North Carolina on April 20, 2006.

APPEARANCES

Petitioner: Michael Edward Sutton, Pro Se

PO Box 31

Stokes, NC 27884

Respondent: Jane Ammons Gilchrist, Assistant Attorney General

Ashby T. Ray, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Is Respondent’s proposed denial of Petitioner’s law enforcement officer certification supported by substantial evidence?

RULES AT ISSUE

N.C. Gen. Stat. §14-90;

N.C. Gen. Stat. § 17C-10

12 NCAC 09B .0111(1)(a); 12 NCAC 09A .0205(a)(1)

12 NCAC 09A .0204(b)(2);12 NCAC 09B .0101(3)

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned makes the following Findings of Fact. In making the Findings of Fact, the undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. Both parties are properly before this Senior Administrative Law Judge, in that jurisdiction and venue are proper, both parties received Notice of Hearing, and Petitioner received the notification of probable cause to deny application for law enforcement officer certification letter mailed by the Respondent on November 23, 2005.

2. The North Carolina Criminal Justice Education and Training Standards Commission has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify law enforcement officers and to revoke, suspend, or deny such certification.

3. Petitioner was appointed as a full-time law enforcement officer with the Ayden Police Department in 1993. He worked with the Ayden Police Department until 1996, when he became employed with the Winterville Police Department. He separated from the Winterville Police Department in 1996. After leaving the Winterville Police Department in 1996, Petitioner allowed his law enforcement officer certification to expire.

4. Petition attended the Basic Law Enforcement Training (BLET) School at Pitt County Community College, beginning in January of 2005 and completed it on August 3, 2005.

5. After graduation from BLET in August of 2005, Petitioner sought appointment as a law enforcement officer with the Bethel Police Department. As part of this application, Petitioner signed a REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F5A) on August 23, 2005.

6. As part of the REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F5A), Petitioner was required to list any and all criminal charges and convictions. Petitioner listed that he had been charged with Felony Embezzlement in 1998 and that he had pled guilty to a reduced charge of Misdemeanor Larceny (98 CR 52127). Additionally, Petitioner listed several worthless check charges. (98 CR 13207; 02 CR 56405; 02 CR 56406; 02 CR 56407; 02 CR 56408).

7. Petitioner’s REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F5A) was submitted to the Criminal Justice Training and Standards Division of the North Carolina Department of Justice.

8. Richard Squires, an Investigator for the Criminal Justice Standards Division, was given a copy of the REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION because there was a felony charge listed on it. Investigator Squires receives all such applications so that he can make a determination as to whether there is enough evidence to prove the commission of a felony offense. As part of his investigation, Investigator Squires conducted a criminal history record check of Petitioner. As a result of that check, Investigator Squires learned that Petitioner had seven (7) additional outstanding worthless check charges in Pitt County that he had not listed on the REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F5A).

9. Investigator Squires contacted the Chief of Police in Bethel, North Carolina to request an explanation from Petitioner on the felony embezzlement charge and the failure to list the seven additional outstanding worthless check charges.

10. In response to Investigator Squires’ request, Petitioner submitted an updated REPORT OF APPOINTMENT/APPLICATION FOR CERTIFICATION (Form F5A) on September 20, 2005. Petitioner listed all seven of the previously outstanding worthless check charges on the updated form. (00 CR 54490; 99 CR 53995; 00 CR 62606; 00 CR 64752; 00 CR 61657; 00 CR 65569; 99 CR 52907) Additionally, Petitioner indicated, in writing, dated December 19, 2005, that:

The circumstances behind the seven criminal summons are as follows: I had no knowledge of the criminal summons since I had obtained a criminal history check for the BLET academy which they did not mention anything about the worthless checks at that time, nor did they mention it when I went back to get a criminal history check for Bethel to go with my application. I found out about this when Richard Squires called the Chief and notified him about this.

11. Jeff Robinson is the Director of the BLET Program at Pitt County Community College. He has been employed as the School Director since 1998. Director Robinson was the School Director when Petitioner attended BLET at Pitt County Community College in 2005.

12. On June 1, 2005, Petitioner participated in a ride-along program with the Greenville City Police Department. As a part of this program, the Greenville Police Department conducted a criminal history check of Petitioner. During this check it was discovered that Petitioner had seven outstanding worthless check charges in Pitt County. The Greenville Police Department notified Director Robinson of the outstanding charges against Petitioner.

13. Director Robinson testified, and it is found as fact, that he met with Petitioner on June 2, 2005, and verbally informed him that he had seven outstanding worthless check charges pending against him in Pitt County. Petitioner told Director Robinson that he would handle the matter. Several weeks later Petitioner told Director Robinson that he had resolved the pending charges.

14. Petitioner knew, as of June 2, 2005, that he had seven (7) worthless check charges pending against him in Pitt County and thus was untruthful to Investigator Squires in his September 9, 2005 written statement in which he stated he had no knowledge of the pending charges.

15. Petitioner was working as a sales clerk for S&K Famous Brands in the summer of 1998. His duties as a sales clerk included assisting customers, marking suits for alterations, completing sales transactions, making bank deposits and handling returns of merchandise. As part of his duties as an employee for S&K Famous Brands, Petitioner was entrusted with access to and control over the cash in the store’s cash register.

16. On or about July 16, 1998, Petitioner was working for S&K Famous Brands. While so employed, Petitioner took a suit that had been purchased and left for alterations and created a false return slip for it. Petitioner took the $317.95 generated from the false return slip and kept it for his own personal use. Petitioner then took the suit that had been left for alterations and placed it back on the sales rack. He was over age 16 when he committed these acts.

17. Sometime after July 16, 1998, the sales manager for S&K Famous Brands contacted Greenville Police Department Detective T.V. Woolard about a possible embezzlement which was discovered when the individual who had purchased the suit that Petitioner created the false return slip for came to pick up his suit and it was located on the sales floor, complete with markings for alterations.

18. Detective Woolard testified, and it is found as fact, that he met with the store manager and obtained copies of the false return receipt as well as the cash register print-outs for July 16, 1998. Detective Woolard interviewed Petitioner about his actions on July 16, 1998. Petitioner told Detective Woolard that a man came into the store with the suit in question and said he wanted to return it, but did not have a sales receipt. Petitioner told Detective Woolard that he allowed this individual to return the suit and gave him cash from the cash register. As part of his investigation, Detective Woolard asked Petitioner if he would be willing to submit to a polygraph examination. Petitioner agreed to the polygraph examination.

19. Special Agent Kelly Moser, with the North Carolina State Bureau of Investigation, conducted the polygraph examination. At the conclusion of the polygraph examination, Petitioner expressed an interest in speaking with Detective Woolard to change his version of the events. Petitioner then confessed to creating a false return slip and keeping the money for himself. Petitioner wrote out the following statement:

I, MICHAEL SUTTON, DID TAKE THE MONEY ($317.95) ON July 16 from the cash drawer and petty cash. I refunded a suit to get the money so I could a bill [sic] for my family and did not want to ask my parents for it. Suit was picked at random. I regret and am very sorry for this problem I have caused and wish and pray to resolve this however I may be able to do so.

20. This confession was signed and dated by Petitioner on 11-24-1998 and is followed with the following statement, written by Petitioner. “I acknowledge this is a non custodial confession.”

21. In November of 1998, Petitioner was charged with Felony Embezzlement, in violation of N.C. Gen. Stat. § 14-90. Petitioner pled guilty to a reduced charge of Misdemeanor Larceny in exchange for dismissal of the felony charge on or about March 19, 1999.

22. In a written statement provided to Investigator Squires about the events surrounding Petitioner’s Felony Embezzlement charge, Petitioner wrote the following:

...a gentleman came in to the store on my last day to work to return a suit. He did not have a receipt but we had done returns without a receipt before so I thought it was no big deal. I had no affiliation with the individual that returned the suit then or now. I returned the suit and gave him his money back. I later found out that someone else bought the suit I returned and the suit was suppose [sic] to be in the back to be altered. The customer had come in to pick up his suit, to find out I had put it back on the rack. I say all of this to say this. I strongly believe to this day that somehow the 3 people I turned in were somehow involved in this. I was questioned about it and I admitted to returning the suit and giving him the money.

23. Petitioner testified before the Probable Cause Committee of the Respondent in November of 2005. During his testimony he again stated that a man came in to return the suit without a receipt and he had completed the return. When asked why he had written a confession for Detective Woolard, Petitioner told the Probable Cause Committee that the reason he confessed to the embezzlement was because he was scared and that he had not really committed embezzlement.

24. In the written statement from Petitioner dated September 20, 2005 to Investigator Squires, Petitioner was not truthful about his embezzlement from S&K Famous Brands.

25. Petitioner testified that he created a false return slip and kept the $317.95 while working at S&K Famous Brands. Petitioner also testified that he was not truthful to the Probable Cause Committee of the Criminal Justice Education and Training Standards Commission, when asked about the facts surrounding his felony embezzlement charge.

26. Petitioner was not truthful to the Probable Cause Committee concerning his taking of the money from S&K Famous Brands and creating a false return slip.

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in the matter. 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.