LITIGATING JUVENILE TRANSFER AND CERTIFICATION CASES IN THE JUVENILE AND CIRCUIT COURTS

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1 LITIGATING JUVENILE TRANSFER AND CERTIFICATION CASES IN THE JUVENILE AND CIRCUIT COURTS I. OVERVIEW Historically, the rationale behind the development of the juvenile court was based on the notion that juveniles should be treated differently than adult offenders with a focus more on rehabilitation than the traditional focus on adults, which is punitive. Over the years, however, a statutory framework has emerged in most states and the federal system to treat juveniles as adults in certain types of cases, and transfer jurisdiction from the juvenile court to the adult court of record. In Virginia, this is typically done through two different methods. The first method is when a case is certified to circuit court after a preliminary hearing. This is done for certain statutorily enumerated violent felonies, and is typically referred to as certification. The second method can be done when a juvenile is charged with any felony, and the court finds that the juvenile no longer has much chance of being rehabilitated, and is typically referred to as transfer. The decision to transfer a juvenile has a profound impact, because it is essentially saying that the juvenile is not capable of being rehabilitated. Studies also show that juveniles who are treated as adults recidivate at higher levels, and with more serious offenses than juveniles who are kept in the juvenile court system. II. JURISDICTION OF THE JUVENILE COURT OVER JUVENILE OFFENDERS A. Exclusive Original Jurisdiction Va. Code Sec (A)(1) provides that the juvenile court has exclusive original jurisdiction over matters and proceedings regarding children who [are] alleged to be delinquent. In matters involving violent felonies which are certified to circuit court pursuant to Va. Code Sec , the juvenile court retains jurisdiction until a probable cause, or preliminary hearing, which, in this context, is usually referred to as a certification hearing. In matters which are transferred to circuit court pursuant to Va. Code Sec , the juvenile court retains jurisdiction until the transfer hearing, which is a probable cause hearing, plus the consideration of other enumerated statutory factors. This is typically referred to as a transfer hearing. One situation in which the juvenile court will never have jurisdiction over a juvenile from the beginning of a case is when a juvenile who has previously been transferred or certified and convicted in circuit court in a prior case, is arrested and charged again for new offenses. In this situation, the charges should proceed by warrant (or J&DR Court if the charge involves a family member) or by direct indictment in circuit court. See Va. Code , (C).

2 III. TRANSFER under Va. Code Se A A A, The statute governing juvenile transfers reads: Except as provided in subsections B and C, if a juvenile 14 years of age or older at the time of the offense is charged with an offense which would be a felony if committed by an adult, the court shall, on motion of the attorney for the Commonwealth and prior to a hearing on the merits, hold a transfer hearing and may retain jurisdiction or transfer such juvenile for proper criminal proceedings to the appropriate circuit court having criminal jurisdiction of such offenses if committed by an adult. Any transfer to the circuit court shall be subject to the following conditions: 1. Notice as prescribed in and shall be given to the juvenile and his parent, guardian, legal custodian, or other person standing in loco parentis; or attorney 2. The court finds that probable cause exists to believe that the juvenile committed the delinquent act as alleged or a lesser included delinquent act which would be a felony if committed by an adult; 3. The juvenile is competent to stand trial. The juvenile is presumed to be competent and the burden is on the party alleging the juvenile is not competent to rebut the presumption by a preponderance of the evidence; and 4. The court finds by a preponderance of the evidence that the juvenile is not a proper person to remain within the jurisdiction of the juvenile court. In determining whether a juvenile is a proper person to remain within the jurisdiction of the juvenile court, the court shall consider, but not be limited to the following factors: a. The juvenile s age b. The seriousness and number of alleged offenses, including (i) whether the alleged offense was against persons or property, with greater weight being given to offenses against persons, especially if death or bodily injury resulted; whether the maximum punishment for such offense is greater than twenty years confinement if committed by an adult; (iv) whether the alleged offense involved the use of a firearm or other dangerous

3 weapon by brandishing, threatening, displaying, or otherwise employing such weapon; and (v) the nature of the juvenile s participation in the alleged offense; c. Whether the juvenile can be retained in the juvenile justice system long enough for effective treatment and rehabilitation; d. The appropriateness and availability of the services and dispositional alternatives in both the criminal justice and juvenile justice systems for dealing with the juvenile s problems; e. The record and previous history of the juvenile in this or other jursisdictions, including (i) the number and nature of pervious contacts with juvenile or circuit courts, (ii) the number and nature of prior periods of probation, (iii) the number and nature of prior commitments to juvenile correctional centers, (iv) the number and nature of previous residential and community-based treatments, (v) whether previous adjudications and commitments were for delinquent acts that involved the infliction of serious bodily injury, and (vi) whether the alleged offense is part of a repetitive pattern of similar adjudicated offenses; f. Whether the juvenile has previously absconded from the legal custody of a juvenile correctional entity in this or any other jurisdiction; g. The extent, if any, of the juvenile s degree of mental retardation or mental illness; h. The juvenile s school record and education; i. The juvenile s mental and emotional maturity; and j. The juvenile s physical condition and physical maturity. No transfer decision shall be precluded or reversed on the grounds that the court failed to consider any of the factors specified in subdivision 4. N.B. If warranted, it is important to present evidence of a juvenile s mental development. If the juvenile is behind from a developmental standpoint, this may be a factor which weighs against transfer. This may be accomplished through the probation officer, or if the probation officer is not sympathetic toward your client, then through a mental health professional that has worked with your client.

4 N.B. Frequently, prosecutors will be willing to drop the transfer proceeding if the juvenile defendant pleads guilty. This is something to discuss with your client as well as the prosecutor. N.B. If the judge finds the juvenile defendant guilty of a lesser misdemeanor, then the case will remain in juvenile court. B. Code Transfer reports and hearings 1. Code (B) Prior to the hearing, the juvenile probation office shall complete a report on the juvenile as to the application of the statutory factors to that juvenile. The court shall not consider the report until a finding of probable cause has been made. This is a good opportunity to look and see if the probation officer has listed any alternatives to transfer, i.e., juvenile programs that the juvenile has not completed, such as Post-D, or even commitment. If the probation officer does not mention this in the report, ask the probation officer directly. 2. Code (A) states that statements made by the juvenile at the transfer hearing provided for under shall not be admissible against him over objection in any criminal proceedings following the transfer, except for purposes of impeachment. Because of this statute, it may not be as ill advised to have a client testify at a transfer hearing than at a preliminary hearing. 3. Code (C) states that after the transfer hearing, whether or not the juvenile court decides to retain jurisdiction over the juvenile or transfer the juvenile, the court SHALL set bail for the juvenile in accordance with Chapter 9 ( et seq.) of Title 19.2, if bail has not already been set. It does not say the court shall CONSIDER bail. So be sure to ask for bail. IV. APPEALS OF TRANSFER DECISIONS Who may appeal? - The defense has the right to appeal the juvenile court s decision to transfer the case to circuit court. Conversely, the Commonwealth may appeal the court s decision to retain jurisdiction. Both must do so within ten days. See Code o 1. Once this happens, the court may remand the juvenile to the local jail, or to the local detention home. Naturally, defense counsel should advocate for the juvenile to remain in a juvenile placement. -

5 A. Within seven days after receipt of notice of an appeal from the transfer decision pursuant to subsection A of , by either the attorney for the Commonwealth or the juvenile, or if an appeal to such a decision to transfer is not noted, upon expiration of the time in which to note such an appeal, the clerk of the court shall forward to the circuit court all papers connected with the case, including any report required by subsection B of , as well as a written court order setting forth the reasons for the juvenile court s decision. Within seven days after receipt of notice of an appeal, the clerk shall forward copies of the order to the attorney for the Commonwealth and other counsel of record. B. The circuit court, when practicable, shall, within 45 days after receipt of the case from the juvenile court pursuant to subsection A of , (i) if either the juvenile or the attorney for the Commonwealth has appealed the transfer decision, examine all such papers, reports and orders and conduct a hearing to take further evidence on the issue of transfer, to determine if there has been substantial compliance with subsection A of , but without redetermining whether the juvenile court had sufficient evidence to find probable cause; and (ii) enter an order either remanding the case to the juvenile court or advising the attorney for the Commonwealth that he may seek an indictment. A juvenile held continuously in secure detention shall be released from confinement if there is no hearing on the merits of his case within 45 days of the filing of the appeal. The circuit court may extend the time limitations for a reasonable period of time based upon good cause shown, provided the basis for such extension is recorded in writing and filed among the papers of the proceedings. However, in cases where a charge has been certified by the juvenile court to the grand jury pursuant to subsection B or C of , the attorney for the Commonwealth may seek an indictment upon such charge and any ancillary charge without obtaining an order of the circuit court advising him that he may do so. 1. If the transfer order from juvenile court is not appealed, then the Commonwealth may indict the juvenile without first seeking an authorizing order from the circuit court. 2. The standard of review on this type of appeal is de novo, and new evidence can be introduced that was not presented in juvenile court, but the only focus of the appeal is whether the juvenile court complied with the statutory requirements for transfer. See Broadnax v. Commonwealth, 16 Va. App. 36 (1993). C. The circuit court order advising the attorney for the Commonwealth that he may seek an indictment shall divest the juvenile court of its jurisdiction over the case as well as the juvenile court s jurisdiction over any other allegations of delinquency arising from the same act, transaction, or scheme giving rise to the charge for which the juvenile has been transferred. In addition, upon conviction of the juvenile

6 following transfer or certification and trial as an adult, the circuit court shall issue an order terminating the juvenile court s jurisdiction over that juvenile with respect to any future criminal acts alleged to have been committed by such juvenile and with respect to any pending allegations of delinquency which have not been disposed of by the juvenile court at the time of the criminal conviction. However, such an order terminating the juvenile court s jurisdiction shall not apply to any allegations of criminal conduct that would properly be within the jurisdiction of the juvenile and domestic relations district court if the defendant were an adult. Upon receipt of the order terminating the juvenile court s jurisdiction over the juvenile, the clerk of the juvenile court shall forward any pending petitions of delinquency for proceedings in the appropriate general district court. D. The judge of the circuit court who reviewed the case after receipt from the juvenile court shall not, over the objection of any interested party, preside over the trial of such charge or charges. E. Any objection to the jurisdiction of the circuit court pursuant to this article shall be waived if not made before arraignment. F. The time spent between the filing of an appeal in juvenile court and the circuit court s issuance of an order disposing of the appeal shall not count towards the defendant s time calculations for purposes of speedy trial. V. CERTIFICATION A. Mandatory certification under Code B The juvenile court shall conduct a preliminary hearing whenever a juvenile 14 years of age or older is charged with capital murder in violation of , first or second degree murder in violation of , lynching, in violation of , or aggravated malicious wounding in violation of If a juvenile is charged with any of these four offenses, then, by statute, a certification hearing must take place. Notice need not be given. 2. If the juvenile judge finds probable cause on a lesser included offense, then the judge is able to retain the case. However, in this situation, the Commonwealth may ask the judge for a finding of no probable cause so that it may indict directly under D. 3. The Commonwealth may amend the charge to something less serious so that it need not certify. This may happen if the defendant agrees to plead guilty and remain in juvenile court.

7 B. Discretionary certification under Code C 1. The juvenile court shall conduct a preliminary hearing whenever a juvenile 14 years of age or older is charged with: a. Murder ( ) b. Felonious injury by mob, a.k.a. Malicious wounding by mob ( ) c. Abduction ( ) d. Malicious wounding ( ) e. Malicious wounding of a law enforcement officer ( ) f. Felonious poisoning ( ) g. Adulteration of products ( ) h. Robbery ( ) i. Carjacking ( ) j. Rape ( ) k. Forcible sodomy ( ) l. Object sexual penetration ( ) m. Manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance in violation of if the juvenile has been previously adjudicated delinquent on two or more occasions of violating provided the adjudications occurred after the juvenile was at least 14 years of age. n. Manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute methamphetamine in violation of if the juvenile has been previously adjudicated delinquent on two or more occasions of violating provided the adjudications occurred after the juvenile was at least 14 years of age o. Felonious manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute anabolic steroids in violation of if the juvenile has been previously adjudicated delinquent on two or more occasions of violating provided the adjudications occurred after the juvenile was at least 14 years of age, Provided the attorney for the Commonwealth gives written notice of his intent to proceed pursuant to this subsection. The notice shall be filed with the court and mailed or delivered to counsel for the juvenile or, if the juvenile is not then represented by counsel, to the juvenile and a parent, guardian or other person standing in loco parentis with respect to the juvenile at least seven days prior to the preliminary hearing. If the attorney for the Commonwealth elects not to give such notice, or if he elects to withdraw the notice prior to certification of the charge to the grand jury, he may proceed as provided in subsection A.

8 N.B. These are the charges in which the Commonwealth is not required to certify. Again, the Commonwealth will frequently withdraw certification if the client pleads guilty as a juvenile. C. Direct Indictment under Code D Upon a finding of probable cause pursuant to a preliminary hearing under subsection B or C, the juvenile court shall certify the charge, and all ancillary charges, to the grand jury. Such certification shall divest the juvenile court of jurisdiction as to the charge and any ancillary charges. Nothing in this subsection shall divest the juvenile court of jurisdiction over any matters unrelated to such charge and ancillary charges which may otherwise be properly within the jurisdiction of the juvenile court. If the court does not find probable cause to believe that the juvenile has committed the violent juvenile felony as charged in the petition or warrant or if the petition or warrant is terminated by dismissal in the juvenile court, the attorney for the Commonwealth may seek a direct indictment in the circuit court. If the petition or warrant is terminated by nolle prosequi in the juvenile court, the attorney for the Commonwealth may seek an indictment only after a preliminary hearing in juvenile court. If the court finds that that juvenile was not 14 years of age or older at the time of the offense or that the conditions specified in subdivision 1 (notice), 2 (probable cause), or 3 (competency) have not been met, the case shall proceed as otherwise provided for by law. N.B. In other words, for the Commonwealth to direct indict a case such as this, there must have been a preliminary hearing. If the charge was nolle prossed before a preliminary hearing, then the charge must be refiled in the juvenile court. If a case was in transfer proceedings in juvenile court, and the charge was nolle prossed before a transfer hearing, then the charge likewise must be refiled in juvenile court, and cannot be direct indicted. D. Code E The Cure All Provision An indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile s age. If an indictment is terminated by nolle prosequi, the Commonwealth may reinstate the proceeding by seeking a subsequent indictment. In other words, if you believe there was an error in the transfer or certification process, you must raise this issue with the circuit court before the circuit court issues a formal indictment. Once this happens, all issues, save those dealing with the juvenile s age, are waived.

9 E. Waiver of Jurisdiction under Code This subsection provides that a juvenile fourteen years of age or older and charged with an offense that would be a felony if committed by an adult, may, with written consent of his counsel, waive jurisdiction of the juvenile court, and proceed to trial in circuit court as though his case had been transferred. N.B. Any decision of the juvenile court can be given de novo review in circuit court. Therefore, there is typically no reason to waive jurisdiction, unless the juvenile wants to use an insanity defense, which is not recognized in the juvenile court. See Commonwealth v. Chatman, 260 Va. 562, 538 S.E.2d 304 (2000). VI. Circuit Court s Authority Over a Juvenile Offender Under Code A. In any case in which a juvenile is indicted, the offense for which he is indicted and all ancillary charges shall be tried in the same manner as provided for in the trial of adults, except as otherwise provided with regard to sentencing. Upon a finding of guilty of any charge the court shall fix the sentence without the intervention of a jury. 1. If the juvenile is convicted of a violent juvenile felony, for that offense and for all ancillary crimes, the court may order that: (i) (ii) The juvenile serve a portion of the sentence as a serious juvenile offender under and the remainder of such sentence in the same manner as provided for adults; The juvenile serve the entire sentence in the same manner as provided for adults; or (iii) The portion of the sentence to be served in the same manner as provided for adults be suspended conditioned upon successful completion of such terms and conditions as may be imposed in a juvenile court upon disposition of a delinquency case including, but not limited to, commitment under subdivision 14 of or If the juvenile is convicted of any other felony, the court

10 may sentence or commit the juvenile offender in accordance with the laws of this Commonwealth (adult sentence) may in its discretion deal with the juvenile in the manner prescribed in this chapter for the hearing and disposition of cases in the juvenile court, including, but not limited to, commitment under (a juvenile disposition) or may in its discretion impose an adult sentence and suspend the sentence conditioned upon successful completion of such terms and conditions as may be imposed in a juvenile court upon disposition of a delinquency case (blended sentence). 3. If the juvenile is not convicted of a felony but is convicted of a misdemeanor, the court shall deal with the juvenile in the manner prescribed by law for the disposition of a delinquency case in the juvenile court. B. If the court decides to deal with the juvenile in the same manner as a case in the juvenile court and places the juvenile on probation, the juvenile may be supervised by a juvenile probation officer. Things to keep in mind: -If your juvenile client ends up in circuit court through any of the methods described above, always recommend a jury trial. There is nothing to lose from it, because the jury does not decide the sentence, that is left solely to the judge. -Juveniles almost always confess, because they are young and impressionable, and frankly, do not understand their Miranda warnings even though they sign a form stating that they do. It may be a good idea to consider filing a motion to suppress a confession based on the juvenile not providing a knowing and intelligent waiver. Expert testimony can also be used, if your client has developmental issues. -your goal is to convince the judge to sentence your client as a juvenile, and unless the charge involves mandatory prison time (i.e. use of a firearm), the judge may sentence the juvenile to a juvenile disposition and suspend any adult time. Therefore, remember to ask for both a juvenile social history as well as an adult pre-sentence report. Special thanks to Joseph H. M. Schenk, Jr.

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