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14

- P

- 550 Appeals Court

COMMONWEALTH vs . MATTHEW MERCIER

.

No. 14

- P

- 550.

Middlesex. May 7, 2015.

- August 7 , 2015.

Present: Trainor, Agnes, & Blake, JJ.

Jurisdiction , Juvenile Court, Juvenile delinquency proceeding. Juvenile Court , Jurisdiction. Practice, Criminal , Complaint, Indictment. Youthful Offender Act

. Delinquent Child

.

I ndictments found and returned in the Superior Court Department on December 6, 2012.

The case s w ere tried before Janet Kenton

- Walker , J.

Patrick Levin , Committee for Public Counsel Services, for the defendant. Jessica Langsam , Assistant District Attorney, for the Commonwealth.

AGNES, J. The principal issue raised by the defendant,

Matthew Mercier, is whether his conviction in 2013 of raping his

younger cousin on two occasions in 2008 must be vacated due to a

jurisdictional defect at t he outset of the case. In particular,2

he maintains that the case against him was commenced in the

Ju venile C ourt D epartment by means of an indictment and not by a

juvenile complaint , in violation of the requirements of G. L.

c. 119, § 74, as appearing in St. 1996, c. 200, § 15, which

provides in relevant part that "[ e ] xcept as hereinafter provided

and as provided in [ G. L. c. 119, §§ 52

- 84,

. . . no criminal

proceeding shall be begun against any person who prior to his

seventeenth birthday commits an offe nse again st the laws of the

commonwealth

. . . . " 1 Although the charges are very serious ,

1 Under the law applicable at the time of the proceedings in this case, there were exceptions to the general rule , that proceedings must be begun by a juvenile complaint , that are not applicable in this case

. For example, if a person committed an offense wh ile between the ages of fourteen and seventeen years of age like the ones charged in this case , i.e ., offenses involv ing "the infliction or threat of serious bodily harm," and the juvenile was apprehended prior to turning eighteen years of age, the Commonw ealth could elect to proceed by means of a complaint or seek a y outhful o ffender indictment. See G. L. c. 119, § 54 , as amended through St. 1996, c. 200, § 2 , and G. L. c. 119, § 72( b ), as appearing in St. 1998, c. 98, § 2

. However, for the reasons we explain in the text , in a case such as this in which the juvenile is not apprehended until after his eighteenth birthday, the Commonwealth does not have the right to proceed by direct indictment.

G eneral L aws c. 119, § 74 , as appearing in St. 1996,

c. 200, § 15, in its entirety reads as follows:

" Except as hereinafter provided and as provided in sections fifty

- two to eighty

- four, inclusive, no criminal proceeding shall be begun against any person who prior to his seventeenth birthday commits an offense against the laws of the commonwealth or who violates any city ordinance or town by

- law, provided, however, that a criminal complaint alleging violation of any city ordinance or town by

- law regulating the operation of motor vehicles, which is not3

and a Superior Court jury returned verdicts of guilty, we are

constrained to agree with the defendant and, accordingly , order

the judgments to be vacated. 2

Backgrou nd

. On December 23, 2010, the case was commenced

against the defendant by means of a y outhful o ffender ( YO )

indictment returned by a Middlesex County grand j ury. 3 A

ca pable of being judicially heard and determined as a civil motor vehicle infraction pursuant to the provisions of chapter ninety C may issue against a child between sixteen and seventeen years of age without first proceeding against him as a delinquent chil d.

" The juvenile court shall not have jurisdiction over a person who had at the time of the offense attained the age of fourteen but not yet attained the age of seventeen who is charged with committing murder in the first or second degree. Complaints and indictments brought against persons for such offenses, and for other criminal offenses properly joined under Massachusetts Ru les of Criminal Procedure 9 (a) (1), shall be brought in accordance with the usual course and manner of criminal proceedings."

2 At the outset of the hearing, counsel informed the judge that Commonwealth v. N anny , 462 Mass. 798 (2012) , was then pending before the Supreme Judicial Court on the question whether a direct indictment of a person in the defendant's position (over the age of eighteen when apprehended for an offense committed while he was a juvenile) was permissible. The Nanny case was decided on July 16, 2012, before the judge decided to transf er the defendant from Juvenile C ourt to adult court , and was t he basis of a spec ific motion , and argument , by defense counsel that the case should be dismissed for lack of jurisdiction

. In any case, we are required to address jurisdictional defects at any stage of the proceedings. S ee Commonwealth v. DeJesus , 440 Mass. 147, 150

- 151 (2003) ; Commonwealth v. Porges , 460 Mass. 525, 527 (2011)

.

3 A " [ y ] outhful offender" is defined by the statute in effect at the time of this case as "a person who is subject to an adult or juvenile sentence for having committed, while4

juvenile complai nt was never sought nor issued. Following an

evidentiary hearing conducted by the J uvenile C ourt on July 11,

2012, a judge found probable cause to believe the defendant had

raped his younger cousin while the defendant was sixteen years

old and the victim was nine years old. 4 The defendant was not

apprehended un til 2010 , after he turned eighteen years of age.

Based on the probable cause determination, the judge dismissed

the Y O indictment , ordered "the transfer of prosecution" to the

District Court , and requested issuance of adult criminal

complaints. On Decemb er 6, 2012, a Middlesex County grand jury

indicted the defendant as an adult on charge s of aggravated rape

of a ch ild (count one) and rape on a child with force (count

between the ages of fourteen and seventeen, an offense against a law of the commonwealth which, if he were an adult, would be punishable by imprisonment in the state prison, and (a) has previously been committed to the department of youth services, or (b) has committed an offense which involves the infliction or threat of serious bodily harm in violation of law, or (c) has committed a violation of paragraph (a), (c) or (d) of section ten or section ten E of chapter two hundred and sixty

- nine; provided that, nothing in this clause shall allow for less than the imposition of the mandatory commitment periods provided in section fifty

- eight of chapter one hundred and nineteen." G. L. c. 119, § 52, definition of "[y]outhful offender , " inserted by St. 1996, c. 200, § 1.

4 In v iew of the disposition we reach, it is not necessary to summarize the evidence presented at trial, or to address the other issue raised by the defendant concerning the alleged improper comments made by the prosecutor during her closing argument. However, because it is possible that this case could proceed again and result in a trial, we strongly suggest that counsel familiarize themselves with the new guidelines applicable to opening statements and closing arguments. See Mass.G.Evid. § 1113 (2015)

.5

two)

. On September 23, 2013, following a trial by jury before

the S uperior C ourt , the d efendant was convicted on both charges.

On October 3, 2013, the defendant was sentenced on count one to

a mandatory minimum term of ten years to ten years and one day

in S tate prison. On count two the judge imposed a sentence of

ten years' probation, to be served from and a fter the sentence

on count one.

Discussion

. The defendant maintains that because the

offenses in this case were committed while he was sixteen years

of age and a juvenile but he was over the age of eighteen when

apprehended, 5 it was n ecessary to commence t he case by means of a

delinquency , or juvenile, complaint , and without such a charging

document the J uvenile C ourt lacked the authority to conduct any
proceeding s , including a transfer hearing , and that the Superior

Court lacked the authority to try the indictments

. This

sta tement of law is supported by the t erms of the applicable

statutes and by a series of decision s by the Supreme Judicial

Court.

5 The events alleged in this case occurred prior to the passage of St. 2013, c. 84, "which extended the Juvenile Court's jurisdiction to persons who are seventeen years of age at the time of committing an offense." Watts v. Commonwealth , 468 Mass. 49, 49

- 50 (2 014). Throughout this opinion, we refer to the law as it existed at the time the defendant was apprehended in 2010.6

The statute governing transfer hearings like the one

conducted in this case, G. L. c. 119, § 72A, as appearing in St.

1996, c. 200, § 13A, provides :

" If a person commits an offense or violation prior to his seventeenth birthday, and is not apprehended until after his eighteenth birthday, the court, after a hearing, shall determine whether there is probable cause to believe that said person committed the offense charged, and shall, in its discretion, either order that the person be discharged, if satisfied that such discharge is consistent with the protection of the public; or, if the court is of the opinion that the interests of the public require that such person be tried for such offense or violation instead of being discharged, the court shall dismiss the delinquency complaint and cause a criminal complaint to be issued

. The case shall t hereafter proceed according to the usual course of criminal proceedings and in accordance with the provisions of [G. L. c. 218, § 30 , ] and [G. L. c. 278, § 18]. Said hearing shall be held prior to, and separate from, any trial on the merits of the cha rges alleged. " ( Emphasis suppli ed

. )

" The plain meaning of this statute is that, where a person has

allegedly committed a crime before his seventeenth birthday but

is apprehended after his eighteenth birthday, a delinquency

complaint shall be filed in the J uvenile Court, and a Juvenile

Court judge shall conduct a hearing to determine whether there

is probable cause to believe that the person committed the crime

charged and, if s o, how the case should proceed." Commonwealth

v. Porges , 460 Mass. 525, 528 (20 11) ( Porges )

. 6

6 Later in its opinion in the Porges case, the c ourt underscored this point when it stated that " we conclude that the Superior Court has jurisdiction over indictments charging rape of a child with force (G. L. c. 265, § 22A), and indecent assault and battery of a child under the age of fourteen (G. L.7

A reading of § 72A to require a juvenile complaint in all

cases in which the offender was a juvenile when the offense was

committed but who is not apprehended until he is no longer a

juvenile, is reinforced by the terms of G. L. c. 119, § 74, as
appearing in St. 1996, c. 2000, § 15, which provides in relevant

part that except as specifically provided in that chapter, "no

criminal proceeding shall be begun against any person" for an

offense committed prior to his seventeenth birthday

. 7

Porg es was followed by Commonwealth v. Nanny , 462 Mass. 79 8

(2012) ( Nanny )

. In Nanny , the c ourt determined that a transfer

h earing pursuant to § 72A must be held before the Commonwealth

may seek an indictment purs uant to G. L. c. 119, § 54 , 8 against a

c. 265, § 13B), pursuant to G. L. c. 119, § 72A, where the defendant is alleged to have be en under the age of fourteen at the time of the commission of the offenses, but was not apprehended until after his eighteenth birthday, provided a delinquency complaint is filed and a Juvenile Court judge determines that there is probable cause to believe the defendant committed the offenses charged, and the judge, in the sound exercise of discretion, determines that the intere sts of the public require that the defendant be tried for the offenses in the usual course of criminal proceedin gs instead of being discharged." Porges , 460 Mass. at 532

- 5 33 (emphasis supplied )

.

7 Further the exception set out in § 74 for motor vehicle offenses specifically provides that a criminal complaint alleging a motor violation may issue "without first proceeding against him as a delinquent child." This language again indicates that a delinquency complaint is required to initiate proceedings unless the statute otherwise makes an exception.

8 G eneral L aws c. 119, § 54, as amended through St. 1996,

c. 200, § 2, provides in p art that "[t]he commonwealth may proceed by complaint in juvenile court or in a juvenile session8

defenda nt in the position of the defendant in this case, namely ,

one who is alleged to have committed offenses when he was

between fourteen and sev enteen years of age, but who was not

apprehended until after his eighteenth birthday. Id . at 798

-

799

. Nanny rejects the Commonwealth's principal argument in

this case that § 54 authorized it to commence the case against

the defendant by means of a YO indictment. In Nanny , 462 Mass.

at 800, the c ourt explained that prior to 1996, Massachusetts

law provided that in order to prosecute as an adult a person who

was a juvenile at th e time an offense was committed, a J uvenile

C ourt judge had to conduct a transfer hearing first under G. L.

c. 119, § 61, repea led by St. 1996, c. 200, § 7. In all such

instances, the case against the juvenile began when a J uvenile

C ourt complaint was issued. The 1996 amendment of G. L. c. 119,

§ 54, which governs this case,

" was aimed primarily at ' address[ing] growing concern[s] abou t violent crimes committed by juveniles,' by creating a youthful offender classification

. The concurrent repeal of

of a district court, as the case may be, or by indictment as provided by chapter two hundred and seventy

- seven, if a person is alleged to have committed an off ense against a law of the commonwealth while between the ages of fourteen and seventeen which, if he were an adult, would be punishable by imprisonment in the state prison, and the person has previously been committed to the department of youth services, o r the offense involves the infliction or threat of serious bodily harm in violation of law or the person has committed a violation of paragraph (a), (c) or (d) of section ten or section ten E of chapter two hundred and sixty

- nine. The court shall proceed on the complaint or the indictment, as the case may be, in accordance with sections fifty

- five to seventy

- two, inclusive."9

§ 61, and amendment of § 54, allowed prosecutors to

' proceed [directly] against a child by indictment in a Juvenile Court i f the child [was] considered a " youthful offender, " ' without having to request a transfer after a hearing from a Juvenile Court judge

. "

Id . at 800

- 801 (citations omitted). Although the 1996 amendment

creating the YO category streamlined the process by means of

which a juvenile could be indicted and subject to adult

penalties for certain violent offenses , it did not change

preexisting law which required that a juvenile complaint be

obtained to initiate the case. I n Nanny , 462 Mass. at 801

- 802,

the c ourt held that before a juvenile can be indicted as a YO,

there must be a transfer hearing pursuant to G. L. c. 119,

§ 72A

. In Nanny , the c ourt also specifically rejected the

Commonwealth's argument, renewed in the present case, that § 72A

applies only to cases in which the Commonwealth has elected to

initiate the proceedings b y complaint , leav ing the Commonwealth

free in other cases to directly indict a juvenile as a YO under

§ 54 without first conducting a transfer hearing under G. L.

c. 119, § 72A

. " Under the clear language of the statute, once

the two conditions tha t trig ger § 72A are satisfied, ' a
delinquency complaint shall be filed in the Juvenile Court ' "

(emphasis original ). Nanny , 462 Mass. at 802, quoting from

Porges , 460 Mass. at 528. 9

9 The Nanny case was decided before the completion of the transfer hearing in this case and was the basis of an10

Despite th e detailed statutory analysis by the Supreme

Judicial Court in Common wealth v. Nanny , 462 Mass. at 799

- 806,

the Commonwealth argues that the holding in Nanny leaves room

for a different outcome in this case because unlike in Nanny , the defendant not only had the benefit of a probable cause

determination by the grand jury, but also had the benefit of a

hearing before a J uvenile C ourt judge that met the requirements

of G. L. c. 119, § 72A. 10 In Nanny , supra at 805, unlike in the

pres ent case, the Commonwealth sought to bypass the requirement

of a § 72A transfer hearing by arguing that a grand jury's

determination of probable cause was equivalent to or at least

satisfied § 72A's requirement of a probable cause determination.

T he c ourt in Nanny rejected this argument. Ibid

. 11 In Nanny ,

the c ourt also indicated that the avoidance of a transfer

hearing deprived the defendant of the safeguards under the

unsuccessful motion by the defendant to dismiss the YO indictments. See note 2, supra
.

10 A transcript of the transfer hearing conducted by the Juvenile C ourt judge is part of the record before us. The defendant does not claim that he was deprived of any of the rights he was entitled to under G. L. c. 119, § 72A , with the exception that a J uvenile C ourt complaint was neither sought nor issued.

11 The c ourt stated, " A probable cause determination differs from that made in grand jury proceedings in many respects including that a judge makes the determination, not a grand jury, and a defendant may present a defense and cross

- examine witnesses affording significant due process protections not available before a grand jury

. " Id . at 805.11

second prong of § 72A in that the discretion exercised by a

judge after a § 72A transfe r hearing is more expansive than the

sentencing discretion exercised by a judge after a person is

tried and convicted on an indictment , because one option

available to a judge in a § 72A hearing is to discharge the

defendant from any further prosecution. Id . at 805

- 8 06. The

record before us indicates that the judge properly addressed the

issues that should be addressed at the close of a § 72A hearing.

However, Nanny is not the final word from the Supreme

Judicial Court on the jurisdictional requirements in cases in

which the offender was a juvenile when the offense was committed

but is not apprehended until after he turns eighteen. In

Commonwealth v. Mogelinski , 466 Mass. 627 , 628 (2013)

( Mogelinski ) , the Supreme Judicial Court answered t he precise

question before us: " [w ] hether an individual may be indicted as

a youthful offender after he has turned 18, for offenses he

allegedly committed between the ages of 14 and 17? " The c ourt

answered the question " no. " Id . at 629. In Mogelinski ,

alt hough Juvenile C ourt complaints charging the defendant with

rape of a child were initially obtained before the defendant ' s
eighteenth birthday, by the time of his arraignment on those

complaints he had turned eighteen years of age. Id . at 6 29

.
However, w hile the delinquency complaints were still pending in

the Juvenile Court, the Commonwealth obtained YO indictments12

against the defendant pursuant to G. L. c. 119, § 54

. Ibid

.

The delinquency complaints were eventually nolle prossed. Id

.

at 630. In Mogelinski , the c ourt explained that under the law

applicable in this case (prior to the amendment of G. L. c. 119

by St. 2013, c. 84, see note 5 , supra ) , when a person is a

juvenile at the time the offenses are committed and when he is

apprehended 12 (even if he turns eighteen while the case is

pending) , and the offenses consist of one or more violent crimes

other than murder, the Commonwealth can proceed along either of

two tracks: a juvenile complaint or a YO indictment , with

significant differences in te rms of the dispositional options

available to the judge and the safeguards available to the

juvenile. Id . at 631

- 632. The distinction s between the two

tracks are significant. 13 However, once the person turns

eighteen before he is first apprehended (as i n this case) , the

12 In this case between the ages of fourteen and seventeen (under current law now eighteen). See note 5 , supra
.

13 "[C] omplaints against individuals label them

' delinquents ' and place them on one track, while indictments label their subjects ' youthful offenders ' and place them on another. A ' delinquent child ' is subject to essentially rehabilitative penalties and remedies, while a ' youthful offender ' is subject to penalties ranging from placement in a [Department of Youth Services] facility to adult sentences in the State prison." Mogeli nski , 466 Mass. at 641 (citations omitted). See Commonwealth v. Clint C ., 430 Mass. 219, 229 (1999) (Ireland, J., dissenting) (" By statute, the adjudication of a delinquency complaint is not a criminal proceeding. G. L. c. 119, §§ 53 and 74. The return of a youthful offender indictment transforms the proceeding into a criminal one ").13

offender can still be prosecuted in the Juvenile Court, but the

Commonwealth no longer retains the two options noted earlier.

" While proceedings under either a delinquency complaint or a

youthful offender indictment presuppose that an ind ividual is

under the age of eighteen when the proceeding is commenced, the

Commonwealth is not precluded from p rosecuting individuals who

are ' apprehended ' after their eighteenth birthdays for offenses

committ ed prior to turning seventeen. See G. L. c. 11 9, § 72A.

In such cases, the Commonwealth first must file a delinquency

complaint and obtain a transfer hearing in the Juvenile Court. "

Mogelinski , 466 Mass. at 632.

The question for us therefore is the consequence of failing

to obtain a juvenile complai nt against the defendant who had

turned eighteen years of age before he was apprehended but who

had the benefit of a transfer hearing that conformed to G. L.

c. 119, § 72A , in all other respects, an indictment by a grand

jury , and a jury trial? The answer, again i s supplied by the

Supreme Judicial Court in Mogelinski : "U ltimately, the Juvenile

Court is a court of limited jurisdiction, which ' has no .

. . authority in the absence of a specific statutory

authorization. '" Id

. at 645, quoting from Comm onwealth v. A

Juvenile , 406 Mass. 31, 34 (1989). 14 Here, without the prior

14 In Mogelinski , the c ourt added, " If the Legislature had disagreed with the result in Commonwealth v. Nanny , supra , and14

issuance of a juvenile complaint, the J uvenile C ourt lacked the

authority to proceed on a direct indictment of the defendant as

a YO and to transfer the defendant's case to adult co urt.

wished to make it easier for youthful offender indictments to issue after an individual otherwise ages out of the juvenile justice system, it would have addressed the matter when it increased by one year the Juvenile Court's jurisdictional age limit. Indeed, raising that age limit was the met hod it chose for bringing more people under the aegis of the Juvenile Court, rather than blurring the lines between delinquency complaints and youthful offender indictments." Mogelinski , 466 Mass. at 646. This is consistent with the view that "[t] he Juve nile Courts, like all the courts of the Commonwealth, except the Supreme Judicial Court, are creatures of the Legislature and derive their powers, other than those powers that are inherent in all courts , . . . fr om the Legislature." Parents of Two Minors v. B ristol Div. of the Juvenile C t

. Dept

. , 397 Mass. 846, 851 (1986 ).

To suggest that judges are authorized to nullify the requirement of a juvenile complaint in a case such as this would raise a troublesome constitutional question under the doctrine of the separation of powers established by a rt

. 30 of the Massachusetts Declaration of Rights

. T he Legislature has broad authority to define the jurisdiction of courts below the Supreme Judicial Court and to prescribe the manner of procedure in s uch courts . See Opinion of the Justic es , 372 Mass. 883, 901

- 904 (1977). See also Charles C. v. Commonwealth , 415 Mass. 58, 64 (1993) , quoting from Johnson v. Commonwealth , 409 Mass. 712, 716 (1991) (" It is a first principle that the jurisdictions of the

s everal lower courts of this Commonwealth, and therefore their powers, are limited to those granted by the Constitution of the Commonwealth or by the Legislature "); Commonwealth v. Pyles , 423 Mass. 717 , 722 (1996) ("As an examination of the various provisio ns of G. L. c. 277 and 278 discloses, the Legislature also may establish and define methods of criminal practice and procedure"); Commonwealth v. Tim T ., 437 Mass. 592, 59 4

- 59 5 (2002) (in disposing of a juvenile case, judge may not disregard restrictions i mposed by legislation)

.15

Accordingly, the judgments are vacated , the verdicts are set

aside, and the indictments are dismissed

. 15

So ordered

.

15 Nothing we have said should be understood as expressing the opinion that the Commonwealth cannot at this time proceed against the defendant by a juvenile complaint. Indeed, when asked the question at oral argument, counsel fo r the defendant conceded that he was not aware of any basis for a double jeopardy claim in view of the jurisdictional defect.