MOTION TO DISMISS THECHARGING PAPER

LAVAR JAMEL ROBERTS

[address]

[tel no.]

[email]

Appearing Pro Se

SUPERIOR COURT OF THE STATE OF ILLINOIS

PLEASE TAKE NOTICE that on ________ day of _____________, 2021 at  _______, or as soon after that as the matter can be heard, specially appearing Applicant, LAVAR JAMEL ROBERTS will appear and move the Court for an order to dismiss the Respondent’s charge against the Applicant.

  This motion will be based on this notice of motion, the memorandum of points and authorities; the Declaration of APPLICANT– LAVAR JAMEL ROBERTS, the pleadings, documents, records and files in this action, and such oral and documentary evidence as may be presented at the hearing.

Dated:  ____________________

Respectfully submitted,

By:__________________________

LAVAR JAMEL ROBERTS,

Pro Se

Specially Appearing Respondent

MEMORANDUM OF POINTS AND AUTHORITIES

I.

 “There must be substantial evidence adduced at the hearing that the minor is not a fit and proper subject for treatment as a juvenile before the court may certify him tothe superior court for prosecution.”  (H. v. Superior Court(1970) 3 Cal.3d 709, 715.) In deciding juvenile court’s jurisdiction over a minor to be tried as an adult, “[t]he . . . court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.”  (Haraguchi v. Superior Court(2008) 43 Cal.4th 706, 711-712, fns. omitted.)  “All exercises of discretion must be guided by applicable legal principles . . . .  If the court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal.”(Farmers Ins. Exchange v. Superior Court(2013) 218 Cal.App.4th 96, 106.)The “discretion must be exercised in accordance and in the framework prescribed by the Legislature.”  (Bruce M. v. Superior Court(1969) 270 Cal.App.2d 566, 573.)

II.

LEGAL ARGUMENT

To justify the transfer of a minor from juvenile court to the criminal court system, the prosecution bears the burden of establishing by a preponderance of the evidence the minor is not a suitable candidate for treatment under the juvenile court system.

A key issue is whether juvenile court jurisdiction hinges on the accused’s age at the time of the filing of the criminal case or at the time of the crime. Respondent’s age is a key factor at the time of the crime as decisive, permitting juvenile court prosecution of a child who is older than the statutory maximum as long as s/he was under the maximum at the time of the crime. State v. Salavea, under applicable statute, juvenile court jurisdiction turns on the “age of the Applicant at the time of the proceedings, regardless of age at commission of the crime”. Jurisdiction over children is based on the basis of their age at the time of the commission of the crime, provided that the child does not exceed another designated maximum age by the time the proceedings commence.

In deciding juvenile court jurisdiction by reference to the child’s age at the time the proceedings commence, the courts have ruled that the juvenile court retains jurisdiction (or that the adult court lacks jurisdiction) when the prosecutor’s or police officers’ delay in commencing proceedings was motivated by the purpose of preventing the child from being eligible for juvenile court treatment. See Miller v. Quatsoe, 348 F. Supp. 764 (E.D. Wis. 1972).

Furthermore, in People v. Hunter & Wilson, 2017 IL 121306, an amendment to the statute changing the requirements for the automatic transfer of juveniles to adult court (705 ILCS 405/5-130), which went into effect after Applicant Hunter had been convicted but while his case was pending on direct appeal, was held not to apply retroactively to Applicant’s case. Section 4 of the Statute on Statutes (5 ILCS 70/4) allows the application of procedural changes in the law to be applied retroactively to ongoing proceedings. It also requires that “the proceedings thereafter” shall conform to the laws in force at the time of the proceedings in question. In Applicant’s case, the proceedings in the trial court were completed before the transfer statute was amended. Because the proceedings were completed, the amended statute does not apply retroactively to Applicant’s case.

An amendment allowing a trial court to decline to impose firearm enhancements in sentencing Applicants under the age of 18 (730 ILCS 5/5-4.5-105), which went into effect after Applicants had been convicted but while their cases were pending on direct appeal, was held not to apply retroactively to Applicants’ cases. Under section 4 of the Statute on Statutes (5 ILCS 70/4), a punishment mitigated by a new law is applicable only to judgments imposed after the new law takes effect. Since Applicants were sentenced before the new law went into effect, the amendment does not apply retroactively to their cases.

Applicant herein was arrested and detained for having allegedly committed an offence. Pursuant to procedure, Applicant was charged with the offence and arraigned in court for prosecution. At the time it was clear and apparent that the Applicant was a minor before the court and nonetheless, the Applicant was tried, convicted and incarcerated as an adult.

Trying minors in court as adults results in unfair and inconsistent determinations. Juveniles incarcerated in facilities intended to detain adult convicts often experience emotion and physical stress as they are developmentally unable to make important decisions for themselves. Indeed this is reflected in a minor’s lack of capacity to vote, drive or be enlisted into the military.

III.

CONCLUSION

Based on the above, it is requested that Applicant’s motion to dismiss complaint be granted.

Dated:  ____________________

Respectfully submitted,

By:__________________________

LAVAR JAMEL ROBERTS,

Pro Se

AFFIDAVIT OF LAVAR JAMEL ROBERTS

I, LAVAR JAMEL ROBERTS declare as follows.

1. I am over the age of 18 years and a party to this action. I have personal knowledge of the facts stated in this declaration, and if called as a witness, could and would testify competently to the truth of the facts as stated herein.
2. The criminal action *********** was filed against be while I was still a minor below the age of 16 years old.
3. The in the criminal action against me was heard and determined against me as an adult which I was not at the time the alleged crime was committed.
4. That consequent to the hearing and determination against me as an adult, I was sentenced and convicted as an adult and incarcerated in a facility intended for adults.
5. That no due consideration was taken in account of my age at the time.
6. I respectfully request that the Court grant my motion to dismiss the complaint.

I declare under penalty of perjury under the laws of the State of Illinois that the foregoing is true and correct and that this Declaration was executed on 21^st September 2021 at [insert county], Illinois.

__________________________________________

                              LAVAR JAMEL ROBERTS, Applicant

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