Choco v. United States
| Decision Date | 13 February 1978 |
| Docket Number | No. 12371.,12371. |
| Parties | Christina CHOCO, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Appeal from the Superior Court of the District of Columbia; (Hon. H. Carl Moultrie, Hearing Judge).
Mary-Elizabeth Medaglia, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Judith Hetherton, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before KERN, NEBEKER and YEAGLEY, Associate Judges.
Appellant is charged by indictment with burglary I, burglary II, and four counts of willful failure to appear in court proceedings in violation of conditions of release. D.C.Code 1973, §§ 22-1801(a), 22-1801(b), 23-1327. By pretrial motion, appellant moved that she be treated as a juvenile and that her case be transferred from the Criminal Division of the Superior Court to the Family Division. The judge of the Criminal Division determined, after an evidentiary hearing, that appellant was not a juvenile. Appellant asserts that the government did not bear its burden of proving that she was not a juvenile. The government argues that the trial court's finding was supported by the evidence but that we have no jurisdiction to entertain this appeal because it is from a non-final order. We hold that the order is presently appealable and reverse.
Appellant's motion to be treated as a juvenile was based upon her assertion that she was a child within the meaning of D.C. Code 1973, § 16-2301(3). That subsection provides, in part, that the term "child" includes a person under the age of twenty-one who is charged with [certain offenses, including burglary I] committed before [s]he attained the age of sixteen . . Appellant presented evidence (fully contested by the government) that she was under sixteen years of age when the burglary with which she is charged occurred, in April 1975. Appellant's assertions, if believed, would entitle her to transfer of her case to the Family Division.
D.C.Code 1973, § 16-2302(a), requires a trial judge of the Criminal Division to transfer a case to the Family Division if
it appears to [the] court, during the pendency of a criminal charge and before the time when jeopardy would attach in the case of an adult, that a minor defendant was a child at the time of an alleged offense . .
Section 16-2302(b) provides that if
at the time of an alleged offense, a minor defendant was a child but this fact is not discovered by the court until after jeopardy has attached, the court shall proceed to verdict.
Assuming that the defendant is convicted, the conviction
shall not be set aside on the ground of the defendant's age unless the court, after hearing, determines that (1) neither the defendant nor his counsel, prior to the entry of judgment, had reason to believe that defendant was under the age of eighteen years, and (2) the defendant would not have been transferred [from the Family Division] for criminal prosecution [under D.C.Code 1973, § 16-2307]. [Id.]
The plain language of this last provision would preclude a post-judgment remedy in this court where, as here, both defendant and counsel had reason to believe, prior to judgment, that she was under the age of eighteen. A defendant's asserted right to disposition in juvenile proceedings, therefore, is forever lost if not resolved in her favor before jeopardy has attached.
The ruling in this case meets all of the tests of finality enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and, more recently, in Abney v. United States, 431 U.S. 651, 654-662, 97 S.Ct. 2034, 2038-2042, 52 L.Ed.2d 651, 657-62 (1977). The order was final in the sense that "[t]here are simply no further steps that can be taken in the [trial court] to avoid the trial . . . ." Abney v. United States, supra at 659, 97 S.Ct. at 2040, 52 L.Ed.2d at 660. The right asserted is "collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not [she] is guilty of the offense charged." Id. Appellant "makes no challenge whatsoever to the merits of the charge against [her]." Id. That the determination that appellant be tried as an adult is "too important to be denied review", Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546, 69 S.Ct. at 1226, is amply demonstrated by the statutory right of interlocutory appeal granted to juvenile offenders over whom the Family Division has waived jurisdiction. D.C.Code 1973, § 16-2327. Finally, as discussed above, a post-judgment appeal "will be too late effectively to review the present order, and [appellant's] rights . . will have been lost, probably irreparably." Cohen v. Beneficial Industrial Loan Corp., supra at 546, 69 S.Ct. at 1225.
A further consideration re-enforces our conclusion that an order such as this is final and appealable. When juvenile proceedings have been instituted in the Family Division, a judge of that Division may, under certain circumstances, order transfer of the juvenile to the Criminal Division for criminal prosecution. D.C.Code 1973, § 16-2307. Such an order, however, is immediately appealable. Id. § 16-2327. Were we to hold that an order denying a motion to transfer from the Criminal Division to the Family Division is non-appealable, then the right to appellate review of the proper Superior Court forum for adjudication would be dependent upon the government's choice of an initial forum. If the government chose to institute juvenile proceedings in the Family Division, a transfer for criminal prosecution would be appealable. But if the government chose to institute a prosecution in the Criminal Division, an order denying transfer for juvenile proceedings would not be appealable. In each case the right asserted is the same: the right to juvenile adjudication. That right is no less valuable when asserted in the Criminal Division, and the remedy for asserted denial of that right should be no less available.
We hold that the order entered in this case was final and immediately appealable.
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