There are two types of transfers into ju- venile court: a one-way straight transfer pursuant to 33 V.S.A. § 5203(b), and the youthful offender transfer pursuant to § 5281, which permits transfer back to adult court in the event of a violation of the terms of juvenile probation. Except when representing youth charged with offenses listed under § 5204 (a), or youth very close to their eighteenth birthday,


it is gener-


ally best to seek a straight transfer under § 5203(b) first. If the court denies such a transfer, the youthful offender transfer re- mains an option.


While the statute does not set forth any criteria for considering a request for a straight transfer, case law suggests the use of the so-called Kent criteria.8


The Kent cri-


teria fit best in considering the transfer of serious offenses, particularly those involv- ing crimes against persons. However, the Kent criteria are not mandatory, and are of- ten largely inapplicable in less serious cas- es. Often, a more useful argument can be made that the services available in the ju- venile justice system are far better suited to rehabilitation than those available in the adult criminal justice system. As a practical matter, Department of Corrections proba- tion officers are often good witnesses for the defense in transfer cases. Most will tes- tify as to the lack of appropriate services in the adult system, and also that for many minor property or other non-violent offens- es, the youth is likely to be put on phone probation. In contrast, juvenile probation through the Department for Children and Families will at least entail a social work- er making monthly contact with the youth, and often a street checker ensuring that curfew and drug/alcohol screening condi- tions are met.


The benefit to the youth of this more stringent scrutiny is the ability to truthful- ly answer that they have not been convict- ed of a crime (under 33 V.S.A. § 5202, a delinquent act is clearly defined as a civil offense), the statutory prohibition of pub- licity to juvenile cases,9


and the automat-


ic expungement of the delinquency ad- judication.10


While military recruiters can


still obtain access to delinquency records, employers and landlords cannot. Juvenile drug adjudications do not affect student fi- nancial aid, or eligibility for federally fund- ed housing.


Mechanics of a “Straight Transfer”


A motion to transfer to juvenile court is filed in the criminal division.11


The motion


should contain arguments pertaining to each of the Kent criteria,12


and the practi-


tioner may wish to include information on adolescent brain development as it relates to criminal culpability.13


If successful at the motion hearing, the case will be transferred 24


to the juvenile court, the criminal case is dismissed, and a new juvenile docket num- ber is assigned. Unlike youthful offender, a youth does


not have to admit to the crime in order to obtain a transfer, and retains all of his/her trial rights (except a jury trial) in the juve- nile court. If the youth is adjudicated de- linquent, the youth and his/her family will meet with a social worker from the Depart- ment of Children and Families who serves as a probation officer. The social worker will submit a report to the juvenile court includ- ing recommended consequences. The law- yer can then negotiate changes in the re- port or recommended consequences, or request a contested hearing. When the youth is discharged from juve-


nile probation, and has had no further adju- dications or convictions for two years after discharge, the juvenile record is automati- cally sealed after notice, and opportunity to object, to the state’s attorney.14


Mechanics of Youthful Offender Transfer


A motion for Youthful Offender Treat- ment is filed in the criminal division.15


It


may be filed as long as the youth was eigh- teen years old when the crime occurred, and may be filed over the state’s attorney’s objection.16


The youth must enter a condi- tional guilty plea in the criminal division.17 Before entering a conditional plea, coun- sel should negotiate for any amended or dismissed charges. If the youth is granted youthful offender status and fails juvenile probation, the case will be transferred back to adult court and they will not be able to withdraw the guilty plea. They will then be sentenced in adult court for the charges to which they already pled guilty.18 After entering the conditional guilty plea, the court defers sentencing and transfers the case to juvenile court for a hearing on the motion.19


DCF investigates and makes


a recommendation whether the youth is appropriate for youthful offender treat- ment based on whether the juvenile court has services appropriate for the youth and the amenability of the youth.20


If the youth


is rejected, they may return to criminal court and withdraw their guilty plea.21 If the motion is contested, the hearing is confidential. However, part of the hear- ing related to protection of public safety is open to the public.22


Conclusion Until more prosecutors begin initiating


charges in juvenile court, attorneys need to take advantage of the legal strategies avail- able to transfer cases to the juvenile court. According to Caledonia County State’s At- torney Lisa Warren, “the majority of cases we see are appropriate for juvenile court to begin with, because most youth are ame- nable to treatment in the juvenile system, and the appropriate services are there for them, as opposed to the adult system.”25 ___________________ Pamela A. Marsh, Esq., is an attorney with the firm of Marsh Wagner & Winters, P.C. in Middlebury. She has served as the Addison County Juvenile Defender since 1992, and is chair of the Vermont Bar As- sociation Juvenile Law Section, and a mem- ber of the Vermont Justice for Children’s Task Force. Jennifer Wagner, Esq., is an attorney


with the firm Marsh Wagner & Winters, and has practiced juvenile law since 2000. Ms. Wagner recently revised the Vermont Defender General’s Juvenile Law Practice Manual.


____________________ 1


33 V.S.A. § 5203(c). Prosecutors can also di-


rect file cases in adult court against children fourteen years-old and older for certain offenses listed in 33 V.S.A. § 5204. The purpose of this ar- ticle is to focus on sixteen and seventeen year- olds not charged with so-called “listed offens-


es.” 2


YOUTH ON TRIAL (Thomas Grisso & Robert Schwartz eds., 2000); THE CHANGING BORDERS OF JUVENILE JUSTICE (Franklin E. Zimring & Jeffrey Fa-


gan eds., 2000). 3


4 5


543 U.S. 551, 125 S.Ct. 1183 (2005). 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011). 6 33 V.S.A. § 5119 (g). 7 33 V.S.A. § 5119 (a).


8


(1985). 9


State v. Willis, 145 Vt. 459, 494 A.2d 108 33 V.S.A. §5110 (c).


10 33 V.S.A. § 5119 (a). 11 33 V.S.A. § 5203 (b).


12 Kent v. United States, 383 U.S. 541, 566–


67, 86 S.Ct. 1045, 1059–60, 16 L.Ed.2d 84, 95 (1966), cited in State v. Willis, 145 Vt. 459, 494


A.2d 108 (1985). 13


551, 125 S.Ct. 1183 (2005). 14


15 33 V.S.A. § 5281.


16 33 V.S.A. § 5281(a). Prior to the new Juvenile Procedure Act, the state’s attorney had to agree


to the transfer. 17


If youthful offender


status is granted, the court must hold a re- view one month prior to the youth’s eigh- teenth birthday to determine if the juvenile court will extend its jurisdiction until the youth is twenty-two years old.23


Upon suc-


cessful completion of juvenile probation, the court dismisses both the juvenile and criminal cases, and immediately orders all records expunged.24


THE VERMONT BAR JOURNAL • FALL 2011


33 V.S.A. § 5281 (b). 18 33 V.S.A. § 5284 (e). 19 33 V.S.A. § 5281(b). 20 33.V.S.A. § 5282.


21 33 V.S.A. § 5281 (d)(1). 22 33 V.S.A. § 5283(c)(2). 23 33 V.S.A. § 5286. 25 33 V.S.A. §5287(c).


26 Interview with Lisa Warren, September 15, 2010.


See, for example, Roper v. Simmons, 543 U.S. 33 V.S.A. § 5119 (a).


www.vtbar.org


Think Twice Before Pleading a Sixteen or Seventeen Year-Old to an Adult Criminal Offense


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