514.1Transfer Hearing

When Transfer May/Must Happen

After notice of the intent to seek a transfer, and a hearing and finding of probable cause, the court may transfer jurisdiction over a juvenile to superior court for trial as an adult if the juvenile was 13 or older when the juvenile committed a felony. See G.S. 7B-2200; AOC-J-442 (Juvenile Order – Transfer Hearing). Transfer can be sought by the state, by the juvenile, or on the court’s own motion. G.S. 7B-2200. Transfer of a juvenile case may be either mandatory or discretionary, depending on the juvenile’s age and the nature of the alleged offense. 

1. Mandatory Transfer

Transfer to superior court for prosecution as an adult is always mandatory (“shall transfer”) if the court finds probable cause that a juvenile committed a Class A felony (1^stdegree murder). See G.S. 7B-2200. Additionally, if the juvenile has already aged out of the juvenile court’s jurisdiction by the time a petition is sought (or if the matter cannot be concluded before juvenile ages out of jurisdiction), the court’s only options are to transfer the case to superior court or dismiss the petition. G.S. 7B-1601(c) and (d). Effective December 1, 2019, transfer of the case to superior court also became statutorily mandated for any juvenile aged 16 or 17 at the time he or she committed a Class B through G felony, or if the juvenile commited a new offense after having already been prosecuted in adult court for a qualifying prior offense. See G.S. 7B-1604(b); 7B-2200.5. Subsequent changes effective December 1, 2021, revised this requirement and gave prosecutors the discretion to decline to transfer Class D through G felonies to superior court for prosecution. G.S. 7B-200.5(a1). 

A transfer under these provisions shall be ordered after either: (i) a notice, hearing, and finding of probable cause in juvenile court; or (ii) upon notice to the juvenile and a finding by the court that a bill of indictment has been returned charging a Class A-G felony against the juvenile. See G.S. 7B-2200.5(a). For more information about the procedure for effecting a mandatory transfer through indictment, see Jacquelyn Greene, "The Indictment Process and Juvenile Transfer," N.C. Criminal Law Blog, January 28, 2020.

2. Discretionary Transfer

In all other felony cases involving juveniles aged 13, 14, or 15 at the time of the offense, transfer of the case to superior court is discretionary rather than mandatory. See G.S. 7B-2200; G.S. 7B-2200.5 (effective 12/1/19). If transfer is sought by either party or on the court’s own motion, then after finding or waiver of probable cause, the court must either proceed immediately with a transfer hearing or set a date for that hearing. If the juvenile has not received notice at least 5 days before the probable cause hearing of the intention to seek transfer, then at the juvenile’s request the court must continue the transfer hearing. See G.S. 7B-1807 (requiring “five days' written notice of the date and time of all scheduled hearings unless the party is notified in open court or the court orders otherwise”). 

  3. Discretionary Remand and Expunge

Pursuant to a recent amendment to G.S. 7B-2200.5(d), it is now possible to remand "any case where jurisdiction over a juvenile has been transferred to superior court." The statute does not set forth any particular procedures that must be followed or criteria that must be met, other than specifying that the remand "shall" occur if it is based "upon joint motion of the prosecutor and the juvenile's attorney." G.S. 7B-2200.5(d). Additionally, if the case is remanded to juvenile court under this statute, all records of the charges in superior court must be expunged in accordance with G.S. 15A-145.8.

Conducting the Hearing

The procedures for conducting transfer hearings are governed by G.S. 7B-2203. At the hearing, the prosecutor and the juvenile may offer evidence and be heard, and the juvenile’s attorney may examine any court, probation, or other records which the court may consider in determining whether to transfer the case. See G.S. 7B-2203(a).

The statute does not clearly indicate whether the formal rules of evidence apply to transfer hearings, and the North Carolina appellate courts have not yet directly ruled on this issue. The Fourth Circuit has held that the rules of evidence do not apply to juvenile transfer hearings in federal court. See, e.g., U.S. v. Juvenile Male, 554 F.3d 456 (4^th Cir. 2009) (“Significantly, the Federal Rules of Evidence do not generally apply in a juvenile transfer proceeding,” and the juvenile’s argument “that he was not allowed to cross-examine the agent is simply misplaced, in that a transfer proceeding is civil in nature. As such, its purpose is not to incriminate, but to select the proper forum for trial.”). A contrary view is that the normal rules of evidence do apply to transfer hearings, because the rules of evidence apply by default unless a proceeding is specifically excluded under Rule 1101, and juvenile transfer hearings are not excluded by that rule. See, e.g., State v. Foster, 222 N.C. App. 199 (2012) (applying rules of evidence to a post-conviction hearing on DNA testing, because they were not specifically excluded under Rule 1101).

Based on the evidence presented at the transfer hearing, the judge 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,” and in doing so the judge must consider the following eight factors set out in G.S. 7B-2203(b): 

(1)   Age of the juvenile 

(2)   Maturity of the juvenile

(3)   Intellectual functioning of the juvenile

(4)   Prior record of the juvenile

(5)   Prior attempts at rehabilitation of the juvenile

(6)   Facilities and programs available to the court (prior to the court losing jurisdiction), and the likelihood the juvenile would benefit from treatment or rehabilitative efforts

(7)   Whether the offense was committed in a violent, aggressive, premeditated, or willful manner

(8)   Seriousness of the offense, and whether protection of the public requires that the juvenile be prosecuted as an adult

The criteria are not prioritized or weighted in any particular order – the judge must weigh all of them and exercise his or her discretion in concluding whether transfer is appropriate. If the court orders a transfer, then the judge must enter an order specifying the reasons for the transfer. See G.S. 7B-2203(c); AOC-J-442 (Juvenile Order – Transfer Hearing). If the court does not order a transfer, then the case may proceed to an adjudicatory hearing or set a date for the hearing. G.S. 7B-2203(d). The adjudication must be conducted as its own separate hearing. See G.S. 7B-2202(f); G.S. 7B-2203(d). For more information, see the related Juvenile entry on Adjudication Hearings. 

What Happens After Transfer is Ordered

1. Pretrial Release

Once the district court enters an order to transfer a juvenile’s case to superior court, the juvenile has a right to be considered for pretrial release, as provided in G.S. 15A-533 and 15A-534. See G.S. 7B-2204; 7B-2603(b) and (c). Bond should be set initially by the district court, and any subsequent bond issue decided by the superior court. Any release order must specify the person(s) to whom the juvenile may be released. If the juvenile is to remain in custody, he or she may not be held in jail pending a trial in superior court – the juvenile must continue to be housed in a juvenile detention facility or, in narrow circumstances, a local holdover facility. See G.S. 7B-2603(b).

2. Intake/Identification Procedures

Several other statutes make clear that certain adult criminal procedures, rather than juvenile court procedures, will apply to the juvenile once his or her case has been transferred to superior court for trial as adult. See, e.g., G.S. 7B-2201 (fingerprinting and, if any of the offenses for which the juvenile is transferred are included in G.S. 15A-266.3A, taking a DNA sample); G.S. 7B-2103 (nontestimonial identification proceduresin Articles 14 and 23 of G.S. Chapter 15A).

3. Appeal to Superior Court 

When the district court orders a transfer, the juvenile may appeal to the superior court, for “a hearing on the record.” G.S. 7B-2603. Notice of appeal must be given in open court or in writing within 10 days after entry of the order of transfer in district court. Entry of an order is treated in the same manner as entry of judgment under Rule 58 of the Rules of Civil Procedure—that is, the order is entered when it is signed by the judge and filed by the clerk. The clerk of superior court must provide the district attorney with a copy of any written notice of appeal filed by the juvenile’s attorney. On the expiration of the 10-day period in which an appeal may be entered, if an appeal has been entered and not withdrawn, the clerk must transfer the case to the superior court docket. 

The superior court, within a reasonable time, must review the “record” of the transfer hearing (presumably a transcript) strictly to determine whether the district court abused its discretion by ordering a transfer that was “manifestly unreasonable” – the superior court does not review the findings concerning probable cause, or reweigh all the evidence that the district court considered. See G.S. 7B-2603(a); In re E.S., 191 N.C. App. 568 (2008) (“Put simply, a superior court may not substitute its judgment for that of the district court”). After review, the superior court must enter an order either: (i) remanding the case to juvenile court for adjudication, or (ii) upholding the transfer order. See G.S. 7B-2603(c).

4. Indictment

Although it is not explicitly stated in the transfer statutes themselves, case precedent dictates that once the matter has been transferred to superior court, the juvenile should be charged by indictment (if that has not already occurred) and the state should proceed to trial or plea upon that new pleading, rather than the original petition. See State v. Bridges, 19 N.C. App. 567 (1973) (“Once such a case is transferred to the superior court, trial upon indictment is the proper procedure"); see also State v. Collins, 245 N.C. App. 478 (2016) (discussing superior court jurisdiction after transfer).

The transfer order confers jurisdiction on the superior court to try: (i) the felony offense alleged in the petition; (ii) any offense based on the same act or transaction, or on a series of acts or transactions, connected together or constituting parts of a single scheme or plan of that felony; and (iii) greater or lesser-included offenses for that felony. See G.S. 7B-2203(c); State v. Jackson, 165 N.C. App. 763 (2004) (superior court had jurisdiction to include a transactionally-related conspiracy charge in the indictment, even though it was not originally charged in the juvenile petition).

5. Appeal to North Carolina Court of Appeals

The superior court order affirming the transfer is an interlocutory order, so the issue of transfer may be appealed to the North Carolina Court of Appeals only after the juvenile has been convicted in superior court. See G.S. 7B-2603(d). A juvenile who does not appeal a transfer decision to superior court may not later seek appellate review of that decision when appealing from the superior court conviction. See State v. Wilson, 151 N.C. App. 219 (2002) (holding that the juvenile waived appellate review of issues concerning the transfer hearing because the juvenile failed to appeal the transfer order to superior court). The juvenile may try to seek discretionary appellate review of the transfer by writ of certiorari, but it is not included as grounds for review under Rule 21 of the Rules of Appellate Procedure. See State v. Hammonds, 218 N.C. App. 158 (2012). If the juvenile pleads guilty in superior court, his or her right to appeal the transfer decision is strictly limited. See G.S. 15A-1444.