When Raise the Age (RTA) was passed, it created a new procedure in juvenile court. A 16- or 17-year-old charged with a Class A through G offense can be indicted by a grand jury after a petition is filed, and then transferred by a district court judge to superior court. However, this law does not extend to 13-, 14-, or 15-year-olds who are charged with the same offenses and transfer is being sought. The law governing 13-, 14- and 15-year-olds is found under N.C.G.S. 7B-2200, while the law governing 16- and 17-year-olds is found under N.C.G.S. 7B-2200.5.
But what happens if my 13-, 15- or 15-year-old client is indicted? Here are some suggestions:
· File a motion asking the juvenile court judge to dismiss the indictment and hold a probable cause hearing and, if appropriate, a transfer hearing. (A sample motion is available at the Defender Portal on the Juvenile Defender webpage) If you find out about the indictment for the first time in open court, object to transferring the case to superior court without a probable cause hearing.
· If the court denies your motion (or objection) and your client is transferred to superior court without a probable cause hearing, appeal the issue to the Superior Court. Then, file a motion asking the judge to dismiss the indictment and remand the case to juvenile court for a probable cause hearing and, if appropriate, a transfer hearing. (A sample motion for superior court is also available at the Defender Portal) Be sure to get a ruling on the motion.
· If the Superior Court denies the motion and the juvenile is convicted, give notice of appeal and let the Office of the Appellate Defender know about the appeal,
· Alternatively, work with the prosecutor to negotiate the case back to district court. Unfortunately, the only way for this to occur is for the prosecutor to dismiss the case in Superior Court and refile in district court to begin the proper procedure.
· If the case is dismissed, the attorney may want to suggest to the client to seek an expunction of the Superior Court record or any evidence taken (such as DNA) as result of the illegal transfer. If so, the attorney may refer the client to the resources found on the OJD website or another organization, such as Legal Aid, which may be able to offer assistance.
Written by, Eric Zogry, State Juvenile Defender with the Office of the Juvenile Defender and David Andrews, Assistant Appellate Defender, with the Office of the Appellate Defender.