State of North Carolina s35

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF CATAWBA 06 SOS 0630

LAKSHA ENGLAND ) ) ORDER ALLOWING Petitioner, ) RESPONDENT’S MOTION ) FOR SUMMARY JUDGMENT ) NORTH CAROLINA DEPARTMENT ) OF THE SECRETARY OF STATE. ) ) Respondent. )

This matter comes on to be heard and being heard on Respondent’s Motion for Summary

Judgment and the Court, having considered the statement of facts, affidavits, arguments of counsel, and legal memoranda filed by counsel and the whole record, hereby finds that

Respondent’s Motion for Summary Judgment should be granted.

FINDINGS OF FACT

1. Petitioner submitted an application to Respondent for appointment as a North

Carolina Notary Public. Petitioner indicated on question 16 of the application that she had been arrested for an offense for which trial was still pending.

2. In a 30 November 2005, letter to Respondent, Petitioner indicated that she received Deferred Prosecution on a larceny charge. Petitioner also indicated that she was still on probation.

3. Petitioner entered a deferred prosecution agreement on 01 April 2004.

(Respondent’s Exhibit C)

4. Petitioner was released from her deferred prosecution agreement on 03 March

2006. (Respondent’s Exhibit F)

1 5. N.C. Gen. Stat. § 10B-5(d)(2) states:

The Secretary may deny an application for commission or recommission if any of the following apply to an applicant:

The applicant's conviction or plea of admission or nolo contendere to a felony or any crime involving dishonesty or moral turpitude. In no case may a commission be issued to an applicant within 10 years after release from prison, probation, or parole, whichever is later. (Emphasis added)

6. Respondent denied petitioner’s application based on her being on probation within 10 years of her application.

7. N.C. Gen. Stat. § 15A-1341(a1) concerns deferred prosecution and provides that a person charged with a Class H or I felony may be placed on probation as provided in Article 82 of Chapter 15A of the North Carolina General Statutes.

8. Respondent’s Exhibit C titled Terms of Agreement for Deferred Prosecution in the Twenty-Sixth uses the term probation in paragraphs 3, 4, 5, 8, 11, 13, and 17.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the subject matter and the parties herein pursuant to

Chapters 150B and 10B.

2. Petitioner was placed on probation as that term is used in N.C. Gen. Stat. § 10B-

5(d)(2) as a result of Petitioner being placed on deferred prosecution under N.C. Gen. Stat. §

15A-1341(a1).

3. Petitioner admitted to being on deferred prosecution for larceny and embezzlement which placed her on probation.

4. Petitioner was released from probation on 3 March 2006.

5. Respondent properly denied Petitioner’s application for a North Carolina Notary

Public Commission pursuant to N.C. Gen. Stat. § 10B-5(d)(2) based on Petitioner being released

2 from probation within 10 years of her application for a North Carolina Notary Public

Commission.

6. Respondent did not act arbitrarily, capriciously or contrary to law when it denied

Petitioner’s application for a North Carolina Notary Public Commission

7. There are no genuine issues of material fact in dispute. As such, summary judgment is appropriate.

BASED UPON the foregoing findings and conclusions the Court hereby orders and decrees as follows:

1. Respondent’s denial of Petitioner’s Application for a North Carolina Notary

Public Commission is affirmed.

2. Respondent’s Motion for Summary Judgment is granted.

NOTICE

The Agency is required to give each party an opportunity to file exceptions to this decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

The Agency is required to serve a copy of the final decision on all parties.

This the 1 st day of September, 2006.

______Julian Mann III Chief Administrative Law Judge