1. Juveniles--first-degree murder--transfer to superior court
The trial court did not err by concluding the juvenile court's determination that the
juvenile petition alleging first-degree murder and the decision to transfer the case to superior
court after finding probable cause without a transfer hearing were proper, because: (1) the
petition adequately charged the offense in a clear and concise manner and informed the juvenile
of the charge against him so he could adequately prepare a defense; (2) if the juvenile needed
further clarification on the charge, he could have filed a motion for a bill of particulars under
N.C.G.S. § 15A-925; and (3) N.C.G.S. § 7B-2200 requires the district court to transfer the case
to superior court upon a finding of probable cause in a Class A felony.
2. Sentencing--aggravated range--clerical error
Although the trial court did not err by sentencing defendant in the aggravated range for
second-degree murder, the trial court's order is remanded for correction of a clerical error in the
determination section of the Findings of Aggravating and Mitigating Factors form to reflect its
conclusion that the aggravating factor outweighed the mitigating factors.
Attorney General Roy Cooper, by Assistant Attorney General E.
Clementine Peterson, for the State.
Brian Michael Aus for defendant-appellant.
THOMAS, Judge.
Defendant, Bradley Monte Brooks (Brooks), pled guilty to
second-degree murder and was sentenced to 165 to 207 months in the
North Carolina Department of Corrections. He appeals, arguing two
assignments of error.
A juvenile petition alleged that Brooks was “a delinquent
juvenile as defined by GS 7B-1501(7) in that in Durham County and
on or about Wednesday, January 5, 2000 at approximately 1:32 pm,the above named juvenile unlawfully, willfully, and feloniously
with malice and aforethought did kill Vondell Ellerbee. In
violation of GS 14-17 Murder.” Brooks did not become sixteen years
old until 20 January 2000 and therefore, under N.C. Gen. Stat. §
7B-1601(a), original jurisdiction was properly in juvenile court.
At a probable cause hearing on 7 March 2000, the juvenile
court found probable cause to believe Brooks committed first-degree
murder. The juvenile court then, without holding a transfer
hearing under N.C. Gen. Stat. § 7B-2203 (where parties would have
the opportunity to present evidence), ordered that the case be
transferred to superior court. Brooks appealed the transfer order
to superior court. Under section 7B-2603, review by the superior
court is only on the record, however, with the standard being abuse
of discretion. The superior court does not have jurisdiction to
review the findings as to probable cause. N.C. Gen. Stat. § 7B-
2603 (1999).
The grand jury indicted Brooks on a charge of first-degree
murder on 20 March 2000. The superior court heard and denied
Brooks's appeal from the transfer decision on 10 January 2001,
approximately ten months after oral notice of appeal was given.
Brooks also made a written request for hearing on the appeal on 13
June 2000 and attached a transcript of the 7 March 2000 hearing.
Pursuant to a plea agreement, Brooks then pled guilty to
second-degree murder. The trial court found one factor in
aggravation and three factors in mitigation. After finding in open
court that the aggravating factor outweighed the mitigating
factors, the trial court imposed an aggravated sentence of 165 to207 months imprisonment. While the sentence imposed in the written
judgment entered by the trial court conforms with the sentence
imposed in open court, the judgment indicates the trial court found
that the mitigating factors outweighed the aggravating factor and
that a mitigated sentence was justified.
[1]By his first assignment of error, Brooks argues the trial
court erred by finding no error in the juvenile court's
determination that the juvenile petition alleged first-degree
murder and in the decision to transfer the case to superior court
without a transfer hearing.
After a finding of probable cause, upon proper motion to
transfer, the juvenile court is mandated to hold a transfer hearing
unless transfer is required. N.C. Gen. Stat. § 7B-2202(e) (1999).
Transfer is required if the juvenile was thirteen or older at the
time the juvenile allegedly committed the offense, probable cause
is found, and the alleged offense constitutes a Class A felony.
N.C. Gen. Stat. § 7B-2200 (1999). Here, Brooks was fifteen at the
time of the alleged offense and the juvenile court found probable
cause. Brooks, however, argues that the petition did not allege a
Class A felony, and therefore the district court was required to
conduct a transfer hearing prior to a transfer. We disagree.
This Court has held that a juvenile petition properly alleged
first-degree murder and satisfied the requirements of N.C. Gen.
Stat. § 7A-560 (repealed effective 1 July 1999; now N.C. Gen. Stat.
§ 7B-1802 (1999)) with the following language:
That the juvenile is a delinquent as defined
by G.S. 7A-517(12) in that in Durham County
and on or about December 30, 1997 the above
named juvenile unlawfully, willfully andfeloniously did of malice aforethought kill
and murder Tracy Price G.S. 14-17 [Sic].
In re K.R.B., 134 N.C. App. 328, 331-32, 517 S.E.2d 200, 202,
appeal dismissed and review denied, 351 N.C. 187, 541 S.E.2d 713
(1999). Here, the juvenile petition alleged the following:
That the juvenile is a delinquent juvenile as
defined by GS 7B-1501(7) in that in Durham
County and on or about Wednesday, January 5,
2000 at approximately 1:32 pm, the above named
juvenile unlawfully, willfully, and
feloniously with malice and aforethought did
kill Vondell Ellerbee. In violation of GS 14-
17 Murder.
Given the substantial similarity of the language here to the
petition at issue in In re K.R.B., the petition in this matter, as
in In re K.R.B., “adequately charged the offense in a clear and
concise manner and informed juvenile of the charge against him so
he could adequately prepare a defense. If juvenile needed further
clarification on the charge, he could have filed a motion for a
bill of particulars pursuant to North Carolina General Statutes
section 15A-925 (1997).” Id. The petition properly alleged first-
degree murder and satisfied the requirements of N.C. Gen. Stat. §
7B-1802.
First-degree murder is a Class A felony. N.C. Gen. Stat. §
14-17 (1999). Again, “[i]f the alleged felony constitutes a Class
A felony and the court finds probable cause, the court shall
transfer the case to the superior court for trial as in the case of
adults.” N.C. Gen. Stat. § 7B-2200 (emphasis added). Under that
circumstance, N.C. Gen. Stat. § 7B-2203 is not applicable. Because
N.C. Gen. Stat. § 7B-2200 requires the district court to transfer
the case to superior court upon a finding of probable cause in aClass A felony, the superior court properly denied Brooks's appeal
from that transfer decision. See N.C. Gen. Stat. § 7B-2603 (a)
(1999). This assignment of error is therefore overruled.
[2]By his second assignment of error, Brooks argues the trial
court erred by sentencing him in the aggravated range of
punishment. He argues the judgment contains no findings of factors
in aggravation or mitigation, and he further asserts the form
containing the findings of aggravating and mitigating factors makes
no indication of whether there were aggravating factors. Brooks
also notes that although the trial court indicated on the form that
the factors in mitigation outweighed the factors in aggravation, it
imposed a sentence in the aggravated range.
We note that the record before this Court indicates that the
judgment does contain findings of factors in aggravation and
mitigation. In addition, the Findings of Aggravating and
Mitigating Factors form does contain one aggravating factor, that
“[t]he defendant joined with more than one other person in
committing the offense and was not charged with committing a
conspiracy.” Brooks's assertions as to the absence of the
aforementioned findings are therefore without merit. Our review of
the transcript clearly shows the trial court found in open court
that the aggravating factor outweighed the mitigating factors and
imposed a sentence in the aggravated range for this B2 felony at
Brooks's prior record level of I. See N.C. Gen. Stat. § 15A-
1340.17(c) (1999). The trial court's written judgment contains the
same terms of imprisonment.
We therefore remand this matter to the trial court forcorrection of the clerical error in the determination section
of
the Findings of Aggravating and Mitigating Factors form to reflect
its conclusion that the aggravating factor outweighed the
mitigating factors.
NO ERROR; REMANDED FOR CORRECTION OF CLERICAL ERROR.
Judges WYNN and BRYANT concur.
*** Converted from WordPerfect ***