Ex Parte ADR
A.D.R., a juvenile, was initially brought to the Lee Juvenile Court on four counts of capital murder, those four counts being based on the deaths of three people. After a hearing, the juvenile court determined that A.D.R. should be transferred to the circuit court to be tried as an adult. Neither A.D.R.‘s appointed counsel nor the juvenile judge informed A.D.R. that he could appeal the transfer order. After the 14-day period for appeal (see
The new attorney filed a motion in the juvenile court for a rehearing on the transfer order, but the motion was denied. A.D.R. appealed the juvenile court‘s denial, but the Court of Criminal Appeals on June 16, 1995, dismissed the appeal, without opinion. A.D.R. v. State, 678 So.2d 816 (Ala.Crim.App.1995) (table). The new attorney then attacked the transfer order by filing with the juvenile court what the attorney called a
A.D.R. cites Ex parte Cruse, 474 So.2d 109 (Ala.1985), in which we considered a juvenile‘s claim of ineffective assistance of counsel and held that “[t]he decision of counsel appointed by the juvenile court not to appeal the transfer order, without [the juvenile‘s] knowledge, consent, or approval, denied him the constitutional right to effective assistance of counsel at a critical stage in the proceedings against him.” Id. at 111. Ex parte
A.D.R. filed a Rule 32 “petition for relief from judgment.” The Court of Criminal Appeals held in its unpublished memorandum that Rule 32 relief is available only after a conviction and that Rule 32 affords no mechanism for a court to consider a claim of ineffective assistance of counsel at a transfer hearing, citing J.M.V. v. State, 651 So.2d 1087, 1089 (Ala.Crim.App.1994). In J.M.V. the Court of Criminal Appeals stated that Rule 32 “does not apply to juvenile transfer hearings.” Id. at 1089. By its terms, Rule 32 applies to “any defendant who has been convicted of a criminal offense.”
While a transfer order is not a conviction, this Court has held that a transfer hearing is a critical stage in a criminal proceeding and therefore requires the assistance of competent counsel. Neither the Alabama Rules of Criminal Procedure nor the Alabama Rules of Juvenile Procedure address the question of how a court may consider a juvenile‘s claims of ineffective assistance of counsel in regard to the transfer hearing, where no appeal is taken. The petition for the writ of error coram nobis has historically been available for a criminal defendant to raise allegations of ineffective assistance of counsel. Thompson v. State, 525 So.2d 820 (Ala.1985). In fact, in Cruse, the juvenile raised the issue of his counsel‘s failure to appeal the transfer order, by petitioning for the writ of error coram nobis. 474 So.2d at 109.
This Court, in Ex parte S. B., 650 So.2d 953 (Ala.1994), noted that
“Rule 24 ... requires that the judge conducting a juvenile hearing ascertain the presence of all necessary parties and whether they are ready to proceed. The judge must also explain to the parties their rights, the substance of the petition, and the specific allegations contained in the petition. The judge is also required to explain to the parties the nature of the proceedings and the alternatives available to the court should the allegations contained in the petition be admitted or proven.”
650 So.2d at 954. No explanation of the right of appeal was given to A.D.R. by the trial judge or by his appointed counsel.
Justice requires that we reverse the judgment of the Court of Criminal Appeals and remand this case with instructions to allow an out-of-time appeal of the transfer order.
The facts of this case indicate a need to amend the Alabama Rules of Juvenile Procedure or the Alabama Rules of Criminal Procedure to designate the procedure to be followed in a fact situation such as this. Until our procedural rules are amended to deal specifically with this problem, this opinion
REVERSED AND REMANDED WITH INSTRUCTIONS.
HOOPER, C.J., and ALMON, HOUSTON, KENNEDY, and COOK, JJ., concur.
MADDOX, J., dissents.