An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-961
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014

IN THE MATTER OF:

      J.T.M.
                                               Mecklenburg County
                                               No. 10 JB 694



      Appeal by      juvenile from order entered 28 March 2013 by

Judge Elizabeth T. Trosch in Mecklenburg County District Court.

Heard in the Court of Appeals 7 January 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Michael T. Wood, for the State.

      Richard Croutharmel for appellant-juvenile.


      HUNTER, Robert C., Judge.


      Juvenile J.T.M. (“appellant”) appeals from an order entered

28   March    2013    (“the    March    2013    order”)    committing      him    to

placement in a youth development center for an indefinite period

not to exceed his 18th birthday.                On appeal, appellant argues

that the March 2013 order should be vacated because the previous

order    from    which    probation      was   imposed     exceeded      statutory

authority.      After careful review, we dismiss the appeal as an
                                         -2-
impermissible collateral attack on the trial court’s previous

order.

                                      Background

      Appellant was first adjudicated delinquent and placed on

twelve months of juvenile probation (“the first probation”) by

order    entered   14    April        2011     after      appellant    admitted     to

committing the offenses of common law robbery with a dangerous

weapon, resisting, delaying, and obstructing a police officer,

and   simple    possession       of    marijuana.          On   2   February   2012,

appellant again appeared before the trial court, this time on

the   State’s   motion     for    review       of   a   probation     violation    and

additional charges of misdemeanor larceny and resist, delaying,

and obstructing an officer.            At this hearing, appellant admitted

to one count of misdemeanor larceny and one count of injury to

real property; the State voluntarily withdrew its motion for

review of a probation violation.               Based on these admissions, the

trial court entered an order on 7 February 2012 (“the 2012

disposition     order”),    requiring        that       appellant’s    probation    be

extended twelve months from 14 April 2012, the day that the

first probationary period was set to expire, until 14 April 2013

(“the second probation”).
                                           -3-
       On 19 March 2013, appellant appeared again before the trial

court on the State’s motion for review of a violation of the

second probation.           The trial court found appellant to be in

violation of the second probation by missing 22 days of school.

Based on this violation, the trial court committed appellant to

placement      in    a   youth     development    center     for    an   indefinite

commitment not to exceed his 18th birthday.                        Appellant filed

timely notice of appeal from the March 2013 order.

                                     Discussion

                                I. Grounds for Appeal

       Appellant’s sole argument on appeal is that the trial court

lacked statutory authority to extend the first                       probation an

additional twelve months without first conducting a hearing on a

motion for review of a probation violation. Thus, because the

March 2013 order was premised on violation of the allegedly

erroneous 2012 disposition order, the March 2013 order should be

vacated.        We       dismiss    this     argument   as    an     impermissible

collateral attack on the 2012 disposition order.

       A collateral attack is one in which a party is not entitled

to the relief requested “unless the judgment in another action

is adjudicated invalid.”             Clayton v. N.C. State Bar, 168 N.C.

App.    717,    719,      608    S.E.2d    821,   822   (2005)      (citation   and
                                       -4-
quotation marks omitted).            “A collateral attack on a judicial

proceeding is an attempt to avoid, defeat, or evade it, or deny

its force and effect, in some incidental proceeding not provided

by     law   for     the   express    purpose      of       attacking    it.”   Reg’l

Acceptance Corp. v. Old Republic Sur. Co., 156 N.C. App. 680,

682, 577 S.E.2d 391, 392 (2003) (citation and quotation marks

omitted). Collateral attacks generally are not permitted under

North Carolina law. Pinewood Homes, Inc. v. Harris, 184 N.C.

App. 597, 601, 646 S.E.2d 826, 830 (2007).                     “[I]n the criminal

context, our appellate courts have held that a defendant, who

was    placed      on   probation,    cannot    in      a    probation     revocation

hearing attack the sentence imposed in the original proceeding

when the defendant did not appeal that sentence.”                       In re Webber,

201 N.C. App. 212, 219, 689 S.E.2d 468, 474 (2009); see also

State v. Holmes, 361 N.C. 410, 413, 646 S.E.2d 353, 355 (2007)

(“Defendant did not appeal the 2004 judgments, and consequently

they    became      final.     Defendant     now     attempts      to     attack   the

sentences imposed and suspended in 2004 in his appeal from the

2005     judgments      revoking     his   probation         and   activating      his

sentences.         We conclude, consistent with three decades of Court

of Appeals precedent, that this challenge is an impermissible

collateral attack on the original judgments.”).
                                      -5-
      Appellant    concedes    that      he    failed   to    appeal   the   2012

disposition order imposing the second probation.                     However, he

contends    that   his    appeal   from       the   March    2013    order   is    a

permissible collateral attack because the 2012 disposition order

is void ab initio.       We disagree.

            An order is void ab initio only when it is
            issued by a court that does not have
            jurisdiction. Such an order is a nullity and
            may   be   attacked    either   directly  or
            collaterally, or may simply be ignored.

            In contrast, a voidable order stands until
            it is corrected. It may only be corrected by
            a direct attack; it may not be attacked
            collaterally. An irregular order, one issued
            contrary to the method of practice and
            procedure established by law, is voidable.

State v. Sams, 317 N.C. 230, 235, 345 S.E.2d 179, 182 (1986)

(citations omitted).       “Where a court has authority              to hear and

determine the questions in dispute and has control over the

parties to the controversy, a judgment issued by the court is

not void, even if contrary to law.             Such a judgment is voidable,

but   not   void   ab    initio,   and    is    binding      until   vacated      or

corrected.”    Hamilton v. Freeman, 147 N.C. App. 195, 204, 554

S.E.2d 856, 861 (2001) (emphasis added)(citation omitted).

      Here, appellant alleges a statutory violation—specifically,

that “[the 2012 disposition order] was error because it was not

a dispositional alternative available to the trial court based
                                         -6-
on   J.T.M.’s    adjudication       of   delinquency   on   the     two    Class   1

misdemeanor offenses.”         Thus, appellant actually argues that the

2012 disposition order was voidable, not void ab initio, because

it was “contrary to law.”            Hamilton, 147 N.C. App. at 204, 554

S.E.2d   at   861.        Nowhere   in   his   brief   or   reply    brief    does

appellant       challenge      the       trial    court’s         jurisdiction—a

prerequisite to a conclusion that the 2012 disposition order is

void ab initio. See Sams, 317 N.C. at 235, 345 S.E.2d at 182

(“An order is void ab initio only when it is issued by a court

that does not have jurisdiction.”); see also In re S.E.P., 184

N.C. App. 481, 487, 646 S.E.2d 617, 622 (2007) (holding that

because a juvenile petition was not verified, the trial court

did not obtain subject matter jurisdiction, and its orders were

void ab initio).

      Thus,     because    appellant’s     argument    amounts      only    to     an

allegation that the 2012 dispositional order was voidable, and

voidable orders may only be attacked directly, his appeal from

the March 2013 order is an impermissible collateral attack which

we must dismiss.

                                    Conclusion

      Because appellant’s appeal is an impermissible collateral

attack on the 2012 dispositional order, we dismiss.
                         -7-



DISMISSED.

Judges MCGEE and ELMORE concur.

Report per Rule 30(e).
