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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.

Indictments found and returned in the Superior Court 

Department on December 6, 2012.

The cases were 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 the outset of the case. In particular, 
2

he maintains that the case against him was commenced in the 

Juvenile Court Department 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 offense against 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 while between the ages of fourteen and seventeen years 

of age like the ones charged in this case, i.e., offenses 

involving "the infliction or threat of serious bodily harm," and

the juvenile was apprehended prior to turning eighteen years of 

age, the Commonwealth could elect to proceed by means of a 

complaint or seek a youthful offender 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. 

General Laws 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 not 
3

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

Background. On December 23, 2010, the case was commenced 

against the defendant by means of a youthful offender (YO) 

indictment returned by a Middlesex County grand jury.3 A 

 

capable 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 child.

"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 Rules 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. Nanny, 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 transfer the defendant from Juvenile Court to adult 

court, and was the basis of a specific 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. See 

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, while 
4

juvenile complaint was never sought nor issued. Following an 

evidentiary hearing conducted by the Juvenile Court 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 until 2010, after he turned eighteen years of age. 

Based on the probable cause determination, the judge dismissed 

the YO indictment, ordered "the transfer of prosecution" to the 

District Court, and requested issuance of adult criminal 

complaints. On December 6, 2012, a Middlesex County grand jury 

indicted the defendant as an adult on charges of aggravated rape 

of a child (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 view 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 Superior Court, the defendant 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 State prison. On count two the judge imposed a sentence of 

ten years' probation, to be served from and after 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 necessary to commence the case by means of a 

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

document the Juvenile Court lacked the authority to conduct any 

proceedings, including a transfer hearing, and that the Superior 

Court lacked the authority to try the indictments. This 

statement of law is supported by the terms of the applicable 

statutes and by a series of decisions 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 (2014). 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 thereafter 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 charges alleged."

(Emphasis supplied.)

"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 Juvenile 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 so, how the case should proceed." Commonwealth 

v. Porges, 460 Mass. 525, 528 (2011) (Porges).

6

 

6 Later in its opinion in the Porges case, the court 

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

Porges was followed by Commonwealth v. Nanny, 462 Mass. 798

(2012) (Nanny). In Nanny, the court determined that a transfer 

hearing pursuant to § 72A must be held before the Commonwealth 

may seek an indictment pursuant 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 been 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 interests of the 

public require that the defendant be tried for the offenses in 

the usual course of criminal proceedings instead of being

discharged." Porges, 460 Mass. at 532-533 (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 General Laws c. 119, § 54, as amended through St. 1996, 

c. 200, § 2, provides in part that "[t]he commonwealth may 

proceed by complaint in juvenile court or in a juvenile session 
8

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

one who is alleged to have committed offenses when he was 

between fourteen and seventeen 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 court explained that prior to 1996, Massachusetts 

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

was a juvenile at the time an offense was committed, a Juvenile 

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

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

instances, the case against the juvenile began when a Juvenile 

Court 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] 

about 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 offense 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, or 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 if 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. In Nanny, 462 Mass. at 801-802,

the court 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 court 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 by complaint, leaving 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 that trigger § 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 an 
10

Despite the detailed statutory analysis by the Supreme 

Judicial Court in Commonwealth 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 Juvenile Court judge that met the requirements 

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

present 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. 

The court in Nanny rejected this argument. Ibid.

11 In Nanny, 

the court 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 Court 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 Juvenile Court complaint was neither sought nor 

issued. 

11 The court 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 transfer 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 805-806. 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 the 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 court 

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

although Juvenile Court 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 629. 

However, while the delinquency complaints were still pending in 

the Juvenile Court, the Commonwealth obtained YO indictments 
12

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

The delinquency complaints were eventually nolle prossed. Id.

at 630. In Mogelinski, the court 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 

apprehended12 (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 terms of the dispositional options 

available to the judge and the safeguards available to the 

juvenile. Id. at 631-632. The distinctions between the two 

tracks are significant.13 However, once the person turns 

eighteen before he is first apprehended (as in 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." Mogelinski, 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 individual is 

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

Commonwealth is not precluded from prosecuting individuals who 

are 'apprehended' after their eighteenth birthdays for offenses 

committed prior to turning seventeen. See G. L. c. 119, § 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 complaint 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 is supplied by the 

Supreme Judicial Court in Mogelinski: "Ultimately, 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 Commonwealth v. A 

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

 

14 In Mogelinski, the court added, "If the Legislature had 

disagreed with the result in Commonwealth v. Nanny, supra, and 
14

issuance of a juvenile complaint, the Juvenile Court lacked the 

authority to proceed on a direct indictment of the defendant as 

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

 

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 method 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 Juvenile 

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, . . . from the Legislature." Parents of Two 

Minors v. Bristol Div. of the Juvenile Ct. 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 art. 30 of the 

Massachusetts Declaration of Rights. The Legislature has broad 

authority to define the jurisdiction of courts below the Supreme 

Judicial Court and to prescribe the manner of procedure in such 

courts. See Opinion of the Justices, 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 

several 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 

provisions 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, 594-595

(2002) (in disposing of a juvenile case, judge may not disregard 

restrictions imposed 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 for the defendant 

conceded that he was not aware of any basis for a double 

jeopardy claim in view of the jurisdictional defect.