Juvenile Code Does Not Authorize Transfer Based on Consent by Jacquelyn Greene

One of the more common questions I receive about the transfer of a case from juvenile jurisdiction to the jurisdiction of the superior court for trial as an adult is whether transfer can be ordered based on consent of the juvenile. The issue seems to cross my desk when a juvenile has some charges pending in criminal court and there are unrelated felony charges pending under juvenile jurisdiction. The short answer is no. The statutory structure that governs transfer does not allow for ordering transfer based on consent. Why?

Mandatory Transfer is Only Triggered By Certain Events

Transfer of cases from juvenile jurisdiction to superior court for trial as an adult is sometimes required under the Juvenile Code. This is true when a juvenile is accused of committing a Class A felony at age 13, 14, or 15 and when a juvenile is accused of committing a Class A – G felony at age 16 or 17 (although the prosecutor can choose not to transfer a Class D – G felony alleged to have been committed at age 16 or 17). G.S. 7B-2200, -2200.5(a), (a1). Transfer in these cases is required following a finding of probable cause. Transfer is also required if an indictment is returned alleging a Class A – G felony at age 16 or 17. You can find a more detailed description of mandatory transfer procedure, along with all of the law that governs transfer, in Transfer of Juvenile Delinquency Cases to Superior Court. For the purpose of this blog, the key point is that transfer of these cases must occur as a result of either a finding of probable cause or, for the applicable cases, a finding that an indictment was returned. There is no discretion on the part of the court and the statute does not allow for a juvenile to consent to transfer in the absence of a finding of probable cause or that an indictment was returned.

Discretionary Transfer Requires a Transfer Hearing

For cases in which the most serious offense charged is a Class B1 – I felony committed at age 13, 14, or 15 or a Class H or I felony committed at age 16 or 17, a discretionary transfer statutory structure is in place. G.S. 7B-2200, -2200.5(b). The question of consent to transfer most often arises in these cases. If the juvenile and the prosecutor both agree to transfer, can the court order transfer based on the consent of the parties? Both statutes that govern discretionary transfer allow the court to order transfer “after notice, hearing, and a finding of probable cause.” G.S. 7B-2200, -2200.5(a)(2). G.S. 7B-2203 describes the hearing that is required—a transfer hearing. It requires the court to determine whether the protection of the public and the needs of the juvenile will be served by transfer. G.S. 7B-2203(b). The statute also requires that the court consider these eight factors in making that determination: (1) The age of the juvenile; (2) The maturity of the juvenile; (3) The intellectual functioning of the juvenile; (4) The prior record of the juvenile; (5) Prior attempts to rehabilitate the juvenile; (6) Facilities or programs available to the court prior to the expiration of the court’s jurisdiction under Subchapter II of Chapter 7B and the likelihood that the juvenile would benefit from treatment or rehabilitative efforts; (7) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; and (8) The seriousness of the offense and whether the protection of the public requires that the juvenile be prosecuted as an adult. The need for the court to make the determination based on consideration of these factors is required, as the statute uses the term “shall.” There is no statutory authority to order transfer without considering the eight factors and making the determination. Additionally, if the court chooses to transfer the case, G.S. 7B-2203(c) requires that the order of transfer specify the reasons for transfer. The North Carolina Court of Appeals explained that this statutory structure places three requirements on the district court when ordering transfer as the result of the transfer hearing. “First, the court must determine whether the protection of the public and the needs of the juvenile will be served by transfer of the case to superior court. Second, the court must consider eight specified factors. Third, if the court decides to transfer the case, then the order must specify the reasons for that decision.” In re E.S., 191 N.C. App. 568, 572–73 (2008). The statutes do not allow for an alternative procedure based on the juvenile’s consent.

So, We Have to Hold a Hearing?

Yes. It does seem that even if a juvenile wants a case that falls into the discretionary transfer statutory structure transferred, the court must hold a transfer hearing. Under these circumstances, the juvenile may be arguing for transfer at that hearing. This is consistent with the statutory right that the juvenile’s attorney has to make the initial motion for transfer. G.S. 7B-2200, -2200.5(b). There may be strategies that can reduce the burden of holding a long and complicated hearing under these circumstances. For example, the juvenile and the prosecutor may be willing to stipulate to certain facts that support some of the factors such as the age, maturity, intellectual functioning, and prior record of the juvenile. However, the statutory structure is clear that the court ultimately has the exclusive authority to determine if the case should be transferred based on the mandatory statutory considerations. There is no statutory authority to order transfer based on the consent of the parties.