              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA14-542-2

                               Filed: 6 February 2018

Lee County, No. 09CRS001227

STATE OF NORTH CAROLINA

             v.

JUAN CARLOS BENITEZ, Defendant.


      Appeal by defendant from judgment entered 20 May 2013 by Judge Douglas B.

Sasser and order entered 21 January 2016 by Judge C. Winston Gilchrist in Superior

Court, Lee County. Heard in the Court of Appeals 6 February 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy
      Kunstling Irene, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
      Gomez, for defendant-appellant.


      STROUD, Judge.


      After the denial of his motions to suppress, defendant pled guilty to first degree

murder; he appealed and also filed a motion for appropriate relief with this Court. In

2014, this Court allowed defendant’s motion for appropriate relief, reversed the

denial of his motions to suppress, and vacated his judgment. The State petitioned

the Supreme Court for discretionary review, and ultimately that Court vacated this

Court’s opinion and ordered that defendant’s motion for appropriate relief be

remanded for consideration by the trial court. On remand, the trial court denied
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                                    Opinion of the Court



defendant’s motion for appropriate relief. Defendant now appeals the denial of his

motion for appropriate relief. On defendant’s appeal before us, because defendant

was a juvenile at the time of his confession and his uncle was his custodian as defined

by North Carolina General Statute § 7B-2101(b) at all relevant times, his attorney

did not provide ineffective assistance of counsel in failing to argue his rights under §

7B-2101(b), and his MAR was properly denied.

      Furthermore, during the remand, the Supreme Court specifically tolled the

time for appeal of the motion to suppress with instructions for this Court to hear such

appeal or terminate it, based upon the determination of defendant’s MAR. Because

defendant did not prevail with his MAR, we have also addressed his arguments

regarding denial of his motions to suppress. Defendant argues he did not make a

knowing and intelligent waiver of his rights during police interrogation. Because the

trial court failed to address key considerations in determining whether defendant

made a knowing and intelligent waiver, we remand the order denying defendant’s

motion to suppress.

                               I.      Procedural Background

      Because this appeal addresses the interrogation of defendant and his

attorney’s effectiveness as counsel, we will not repeat the factual details of

defendant’s first degree murder charge and conviction but will instead focus on the

procedural background of this case which led to this appeal. In 2007, defendant, age



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13, provided a signed statement to the Lee County Sheriff’s Office stating he had

“shot the lady as she was sleeping on the couch in the head.” In 2009, defendant was

indicted for first degree murder and was prosecuted as an adult.

      Although other evidence tended to show that defendant had shot the victim,

his signed statement was the most direct evidence of premeditation as an element of

first degree murder. Prior to his trial, defendant made separate motions to suppress

his statements based upon alleged violations of his right to counsel and his right to

remain silent and upon his claim he had not knowingly and voluntarily waived his

Miranda rights. In December of 2012, the trial court denied defendant’s motions to

suppress, and the trial court found that defendant’s uncle was present during the

questioning; the uncle was defendant’s custodian; an interpreter was provided; and

neither defendant nor his uncle “indicated any lack of understanding of what was

being said” when defendant agreed to waive his rights. In 2013, defendant pled guilty

to first degree murder but preserved his right to challenge the denial of his motions

to suppress.

      In 2014, defendant filed a motion for appropriate relief (“MAR”) with this Court

arguing he had been provided ineffective assistance of trial counsel because his

attorney did not challenge the admission of his confession because his uncle was not

his “parent, guardian, custodian, or attorney[,]” and therefore his rights under North

Carolina General Statute § 7B-2101(b) were violated as no appropriate adult had



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been present during his custodial interrogation. In an unpublished opinion, this

Court allowed defendant’s MAR, reversed the denial of defendant’s motions to

suppress, and vacated defendant’s judgment.

      The State petitioned for discretionary review, and our Supreme Court vacated

the Court of Appeal’s opinion and remanded the case to this Court for remand to the

trial court to conduct an evidentiary hearing on the MAR; the entire Supreme Court

order reads:

                      This case has come before the Court by way of the
               State’s Petition for Discretionary Review pursuant to
               N.C.G.S. § 7A–31.
                      Pursuant to N.C.G.S. § 15A–1418, the decision of the
               Court of Appeals is vacated and this Court now ORDERS
               this case remanded to the Court of Appeals for remand to
               the Superior Court, Lee County, for an evidentiary hearing
               to make findings of fact necessary to determine whether
               the trial counsel's actions fell below an objective standard
               of reasonableness, see State v. McHone, 348 N.C. 254, 499
               S.E.2d 761 (1998) (remanding a motion for appropriate
               relief to the trial court with instructions to conduct an
               evidentiary hearing), and, if so, whether defendant was
               prejudiced by any deficient performance by his trial
               counsel.
                      The time periods for perfecting or proceeding with
               the appeal are tolled. The Superior Court, Lee County, is
               ordered to transmit its order on the motion for appropriate
               relief within 120 days so that the Court of Appeals may
               proceed with the appeal or enter an order terminating the
               appeal, as appropriate.
                      By order of the Court in Conference, this 24th day of
               September, 2015.

State v. Benitez, 368 N.C. 350, 777 S.E.2d 60 (2015).



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      The trial court then held an evidentiary hearing on the MAR and entered an

order with these findings of fact:

             1.     Attorney Fred D. Webb of Sanford, North Carolina,
                    was duly appointed to represent the defendant upon
                    the defendant being charged with murder in
                    Juvenile Court in the District Court of Lee County
                    and continued to represent the defendant through
                    the Superior Court proceedings in Lee County
                    wherein the defendant entered a plea agreement as
                    is of record.

             ....

             4.     Defendant’s Uncle, Jeremias-Cruz, advised Mr.
                    Webb that the defendant was Mr. Cruz’s sister’s son,
                    and that by agreement with defendant’s mother, the
                    defendant had lived with him ever since the
                    defendant came to North Carolina from El Salvador;
                    for approximately 1 ½ years before the defendant
                    was arrested. Defendant had no parent, custodian
                    or guardian other than Jeremias Cruz living in the
                    United States.

             5.     Mr. Cruz provided the sole support for the
                    defendant, had provided the defendant with his own
                    room in Mr. Cruz’s house, provided food for the
                    defendant, provided clothing for the defendant,
                    provided medical care for the defendant, enrolled the
                    defendant in the Lee County school system and had
                    otherwise provided all the needs of a juvenile the
                    defendant’s age.

             6.     Attorney Webb had learned from the conferences
                    with Mr. Cruz and with the defendant that Mr. Cruz
                    had provided all the above referenced care for the
                    defendant and had been accepted as a guardian by
                    the Lee County School system to enroll the
                    defendant in school.


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7.     Attorney Webb had obtained documentation from
       the Lee County Schools and Lee County Health
       Department showing that Mr. Cruz had appeared
       before each of these entities and been accepted as
       the guardian of the defendant Juan C. Benitez.

8.     Mr. Cruz considered himself to have legal custody of
       the defendant since he had sole physical custody of
       the defendant by agreement with his sister and Mr.
       Cruz had advised others including Detective
       Brandon Wall on the day the defendant was arrested
       before the interview of defendant, that he was the
       defendant’s uncle, that the defendant lived with him
       . . ., that he was defendant’s legal guardian or
       custodian and Juan had lived with him for about a
       year and a half and Mr. Webb had seen this in
       discovery provided by the State.

9.     The defendant’s uncle Jeremias Cruz signed or was
       listed as a parent or guardian on numerous
       documents some of which are dated January 2006;
       those documents were obtained and received by
       Attorney Webb.

....

12.    After learning of the evidence of the relationship of
       Jeremias Cruz and the defendant, Attorney Webb
       had a member of his staff, early in his representation
       of the defendant, research the issue of who is a
       parent, guardian or custodian under NCGS 7B-
       2101, and Attorney Webb reviewed the cases of State
       v. Jones and State v. Oglesby as written by the Court
       of Appeals.

....

15.    Prior to the evidentiary hearing on defendant’s
       Motion to Suppress Defendant’s statement, attorney


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       Webb read the Supreme Court of North Carolina’s
       opinion in State v. Oglesby.

....

      18.   Attorney Webb, in the exercise of professional
judgment, formed the opinion that Oglesby as decided by
the Supreme Court was not inconsistent with the Court of
Appeals opinion in Jones in that the same factors were
discussed in determining if a person qualified as an
approved person under NCGS 7B-2101, those factors being
whether the person ever had custody of the juvenile,
whether the juvenile stayed with or lived with the person
for a considerable length of time, whether the person
signed school paperwork, fed and clothed the juvenile,
provided medical and other necessary care for the juvenile.

      19.    Based upon the case law as interpreted by
Attorney Webb and the facts of this case regarding the
Uncle Jeremias Cruz and the defendant, Attorney Webb
made the decision that Uncle Jeremias Crus would be the
appropriate person under 7B-2101 and believed his
interpretation of the law as it existed was correct. Attorney
Webb therefore did not identify or raise at the suppression
hearing any issues as to whether Jeremias Cruz was the
parent, custodian, or guardian of Defendant. On direct
appeal, the Court of Appeals determined that Jeremias
Cruz was not the “guardian” of the defendant.

       20.    Attorney Webb’s file does not contain any copy
of, nor any reference to, the Court of Appeals decision in
the case of In re M.L.T.H. Given the existence of Oglesby,
counsel was not under any duty to find the M.L.T.H.
opinion or the dicta contained in a footnote of that opinion
stating that Oglesby “imp[l]iedly” overruled Jones. The
decision in M.L.T.H. was filed in November, 2009, and did
not become final until 2010. . . .

      21.  . . . the evidence does not establish that
Attorney Webb read M.L.T.H. before the hearing on the


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             motion to suppress. The court finds as a fact that Attorney
             Webb was mistaken in his belief that he had reviewed
             M.L.T.H. prior to the suppression hearing. . . .

                    22.   At the time of the suppression hearing[,]
             Attorney Webb knew that Jeremias Cruz had assumed
             responsibility for the care and upbringing of the defendant.
             Attorney Webb conducted a preliminary review of the cases
             and the law relating to the issue of who could be a “parent,
             guardian or custodian” under the applicable statute,
             including the Supreme Court’s decision in Oglesby. These
             cases were understood by Attorney Webb, in the reasonable
             exercise of his best professional judgment, to support the
             conclusion, which was consistent with the realities of
             defendant’s actual living situation, that Jeremias Cruz was
             acting as defendant’s “guardian” within the meaning of
             N.C. Gen. Stat. 7B-2101. . . .

             ....

                   25.   Attorney Webb’s representation of defendant,
             viewed at the time of counsel’s representation, and not
             merely through hindsight, was objectively reasonable.

The trial court then concluded that Attorney Webb did not provide ineffective

assistance of counsel as counsel’s performance was not deficient nor was defendant

prejudiced. The trial court denied defendant’s MAR; it is from this order and the

denial of defendant’s motion to suppress that defendant’s appeal is now before us.

                                    II.     MAR

      Defendant’s argument on appeal is that the trial court erred when it denied

his MAR because he did not receive ineffective assistance from his counsel when




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Attorney Webb failed to challenge his confession on the ground that an appropriate

adult was not present during his interrogation.

                   When considering rulings on motions for
            appropriate relief, we review the trial court’s order to
            determine whether the findings of fact are supported by
            evidence, whether the findings of fact support the
            conclusions of law, and whether the conclusions of law
            support the order entered by the trial court. However, if
            the issues raised by Defendant’s challenge to the trial
            court’s decision to deny his motion for appropriate relief are
            primarily legal rather than factual in nature, we will
            essentially use a de novo standard of review in evaluating
            Defendant’s challenges to the court’s order.

State v. Marino, 229 N.C. App. 130, 139–40, 747 S.E.2d 633, 640 (2013) (citations,

quotation marks, and brackets omitted).

      Defendant’s MAR was based upon ineffective assistance of counsel, and thus

we must also consider that standard.

            To obtain relief for ineffective assistance of counsel, the
            defendant must demonstrate initially that his counsel’s
            conduct fell below an objective standard of reasonableness.
            The defendant’s burden of proof requires the following:
                  First, the defendant must show that counsel’s
                  performance was deficient. This requires
                  showing that counsel made errors so serious
                  that counsel was not functioning as the
                  counsel guaranteed the defendant by the
                  Sixth Amendment. Second, the defendant
                  must show that the deficient performance
                  prejudiced the defense. This requires showing
                  that counsel’s errors were so serious as to
                  deprive the defendant of a fair trial, a trial
                  whose result is reliable.
            The defendant must show that there is a reasonable


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                probability that, but for counsel’s unprofessional errors,
                the result of the proceeding would have been different. A
                reasonable probability is a probability sufficient to
                undermine confidence in the outcome.

State v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (2002) (citations and

quotation marks omitted).

        Defendant does not challenge the trial court’s findings of fact regarding his

relationship with his uncle but only its conclusions of law regarding ineffective

assistance of counsel.1            We must first consider whether Attorney Webb’s

representation “was deficient” in that he “made errors so serious that counsel was not

functioning as the counsel guaranteed the defendant by the Sixth Amendment.”

Quick, 152 N.C. App. at 222, 566 S.E.2d at 737.                       At the time of defendant’s

interrogation in 2007, North Carolina General Statute § 7B-2101(b) provided that

                [w]hen the juvenile is less than 14 years of age, no in-
                custody admission or confession resulting from
                interrogation may be admitted into evidence unless the
                confession or admission was made in the presence of the
                juvenile’s parent, guardian, custodian, or attorney. If an
                attorney is not present, the parent, guardian, or custodian
                as well as the juvenile must be advised of the juvenile’s

        1 Defendant’s brief does mention three findings of fact made in the order denying defendant’s
motion to suppress, regarding whether defendant knowingly and intelligently waived his rights, and
we will address those findings of fact as necessary in the portion of this opinion addressing the motion
to suppress. Defendant then extends his argument regarding the order denying his motion to suppress
by claiming that order was not sufficient, and thus on remand the trial court should have made more
factual findings addressing the insufficiency of that order. But the trial court did not have jurisdiction
on remand to reconsider defendant’s motion to suppress and any “insufficienc[ies]” in it. The Supreme
Court specifically remanded to the trial court for consideration of the MAR. The Supreme Court also
tolled the time of appeal of the motion to suppress based upon the determination made in the MAR.
Thus, ultimately, the trial court only had jurisdiction to address the MAR while this Court has both
the jurisdiction to address the original appeal of the motion to suppress and the MAR now appealed.

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             rights as set out in subsection (a) of this section; however,
             a parent, guardian, or custodian may not waive any right
             on behalf of the juvenile.

N.C. Gen. Stat. § 7B-2101(b) (2007).

      Defendant’s uncle was present when he was advised of his rights and

interrogated. It is uncontested defendant’s uncle was not his parent nor was he an

attorney. The trial court and the briefs before us all focus on the term “guardian[,]”

and it is uncontested that defendant’s uncle was never appointed as defendant’s

guardian. But we instead will address the determinative term “custodian.”

      In 2007, the year of the crime and defendant’s statements to law enforcement

officers, North Carolina General Statute § 7B-101(8) defined a “[c]ustodian” as “[t]he

person or agency that has been awarded legal custody of a juvenile by a court or a

person, other than parents or legal guardian, who has assumed the status and

obligation of a parent without being awarded the legal custody of a juvenile by a court.”

See N.C. Gen. Stat. § 7B-101(8) (2007) (emphasis added). Defendant was indicted in

2009, when North Carolina General Statute § 7B-101(8) remained the same as it was

in 2007. See N.C. Gen. Stat. § 7B-101(8) (2009). The trial court heard defendant’s

motions to suppress in June and October of 2012, when the law was still unchanged.

See N.C. Gen. Stat. § 7B-101(8) (2011). But shortly after defendant’s guilty plea and

judgment, the law changed:

             Session Laws 2013-129, s. 1, effective October 1, 2013, . . .
             deleted ‘court or a person, other than parents or legal


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               guardian, who has assumed the status and obligation of a
               parent without being awarded the legal custody of a
               juvenile by a’ preceding ‘court’ in subdivision (8) . . . . For
               applicability, see editor’s note.

N.C. Gen. Stat. § 7B-101, Effects of Amendments (2013). The Editor’s Note of North

Carolina General Statute § 7B-101 provides that “Session Laws 2013-129, s. 41, made

the amendment to this section by Session Laws 2013-129, s. 1, applicable to actions

filed or pending on or after October 1, 2013.” N.C. Gen. Stat. § 7B-101, Editor’s Note

(2013) (emphasis added).

       Defendant’s action was “filed” prior to 1 October 2013, so the question is when

it ceased to be “pending.” In our research we have not found a simple definition of

when a criminal action is “pending[.]” Defendant’s questioning by law enforcement,

which is the subject of this appeal, occurred in 2007, but the indictment was filed in

August of 2009.2 Had defendant’s case proceeded to trial in 2013, instead of being

resolved by his guilty plea, there is a possibility that defendant’s case could still have

been “pending” in October of 2013. But defendant did plead guilty, so his 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


       2 Defendant was initially under the jurisdiction of the District Court as a juvenile before the
case was transferred to Superior Court pursuant North Carolina General Statute § 7B-2203 on 22 July
2009 in order to try him as an adult.

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charges are not dismissed, the judgment concludes the “pending” criminal action and

after that, an appeal or review process may begin. See generally State v. Ward, 46

N.C. App. 200, 203, 264 S.E.2d 737, 739 (1980) (“Ordinarily in North Carolina an

appeal will only lie from a final judgment.”). While a criminal defendant has no

obligation to appeal or challenge his judgment, he will have to see his pending charges

through to judgment. See generally id. 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 North Carolina General Statute § 7B-101(8). If we concluded any later point in

time, some actions may never cease to be “pending;” there would be no true finality

to criminal cases.

      Defendant’s judgment was entered in May of 2013. Defendant’s action was no

longer “pending” in October of 2013 and the amendment enacted by Session Laws

2013-129, s. 1 is not applicable to defendant. See N.C. Gen. Stat. § 7B-101, Editor’s

Note. Defendant’s case is controlled by the definition of “custodian” as it existed from

2007 until the change in 2013. And particularly since defendant presents an issue of

ineffective assistance of counsel, we cannot expect an attorney to foresee future

changes to all statutes which may relate to a defendant’s case. The attorney can only

know and argue the law as it exists at that time. Here, the relevant law was the

same at the time of the questioning in 2007, inception of the Superior Court



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prosecution in 2009, hearing on the defendant’s motions to suppress in 2012, and

entry of judgment in 2013.

      In the first appeal, this Court determined in an unpublished opinion that

defendant’s uncle was not his “custodian” citing “State v. Jones, 147 N.C. App. 527,

534, 556 S.E.2d 647, 649 (2001) (holding that aunt was not ‘custodian’).” State v.

Benitez, 238 N.C. App. 363, 768 S.E.2d 201 (Dec. 31, 2014) (No. COA14-542)

(unpublished) (“Benitez I”); vacated, 368 N.C. 350, 777 S.E.2d 60 (2015).          The

reasoning in Benitez I implies that an aunt could never be a custodian simply by being

an “aunt,” see id., but nothing in the definition of custodian precludes an otherwise

qualifying aunt from being a “custodian.” See N.C. Gen. Stat. § 7B-101(8) (2007).

And while State v. Jones cursorily stated that the defendant’s aunt was not his

“custodian,” the entire analysis was based upon the term “guardian.” See Jones, 147

N.C. App. 527, 556 S.E.2d 644 (2001). Jones did not address whether the aunt could

have been a “custodian” under the 2007 definition. See id; see also N.C. Gen. Stat. §

7B-101(8) (2007). Furthermore, in In re M.L.T.H., this Court noted,

             The North Carolina Supreme Court in State v. Oglesby
             expressly held that a person in the position of a guardian
             could not be treated as a guardian for purposes of N.C. Gen.
             Stat. § 7B–2101, impliedly overruling State v. Jones. State
             v. Oglesby, 361 N.C. 550, 555–56, 648 S.E.2d 819, 822
             (2007).

In re M.L.T.H., 200 N.C. App. 476, 487 n.6, 685 S.E.2d 117, 124, n.6 (2009). Therefore,

because Benitez I was vacated, and the case it relied upon, Jones, has been “impliedly


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overrul[ed],” see id., we are neither bound by nor persuaded by those cases to

determine whether defendant’s uncle was his “custodian.” We thus turn to the case

law which addresses the definition of “custodian” as it existed in the time period

relevant to defendant, when defendant claims his counsel should have moved to

suppress based upon North Carolina General Statute § 7B-2101(b).

      In In re A.P., this Court explained,

                    N.C. Gen. Stat. § 7B–101(8) (2003) defines a
             custodian as the person or agency that has been awarded
             legal custody of a juvenile by a court or a person, other than
             parents or legal guardian, who has assumed the status and
             obligation of a parent without being awarded the legal
             custody of a juvenile by a court. There is no question that
             respondent has not been awarded legal custody of the
             children. However, the analysis must focus on whether
             respondent qualifies as one who has assumed the status and
             obligation of a parent without being awarded the legal
             custody of the children.

165 N.C. App. 841, 843, 600 S.E.2d 9, 11 (2004) (emphasis added) (quotation marks

and brackets omitted). The paternal step-grandfather of the children in A.P. claimed

to be a custodian because “(1) . . . he and his wife were listed on the petitions as

parents, guardian, custodian, or caretaker and (2) that he was served with a petition

and summons regarding the alleged neglect of each child.” Id. (quotation marks

omitted).

      This Court disagreed and undertook a thorough explanation of § 7B-101(8),

which we will quote at length because the facts of the potential custodian’s



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relationship with and care of the juvenile are an important part of the court’s

analysis:

            [W]e do not find that he was the custodian of the children
            simply because he and his wife were listed on the petitions.
            Rather, a juvenile petition sets forth the names of persons
            who fit within any one of four categories, including parent,
            guardian, custodian, and caretaker. A petition also
            designates the relationship or title each listed person has
            with respect to the child or children involved. In the
            petitions at issue, J.P. and J.P. were named as mother and
            father. B.H. and respondent were also named in the
            petitions. However, they were designated simply as
            paternal grandmother and paternal step-grandfather. The
            fact that respondent and his wife were not deemed
            custodians in the petitions is evidence indicating they were
            listed simply because they fulfilled the role of caretakers.
            Further evidence that respondent was merely a caretaker
            is the fact that respondent’s attorney submitted a report to
            the trial court on 22 January 2003 on behalf of respondent
            titled Report to the Court on behalf of Caretaker
            Respondent. This report stated that Respondent and his
            wife have had A.P. in their home often throughout her life
            and have an established relationship with A.P. as primary
            caretakers. If, in fact, respondent qualified only as a
            caretaker, N.C. Gen. Stat. § 7B-1002 does not grant him a
            right to appeal.
                    In further support of respondent’s claim to being
            custodian of the children, he stressed the 12 September
            2002 report of the guardian ad litem which stated that the
            children are in custody of their paternal Grandmother and
            paternal Grand Step-father. Again, we do not find this
            argument persuasive. This report referred to the children
            being in the custody of their grandparents and was simply
            the guardian ad litem’s way of specifying where the
            children were physically located. The use of the term
            custody in the guardian ad litem’s report does not establish
            respondent’s legal status with respect to the children.
                    We note that over time the definition of custodian


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has undergone changes. Under N.C. Gen. Stat. § 7A–278(7)
(1969), custodian was defined as a person or agency that
has been awarded legal custody of a child by a court, or a
person other than parents or legal guardian who stands in
loco parentis to a child. Subsequently, the General
Assembly narrowed the definition and limited custodian to
only the person or agency that has been awarded legal
custody of a juvenile by a court. However, the definition
was again changed, effective 27 October 1998, and
broadened to include, in addition to one who had been
awarded legal custody, a person, other than parents or legal
guardian, who has assumed the status and obligation of a
parent without being awarded the legal custody of a
juvenile by a court. It is this version of the definition that
is presently in effect. See N.C. Gen. Stat. § 7B–101(8).
       Cases interpreting N.C. Gen. Stat. § 7A–278(7) have
stated that the term in loco parentis means in the place of
a parent, and a person in loco parentis may be defined as
one who has assumed the status and obligations of a parent
without a formal adoption. Thus, the current definition of
custodian and the 1969 version essentially have the same
meaning.
       The concept of in loco parentis has been addressed
in the context of whether parental immunity exists in tort
actions. For example, Liner v. Brown, 117 N.C. App. 44, 449
S.E.2d 905 (1994), disc. review denied and cert. denied, 340
N.C. 113, 456 S.E.2d 315 (1995) involved the issue of
whether the defendants stood in loco parentis to a child
who drowned in their swimming pool. In that case, our
Court analyzed the meaning of in loco parentis and stated
that a person does not stand in loco parentis from the mere
placing of a child in the temporary care of other persons by
a parent or guardian of such child. Rather, this relationship
is established only when the person with whom the child is
placed intends to assume the status of a parent—by taking
on the obligations incidental to the parental relationship,
particularly that of support and maintenance.
       In the case before us, A.P. was initially placed with
respondent and B.H. around 11 March 2002 after A.P.’s
mother reported that she had been forced out of the home


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by A.P.’s father. About a month later, both parents signed
case plans agreeing to participate in parenting classes.
A.P.’s father also agreed to participate in substance abuse
classes and to maintain stable housing and employment. In
addition, A.P.’s mother agreed to follow up with therapy
and maintain stable housing and employment. The fact
that both parents signed a case plan and made
commitments to participate in programs is evidence that
they did not intend for A.P. to remain with respondent and
B.H. indefinitely. Rather, A.P.’s placement was viewed as
more of a temporary arrangement.
       When S.P. was born in May 2002, she remained with
her parents because DSS thought the parents had made
progress. However, the parents began having problems,
and on 13 August 2002, respondent and B.H. signed a
kinship agreement in which they agreed to provide
placement for S.P. In orders entered 23 October 2002 and
18 November 2002, the trial court ordered that temporary
custody of the children remain with DSS. In addition, DSS
was given discretion for placement of the children,
including, but not limited to the home of respondent and
B.H. After allegations of sexual abuse, the children were
moved from respondent’s home to foster care on 12
November 2002.
       The evidence does not indicate that respondent and
B.H. assumed the role and status of parents to the children.
First, the children spent only a relatively short amount of
time with respondent and B.H. before they were moved to
foster care. The evidence shows that A.P. lived with
respondent and B.H. for approximately eight months while
S.P. lived with them for only about three months. Second,
the children were not simply abandoned by their parents.
Rather, when A.P. was first placed with respondent and
B.H., her parents made efforts to improve parenting skills,
to maintain a suitable environment for her, and to restore
the parent-child relationship. Similarly, the parents made
efforts regarding S.P. until the kinship agreement was
signed. Thus, we conclude that the children were merely
placed in the temporary care of respondent and B.H. Under
Liner, such placement does not warrant the conclusion that


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                                  Opinion of the Court



             respondent was standing in loco parentis to the children.

165 N.C. App. at 844–46, 600 S.E.2d at 11–13 (emphasis added) (citations, quotation

marks, and brackets omitted).

       In In re T.B., this Court “determine[d] whether Respondent acted as custodian

by assuming the status and obligation of a parent without being awarded the legal

custody of a juvenile by a court. N.C. Gen. Stat. § 7B–101(8).” In re T.B., 200 N.C.

App. 739, 744, 685 S.E.2d 529, 533 (2009) (quotation marks and brackets omitted).

This Court explicitly relied on A.P., and stated that its determination

             involves deciding whether a person has acted in loco
             parentis to the child in question. As this Court has stated:
                    A person does not stand in loco parentis from
                    the mere placing of a child in the temporary
                    care of other persons by a parent or guardian
                    of such child. This relationship is established
                    only when the person with whom the child is
                    placed intends to assume the status of a
                    parent—by taking on the obligations
                    incidental to the parental relationship,
                    particularly that of support and maintenance.
                    In In re A.P., this Court held that the Respondent
             paternal step-grandfather was not an appropriate party to
             appeal from a permanency planning order. Several factors
             were noted: (1) the fact that the step-grandfather’s name
             was listed on the juvenile petition as a parent, guardian,
             custodian, or caretaker was not dispositive; (2) the child’s
             parents remained involved or were attempting to remain
             involved in the child’s life, meaning that the placement
             with the step-grandfather was considered temporary; (3)
             the child was placed with the step-grandfather for only one
             month before the child’s parents signed case plans with
             DSS, and the child only spent a total of eight months in the
             Respondent’s care; (4) although the Respondent signed a


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kinship agreement several months after assuming care of
the child, temporary custody remained with DSS; and (5)
the step-grandfather was not explicitly made a party to any
custody action beyond being listed on the juvenile petition.
Despite the fact that this Court in In re A.P. acknowledged
that the Respondent was a caretaker, and in fact the
primary caretaker, of the child, this Court determined that
the temporary nature of the care meant that the Respondent
did not act in loco parentis to the child. The appeal was
dismissed for lack of standing.
        In the instant case, DSS and the GAL argue that
Respondent’s unauthorized decision to return T.B. to his
mother demonstrates her lack of intent to assume the
status and obligation of a parent. They further argue that
T.B. was out of Respondent’s care for at least six months
while these proceedings advanced, and that Respondent
failed to attend the disposition hearing. Petitioner
contends these facts show that Respondent was merely a
caretaker and not interested in assuming a parental role
for T.B. After careful review, we conclude that the record
is insufficient to establish whether Respondent was a
custodian such that she has standing to pursue this appeal.
        There is little information provided regarding the
extent of and the periods that Respondent provided care for
T.B. It appears that T.B. may have lived with Respondent
from some time in 2005 for an unknown duration, and that
Respondent had at least some responsibility for the child.
T.B. also spent a great deal of time with his paternal
grandparents, the Fords. The GAL report dated 29
January 2009 stated that the Fords shared parenting
responsibility with Respondent. GAL Jean Barbour
testified at the disposition hearing that T.B. lived with
Respondent and with the Fords, and that they shared in
the caretaking of him. When asked whether Respondent
was T.B.’s primary caretaker and whether T.B. resided
principally with Respondent, Barbour responded, well, I
don’t know the answer to that. He resided with both of
them. They shared caretaking responsibility of him. There
is no evidence of Respondent’s level of support and
maintenance in caring for T.B., or whether it was


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                                 Opinion of the Court



            Respondent or the Fords who took T.B. to medical
            appointments or provided for other needs, etc.
                   Unlike In re A.[P]., there is no evidence about any
            involvement that either of T.B.’s parents might have had
            with T.B. during the period he lived with Respondent.
            T.B.’s mother did not sign a case plan until after T.B. was
            removed from Respondent’s care in the autumn of 2008. It
            is also unclear the level of involvement by DSS during the
            time T.B. lived with Respondent and whether any steps
            were taken to attempt to reunify T.B. with either of his
            parents. We conclude that there is no evidence that would
            clarify whether T.B's living arrangement with Respondent
            was intended to be temporary or permanent or its duration.
                   In In re A.P., this Court determined that the step-
            grandfather was merely a caretaker and not a custodian of
            the minor child. In the case sub judice, it appears that
            Respondent’s care and supervision of T.B. was more
            involved than that of the Respondent in In re A.P.
            However, Respondent has failed to demonstrate to this
            Court that she had been awarded legal custody of T.B., that
            she was his custodian, and the duration of either status.
            Therefore, given the absence of court orders establishing
            Respondent’s legal status with respect to T.B., and the lack
            of evidence presented as to Respondent’s level of care and
            support of T.B. or of the participation of T.B.’s parents and
            DSS in T.B.’s life, and Respondent’s return of T.B. to his
            mother, we are unable to conclude that Respondent’s
            actions are consistent with one who assumes the status and
            obligation of a parent such that she was a custodian for
            purposes of N.C. Gen. Stat. § 7B–1002(4).
                   ....
                   We conclude that Respondent has failed to meet her
            burden demonstrating that she has standing to pursue this
            appeal as a custodian of the child and that she was the non-
            prevailing party. Accordingly, we dismiss the appeal.

Id. at 744–46, 685 S.E.2d at 533–34 (emphasis added) (citations, quotation marks,

and brackets omitted).



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      We consider whether defendant’s uncle intended “to assume the status of a

parent—by taking on the obligations incidental to the parental relationship,

particularly that of support and maintenance.” In re A.P., 165 N.C. App. at 845, 600

S.E.2d at 12. As directed by the Supreme Court on remand, the trial court considered

evidence on defendant’s relationship with his uncle and his uncle’s care for defendant.

The trial court made these uncontested findings of fact:

             4.     Defendant’s Uncle, Jeremias Cruz, advised Mr.
                    Webb that the defendant was Mr. Cruz’s sister’s son,
                    and that by agreement with defendant’s mother, the
                    defendant had lived with him ever since the
                    defendant came to North Carolina from El Salvador;
                    for approximately 1 ½ years before the defendant
                    was arrested. Defendant has no parent, custodian
                    or guardian other than Jeremias Cruz living in the
                    United States.

             5.     Mr. Cruz provided the sole support for the
                    defendant, had provided the defendant with his own
                    room in Mr. Cruz’s house, provided food for the
                    defendant, provided clothing for the defendant,
                    provided medical care for the defendant, enrolled the
                    defendant in the Lee County School system and had
                    otherwise provided all the needs of a juvenile the
                    defendant’s age.

             6.     Attorney Webb had learned from the conferences
                    with Mr. Cruz and with the defendant that Mr. Cruz
                    had provided all the above referenced care for the
                    defendant and had been accepted as a guardian by
                    the Lee County School system to enroll the
                    defendant in school.

             7.     Attorney Webb had obtained documentation from
                    the Lee County School and Lee County Health


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                                  Opinion of the Court



                   Department showing that Mr. Cruz had appeared
                   before each of these entities and been accepted as
                   the guardian of the defendant Juan C. Benitez.

             8.    Mr. Cruz considered himself to have legal custody of
                   the defendant since he had sole physical custody of
                   the defendant by agreement with his sister and Mr.
                   Cruz had advised others including Detective
                   Brandon Wall on the day the defendant was arrested
                   before the interview of defendant, that he was the
                   defendant’s uncle, that the defendant lived with him
                   . . ., that he was defendant’s legal guardian or
                   custodian and Juan had lived with him for about a
                   year and a half and Mr. Webb had seen this in
                   discovery provided by the State.

             9.    The defendant’s uncle Jeremias Cruz signed or was
                   listed as a parent or guardian on numerous
                   documents some of which are dated January 2006;
                   those documents were obtained and received by
                   Attorney Webb.

             10.   Jeremias Cruz had taken the defendant to the Lee
                   County Health Department for vaccinations and
                   Attorney Webb had reviewed the documents
                   confirming that Jeremias Cruz was accepted as
                   guardian by the Lee County Health Department.

             11.   Jeremias Cruz was the sole support for the
                   defendant and the only person that the defendant
                   had resided with since he arrived in North Carolina,
                   and Attorney Webb had confirmed this through
                   interviews with the uncle and the defendant.

      The findings of fact demonstrate that defendant’s uncle intended to and did

“assume the status of a parent—by taking on the obligations incidental to the

parental relationship, particularly that of support and maintenance[,]” id., and that



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                                     Opinion of the Court



the arrangement with defendant’s uncle was not temporary. See generally In re T.B.,

200 N.C. App. at 745, 685 S.E.2d at 533. Defendant’s uncle acted in loco parentis to

defendant, see generally id. at 744-46, 685 S.E.2d at 533-34; In re A.P., 165 N.C. App.

at 844–46, 600 S.E.2d at 11–13; he was defendant’s custodian, see N.C. Gen. Stat. §

7B-101(8), so defendant’s rights under North Carolina General Statute § 7B-2101(b)

were not violated. See N.C. Gen. Stat. § 7B-2101(b). Therefore, Attorney Webb did

not provide ineffective assistance of counsel in failing to move to suppress

defendant’s statement based upon North Carolina General Statute § 7B-2101(b), and

thus defendant’s MAR was properly denied. Defendant’s arguments are overruled.

                              III.    Motion to Suppress

      Because defendant did not prevail on his current appeal of his MAR and the

Supreme Court left the jurisdiction of this Court open to consider defendant’s

original appeal of his motion to suppress, we now turn to that appeal. We also turn

back to defendant’s 2014 brief and his reply brief for the basis of his argument

regarding the denial of his motion to suppress. Defendant did file a supplemental

brief and a supplemental reply brief in 2016, but the focus of those briefs is the

second appeal regarding the MAR.

      Defendant made three arguments in his 2014 briefs in the appeal of his motion

to suppress.   Most of defendant’s brief was devoted to his primary argument

regarding violation of his rights under North Carolina General Statute § 7B-2101(b),



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                                   Opinion of the Court



but we have already addressed that argument in relation to the trial court’s order

on remand for the MAR. Defendant’s second argument was that “the trial court

erred by denying . . . [defendant’s] motion to suppress his statement at the Lee

County Sheriff’s Department because his waiver of right was not knowing and

intelligent.” (Original in all caps.) Defendant’s third argument is related to the

second: in the alternative, he contends that “the trial court erred by failing to make

findings of fact to resolve material conflicts in the evidence” regarding whether

defendant “knowingly and intelligently waived his rights.” (Original in all caps.)

Since both of defendant’s remaining arguments address the trial court’s findings of

fact regarding knowing and voluntary waiver and the sufficiency of the evidence to

support those findings, we will address them together.

      To determine if a defendant has “knowingly and voluntarily” waived his right

to remain silent, the trial court must consider the totality of the circumstances of the

interrogation, and for juveniles, this analysis includes the “juvenile’s age,

experience, education, background, and intelligence, and [evaluation] into whether

he has the capacity to understand the warnings given him, the nature of his Fifth

Amendment rights, and the consequences of waiving those rights”:

             [T]he determination whether statements obtained during
             custodial interrogation are admissible against the accused
             is to be made upon an inquiry into the totality of the
             circumstances surrounding the interrogation, to ascertain
             whether the accused in fact knowingly and voluntarily
             decided to forgo his rights to remain silent and to have the


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                                  Opinion of the Court



             assistance of counsel.
                    This totality-of-the-circumstances approach is
             adequate to determine whether there has been a waiver
             even where interrogation of juveniles is involved. We
             discern no persuasive reasons why any other approach is
             required where the question is whether a juvenile has
             waived his rights, as opposed to whether an adult has done
             so. The totality approach permits—indeed, it mandates—
             inquiry into all the circumstances surrounding the
             interrogation. This includes evaluation of the juvenile’s
             age, experience, education, background, and intelligence,
             and into whether he has the capacity to understand the
             warnings given him, the nature of his Fifth Amendment
             rights, and the consequences of waiving those rights.

Fare v. Michael C., 442 U.S. 707, 724–25, 61 L. Ed. 2d 197, 212 (1979) (citations and

quotation marks). Defendant argues that the trial court failed to make sufficient

findings of fact to address the factors required by the “totality-of-the-circumstances

approach” mandated by the United States Supreme Court. Id. at 725, 61 L. Ed. 2d

at 212. This approach requires “inquiry into all of the circumstances surrounding

the interrogation” and “evaluation of the juvenile’s age, experience, education,

background, and intelligence, and into whether he has the capacity to understand

the warnings given to him, the nature of his Fifth Amendment rights, and the

consequences of waiving these rights.” Id.

      Furthermore,

             A child’s age is far more than a chronological fact. It is a
             fact that generates commonsense conclusions about
             behavior and perception. Such conclusions apply broadly
             to children as a class. And, they are self-evident to anyone
             who was a child once himself, including any police officer


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                                   Opinion of the Court



             or judge.
                    Time and again, this Court has drawn these
             commonsense conclusions for itself. We have observed that
             children generally are less mature and responsible than
             adults; that they often lack the experience, perspective,
             and judgment to recognize and avoid choices that could be
             detrimental to them; that they are more vulnerable or
             susceptible to outside pressures than adults. Addressing
             the specific context of police interrogation, we have
             observed that events that would leave a man cold and
             unimpressed can overawe and overwhelm a lad in his early
             teens. Describing no one child in particular, these
             observations restate what any parent knows—indeed,
             what any person knows—about children generally.

J.D.B. v. North Carolina, 564 U.S. 261, 272–73, 180 L. Ed. 2d 310, 323-24 (2011)

(citations, quotation marks, and ellipses omitted).

      Defendant does not challenge any of the trial court’s findings of fact in the

order denying his motion to suppress, so all of its findings are binding on appeal. See

State v. Osterhoudt, 222 N.C. App. 620, 626, 731 S.E.2d 454, 458 (2012) (“Any

unchallenged findings of fact are deemed to be supported by competent evidence and

are binding on appeal.” (citation and quotation marks omitted)). As to binding

findings of fact, we must note at the outset that defendant’s competency to stand

trial was an issue in this case; ultimately, in 2012, the trial court entered an order

determining defendant was competent to stand trial.           In addition, all of the

testimony and evidence from the competency hearing was also admitted for purposes

of the hearing on the motion to suppress which is at issue in this appeal.         The

competency order found:


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                                         Opinion of the Court



               3.      That the Defendant does suffer from a mental illness
                       or defect however there is insufficient evidence with
                       respect to the requirement of adaptive functioning to
                       determine the exact nature of that mental illness or
                       defect as regard to those prongs of the test for mental
                       retardation.

               4.      The Court further finds that based upon testimony
                       of Brian David, a supervisor at the Richmond
                       Detention Center that the Defendant gets along well
                       with the other inmates, communicates well, and
                       serves as a Trustee at the facility.

               5.      That the Defendant has shown the ability to respond
                       in a reasonable and rational manner to questions
                       regarding the proceedings, and the Defendant[’]s
                       situation, and the ability to assist defense counsel.

       At the time of the competency order, defendant would have been 18 years old

and thus an adult, but he was 13 at the time of the interrogation, so the

determination of defendant’s competency has little weight in the analysis of

defendant’s knowing and intelligent waiver at age 13.3 So the finding that defendant

“suffer[s] from a mental illness or defect” but does not meet the “test for mental

retardation” is a relevant finding of fact which we cannot ignore when reviewing the


       3  Defendant devotes a substantial part of his argument to the background of his competency
evaluation leading up to the hearing and order regarding his competency to stand trial, but we will
not address this in detail. The competency order was not appealed and in the suppression order on
appeal, the trial court was considering a different question. It does not appear the trial court heavily
relied on the competency order in its order denying defendant’s motion to suppress, but even if it did
rely in part on the competency order, neither order addressed defendant’s “experience, education,
background, and intelligence, and into whether he has the capacity to understand the warnings given
to him, the nature of his Fifth Amendment rights, and the consequences of waiving these rights” at
the time of the interrogation when he was 13. Fare, 442 U.S. at 725, 61 L. Ed. 2d at 212.




                                                - 28 -
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denial of defendant’s motion to suppress based upon a knowing and intelligent waiver

of his rights.4

       Based upon the record and the extensive evaluations of defendant, it appears

defendant’s “mental illness or defect” existed since before defendant was age 18 and

the “mental illness or defect” is relevant to any consideration of his “experience,

education, background, and intelligence, and . . . whether he has the capacity to

understand the warnings given to him, the nature of his Fifth Amendment rights,

and the consequences of waiving these rights.” Fare, 442 U.S. at 725, 61 L. Ed. 2d at

212. The competency order’s finding did not identify the “mental illness or defect” or

describe its impact upon defendant’s abilities or understanding but seems only to

have determined that defendant did not meet “the test for mental retardation.”

       Much of the order denying defendant’s motion to suppress is devoted to law

enforcement’s initial encounters with defendant, leading up to his “transfer” to the

Sheriff’s Office. As to the interrogation, the order then finds:



       4  To be accurate we have used the terminology as used in the record of this case, but we note
that the terminology used by mental health professionals for mental retardation has changed since
the 2012 order was entered. The United State Supreme Court noted in 2014 that “[p]revious opinions
of this Court have employed the term “mental retardation.” This opinion uses the term “intellectual
disability” to describe the identical phenomenon. See Rosa's Law, 124 Stat. 2643 (changing entries in
the U.S. Code from “mental retardation” to “intellectual disability”); Schalock et al., The Renaming of
Mental Retardation: Understanding the Change to the Term Intellectual Disability, 45 Intellectual &
Developmental Disabilities 116 (2007). This change in terminology is approved and used in the latest
edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts used by
psychiatrists and other experts;” the manual is often referred to by its initials “DSM,” followed by its
edition number, e.g., “DSM–5.” See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 33 (5th ed. 2013).” Hall v. Florida, 572 U.S. ___, ____, 188 L. Ed. 2d 1007,
1014 (2014).

                                                - 29 -
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12.   Lee County Detective Clint Babb met with
      Defendant’s Uncle Jeremiah Cruz who was the
      Defendant’s custodian, the Defendant, and Spanish
      interpreter Celinda Carney at the Lee County
      Sheriff’s Office.

13.   The Defendant who was 13 years old at the time was
      duly advised of his juvenile rights in the presence of
      his uncle and the juvenile rights were interpreted by
      Celinda Carney. Celinda Carney was retained by
      the Lee County Sheriff’s Office to assist them with
      interpreting in this matter. Celinda Carney had
      never interpreted in a criminal matter before.

14.   Detective Babb and Ms. Carney testified the
      Defendant understood all questions asked and
      Defendant responded appropriately to all questions.

15.   The Defendant acknowledged he understood each
      right read to him and initialed each one to indicate
      he understood each item as shown on the rights form
      admitted to evidence.

16.   The Defendant agreed to waive his rights and signed
      the waiver indicating same. Neither Defendant nor
      [hi]s uncle at anytime indicated any lack of
      understanding of what was being said.

17.   The Defendant began responding to questions and at
      some point advised Detective Babb through the
      interpreter Ms. Carney that he would tell Ms.
      Carney what happened but not Detective Babb.

18.   Detective Babb advised Ms. Carney to tell the
      Defendant whatever he told Ms. Carney she was
      going to tell Detective Babb and Ms. Carney did so
      and the Defendant agreed to tell her anyway.
      Detective Babb left the interview room leaving the
      Defendant with Ms. Carney.



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                                  Opinion of the Court



             19.   Defendant told Ms. Carney the information
                   contained in his written signed statement after
                   Detective Babb left the room and she relayed same
                   to Detective Babb as she indicated she would.

             20.   Detective Babb went over what the Defendant told
                   Ms. Carney with the Defendant and Defendant
                   agreed that it was correct.

             21.   The Defendant told the same story again in the
                   computer room, Defendant was read the statement
                   again from the computer screen and Ms. Carney
                   read the statement to the Defendant in printed form,
                   and the defendant acknowledged the statement as
                   accurate and signed it, and the Defendant’s uncle
                   was present with him throughout the process.

             22.   Each witness indicated that the Defendant was
                   never threatened, coerced or otherwise harassed and
                   all conversations were done in a conversational tone
                   without yelling.

             23.   None of the witnesses in the presence of the
                   Defendant from the point of contact with the
                   Defendant saw any signs of the Defendant being
                   confused or otherwise not understanding what was
                   being asked or instructed.

The findings of fact in the motion to suppress do address defendant’s age and “the

circumstances surrounding the interrogation[,]” but not defendant’s “experience,

education, background, and intelligence” or “whether he has the capacity to

understand the warnings given him, the nature of his Fifth Amendment rights, and

the consequences of waiving those rights.” Id.

      The absence of findings regarding defendant’s “experience, education,



                                         - 31 -
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                                  Opinion of the Court



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[,]” id., is especially concerning since the trial court had already found

defendant suffers from an unnamed “mental illness or defect” and had before it “all

of [the] testimony and evidence” from the competency hearing, including an

evaluation from Dr. Antonio Puente in 2008 when defendant was only 14 years old.

Dr. Puente’s evaluation was the first done, when defendant was not much older than

at the time of the interrogation. Dr. Puente found “the diagnosis is mild retardation

with organic deficits limiting his ability to understand and appreciate the

complexities involved with the alleged incident, as well as his own legal situation.”

Dr. Puente also did a follow-up evaluation in 2011, again diagnosing defendant with

“Mild Mental Retardation.” Because all of the testimony and evaluations presented

at the competency hearing were included as part of the evidence for the hearing on

the motion to suppress, 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.” Id. The trial court must evaluate the

evidence, consider its weight, and make the required findings, but here it simply did

not. See generally id., 442 U.S. at 724–25, 61 L. Ed. 2d at 212.

       This case has gone on for a long time. When it started, defendant was a 13



                                         - 32 -
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                                  Opinion of the Court



year old child. When defendant entered his plea, he was nearing his 20th birthday.

At the time of the filing of this opinion, defendant is 24 years old. Nonetheless, we

must remand for the trial court to make additional findings of fact addressing

whether defendant’s waiver of rights at age 13 was knowing and intelligently made,

taking into account the evidence regarding defendant’s “experience, education,

background, and intelligence” and evaluation of “whether he has the capacity to

understand the warnings given to him, the nature of his Fifth Amendment rights,

and the consequences of waiving these rights.” Id. These considerations under Fare

are not technicalities but are essential to any conclusion of whether defendant

knowingly and intelligently waived his right to remain silent. See generally id. The

trial court’s order did not properly address the constitutional arguments before it in

defendant’s motion to suppress, and thus remand is necessary at this late stage in

defendant’s ongoing criminal proceedings. Certainly the trial court may consider

later evaluations and events in its analysis of defendant’s knowing and intelligent

waiver at age 13 but should take care not to rely too much on hindsight. Hindsight

is reputed to be 20/20, but hindsight may also focus on what it is looking for to the

exclusion of things it may not wish to see. 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



                                         - 33 -
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                                  Opinion of the Court



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. See generally id.

                                  IV.   Conclusion

       Because while this action was pending in the trial court, and particularly

when the issue of admission of evidence of defendant’s statement could have been

considered by the trial court, defendant’s uncle was his “custodian,” defendant’s

rights under North Carolina General Statute § 7B-2101(b) were not violated. The

amendment to North Carolina General Statute § 7B-101(8), which redefined the

term “custodian,” was not applicable to defendant’s case. Therefore, defendant’s

attorney did not provide ineffective assistance of counsel in failing to make an

argument under North Carolina General Statute § 7B-2101(b). The trial court

properly denied defendant’s MAR, and we affirm the order denying defendant’s

MAR.

       Because the trial court failed to address the key considerations in determining

whether defendant had knowingly and intelligently waived his rights during police

interrogation, we must remand the order denying defendant’s motion to suppress for

further findings of fact. We note that both the State and defendant have already

presented evidence regarding these issues, but if either the State or defendant



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                                 STATE V. BENITEZ

                                 Opinion of the Court



should request that the trial court allow presentation of further evidence or

argument on remand, the trial court may in its sole discretion either allow or deny

this request.

      AFFIRMED in part; REMANDED in part.

      Chief Judge McGEE and Judge TYSON concur.




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