Appeal by defendant from judgment entered 18 February 2004 by
Judge Anderson D. Cromer in Guilford County Superior Court. Heard
in the Court of Appeals 22 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Dana F. Barksdale, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant-appellant.
Defendant Marcus C. Hatchett was initially charged in separate
juvenile petitions with robbery with a dangerous weapon, felonious
breaking and entering, and a second instance of robbery with a
dangerous weapon. The district court, after finding probable
cause, transferred the charges to superior court, where defendant
pled guilty. On appeal, defendant contends that the district
court's order transferring the charges lacked sufficient findings
of fact. Because, however, defendant did not appeal the district
court order to superior court, we lack jurisdiction to review this
On 30 July 2003, defendant was charged with being a delinquent
juvenile in that he committed the offenses of robbery with a
dangerous weapon and felonious breaking and entering. On 9
September 2003, another juvenile petition was filed charging
defendant with a second count of robbery with a dangerous weapon
arising out of a separate incident. On 24 October 2003, the
district court entered an order transferring the case to superior
Defendant was subsequently indicted on two counts of robbery
with a dangerous weapon and one count of felonious breaking or
entering. On 18 February 2004, defendant entered into a plea
agreement with the State. Prior to the plea hearing, defendant
moved to remand the matter back to juvenile court. That motion was
denied. Petitioner then pled guilty pursuant to the plea agreement
to two counts of robbery with a dangerous weapon and one count of
felonious breaking or entering and was sentenced to a term of 51 to
71 months imprisonment.
Defendant argues that the superior court lacked jurisdiction
to enter judgment because the district court order transferring the
case from juvenile to superior court lacked sufficient findings of
fact. The threshold consideration for the Court is whether
defendant's appeal is properly before this Court.
N.C. Gen. Stat. § 7B-2603(a) (2005) is the controlling
statute. It provides: [A]ny order transferring jurisdiction of the
district court in a juvenile matter to the
superior court may be appealed to the superior
court for a hearing on the record. Notice of
the appeal must be given in open court or in
writing within 10 days after entry of the
order of transfer in district court.
N.C. Gen. Stat. § 7B-2603(a).
In State v. Wilson
, 151 N.C. App. 219, 565 S.E.2d 223, cert.
, 356 N.C. 313, 571 S.E.2d 215 (2002), this Court, in
construing that statute, stated:
Pursuant to [N.C. Gen. Stat. § 7B-2603(a)],
issues arising from a transfer order from the
juvenile court to the superior court must be
appealed to the superior court. The statute
does not provide a procedure for appeal
directly to our Court. Following appeal of
the transfer order to superior court, if the
transfer order is upheld by the superior court
and the juvenile is thereafter convicted in
superior court, then an appeal of the transfer
order is to our Court.
at 222, 565 S.E.2d at 226. We concluded further that "[i]n
order to properly preserve the issue of transfer for review by our
Court, defendant was required to appeal the transfer order and
issues arising from it, to superior court, which he failed to do."
at 223, 565 S.E.2d at 226. We therefore dismissed the
defendant's assignments of error relating to the transfer order.
Similarly, in this case, the record contains no indication
that defendant gave oral or written notice in district court of an
appeal to the superior court of the transfer order. Instead,
defendant merely moved to remand the matter back to juvenile court.
In doing so, defendant's counsel stated:If Your Honor please, prior to entering the
plea _ the plea agreement we've entered into,
I do feel there's a motion I need to make for
the record. Quite candidly, Judge, I don't
know of no authority for this motion, either
statutory for it or case law, but I do want to
make it for the record. And I don't care to
elaborate or be heard at length on it.
Mr. Hatchett is a juvenile. He was 15
years of age. He was bound over after hearing
by the Honorable Judge Teresa Vincent in
District Court. Judge, we would ask Your
Honor to remand the case to District Court for
further proceedings in juvenile court.
Counsel argued as grounds for his motion to remand that the court's
order was arbitrary, since a more culpable co-defendant was not
bound over to superior court, and because the order was based on
the district court judge's concern that defendant would not spend
sufficient time in training school.
This motion to remand, which because of the lack of notice of
appeal could not be an appeal, was insufficient to preserve
appellate review of the transfer order. Thus, pursuant to N.C.
Gen. Stat. § 7B-2603(a) and Wilson, we may not review the transfer
order. Accordingly, we dismiss the appeal.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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