An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-680


NORTH CAROLINA COURT OF APPEALS

Filed: 6 June 2006

STATE OF NORTH CAROLINA

    v.                            Guilford County
                                Nos. 03 CRS 24544
MARCUS C. HATCHETT,                        03 CRS 24634
        Defendant.                 04 CRS 24019

    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.

    GEER, Judge.

    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 issue.

Facts

    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 court.
    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.
Discussion

    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. denied, 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.

Id. 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." Id. at 223, 565 S.E.2d at 226. We therefore dismissed the defendant's assignments of error relating to the transfer order. Id.
    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.

    Dismissed.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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