- Upon notice and finding of probable cause, transfer of the case to superior court for trial as an adult is mandatory in certain specified circumstances, and in all other cases it is discretionary.
- In discretionary cases, the juvenile court conducts a hearing and receives evidence, and the judge decides whether protection of the public and the needs of the juvenile would be served by a transfer to superior court.
- If the case is transferred, the superior court obtains jurisdiction over the alleged offense and any other related offense.
- The juvenile may ask the superior court to review the transfer decision for an abuse of discretion.
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.
- 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 (1stdegree 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 became statutorily mandated for any juvenile aged 16 or 17 at the time he or she commited 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. The transfer 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.
- 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”).
In practice, there will rarely be a second transfer hearing in juvenile court, because any juvenile who previously had a criminal case transferred to superior court (and was convicted) must be prosecuted as an adult for any future criminal conduct. If the juvenile was convicted after the prior transfer, any subsequent criminal proceedings against that juvenile should be initiated in the same manner that criminal charges would be sought against any other adult defendant. See G.S. 7B-1604(b).
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.
When is this used?
Prosecutors may wish to invoke this new provision in cases where a transfer to superior court was mandatory (e.g., because the juvenile had a prior criminal conviction in adult court, or the juvenile is over age 16 and charged with a Class A-G felony), but the prosecutor believes that a resolution in juvenile court is more appropriate based on the nature of the prior conviction or pursuant to a negotiated plea to an offense lower than a Class G felony. See G.S. 7B-1604(b).
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 (4th 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).
Split the difference?
Alternatively, it might be possible to conduct the hearing using "limited" rules of evidence. As long as the notice requirements have been met, the court is permitted to conduct a probable cause and transfer hearing as a single proceeding. See In re J.J., Jr., 216 N.C. App. 366 (2011) (court conducted both probable cause and transfer hearings as one proceeding). At a probable cause hearing, the state is generally required to make its showing of proof through “nonhearsay evidence,” but there are several important exceptions to that rule which allow hearsay testimony on various issues. See G.S. 7B-2202(c). Proceeding under the same limited rules of evidence for the transfer hearing (either combined with the probable cause hearing, or as a separate proceeding) might offer a reasonable compromise.
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
- 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).
- 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).
- 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).
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).
- 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.