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SJC

- 1 3271 COMMONWEALTH vs . MIGUEL REMI DONES.

Hampden. December 7, 2022.

– J une 23 , 2023
. Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Youthful Offender Act
. Firearms
. Practice, Criminal , Sentence. Department of Youth Services
. Juvenile Court , Probation. Statute , Construction.

I ndictment found and returned in the Superior Court Department on February 8 , 2021. Following transfer to the Hampden County Division of the Juvenile Court Department, a motion to revise the sentence was heard by David B. Paradis , J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Cynthia Cullen Payne , Assistant District Attorney, for the Commonwealth. Debbie F. Freitas for the defendant
. Sara LoPresti , Committee for Public Counsel Services, for yout h advocacy division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief.

GEORGES , J. At issue in this case is the question whether a Juvenile Court judge may commit a youthful offender to the2

custody of the Department of Youth Services (DYS) until his twenty

- first birthday , and then suspend th at commitment with conditions of probation. We conclude that a judge in the
Juvenile Court ha s such discretion to suspend a commitment in
that manner , and that the judge in this case did not abuse his discretion in doing so. We therefore affirm the denial of the
Commonwealth ' s motion to revise the juvenile's sentence
. 1
1. Background
. During a motor vehicle st op, a State
p olice trooper saw a firearm in plain view in the vehicle driven by the juvenile, who was then seventeen years old. The trooper removed the juvenile from the vehicle and arrested him. The juvenile subsequently was indicted as a youthful offender, see
G. L. c. 119, § 54, on a charge of carrying a firearm without a
license , G. L. c. 269, § 10 ( a ). Because the juvenile's family

was un able to post bail, the juvenile was held at a DYS facility for eight months prior to entering into a plea agreement
. In tendering his plea, the juvenile recommended a continuation without a finding, with supervised probation and a condition that he possess no weapons , until his nineteenth birthday
. T he Commonwealth recommended that the juvenile be found guilty as a youthful offender and sentenced to eighteen

1 We acknowledge the amicus brief submitt ed by the youth advocacy division of the Committee for Public Counsel Services, A ttorney Naoka Carey , and Citizens for Juvenile Justice.3

months in a h ouse of c orrection. After a plea colloquy , the Juvenile Court judge adjudicated the juvenile to be a youthful
offender and ordered him committed to DYS until he rea ched the
age of twenty

- one , pursuant to G. L. c. 119, § 58 ( c ). The judge then suspended the commitment pursuant to G. L. c. 279,
§ 2, with conditions of probation, see G. L. c. 276, § 87, until the day before the juvenile ' s twenty

- first birthday. As required by G. L. c. 119, § 58, fourth par., 2 prior to imposing sentence, the judge conducted a sentencing
recommendation hearing and made a number of finding s . The record shows that the judge considered all of the statutory
factors set out in that paragraph to the extent that they were

2 General Laws c. 119, § 58, fourth par., provides in relevant part : "In making [a] determination [of a youthful offender,] the court shall conduct a sentencing recommendation hearing to determine the sentence by which the present and long

- term public safety would be best protected. At such hearing, the court shall consider, but not be limited to, the following factors: the nature, circumstances and seriousness of the offense; victim impact statement; a report by a probation officer concerning the history of the youthful offender; the youthful offender' s court and delinquency records; the success or lack of success of any past treatment or delinquency dispositions regarding the youthful offender; the nature of services available through the juvenile justice system; the youthful offender's age and maturit y; and the likelihood of avoiding future criminal conduct. In addition, the court may consider any other factors it deems relevant to disposition."4

applicable to the juvenile's offense
. The Commonwealth does not dispute any of the judge's findings.
The judge found that the juvenile lived with his mother, father, and four brothers. He was welcome in th e family home and got along with all of his family members. He had a two year
old ch ild and took an active role in raising that child
. With respect to the juvenile's age and maturity level, the judge
noted that , at eighteen years old, the juvenile enjoyed playing basketball, " hang [ ing ] out " with friends, and playing video games. The jud ge found that even though the juvenile was "immature" for his age , he was young enough that " probation and/ or DYS " would "have time to work with him and assist in his maturing process. " With respect to the eight months that the juvenile spent in

a DYS facility awaiting disposition , the judge found that the juvenile had done very well. The juvenile was able to maintain the highest behavioral level and earned recognition as the "group member of the week" multiple times. T he juvenile met
with his clinici an daily and actively participated in daily psycho

- educational groups, including substance use disorder prevention, interpersonal effectiveness, and "DBT Mindfulness." He did not instigate any problems, and if he was targeted by peers, he was able to expr ess his concerns to staff and to ask5

for help. T he judge also considered the Juvenile Court's policies on d ispositional and s entencing b est p ractices.
Based on his considerations of th e sentencing policies and
all of his findings, the judge determined th at , pursuant to
G. L. c. 119, § 58, the present and long

- term safety of the public would best be served by committing the juvenile to DYS
until he reached the age of twenty

- one, with the commitment suspended and conditions of probation imposed . In addition to the standard conditions of probation, the judge added a number of special conditions : that the juvenile must either obtain employment or work toward a general equivalency diploma; that he
not possess drugs or alcohol and must submit to r andom screens;
and that he not possess firearms or other dangerous weapons.
The Commonwealth then timely moved for a revision of the juvenile's sentence . S pecifically , the Commonwealth challeng ed the judge's decision to suspend the juvenile's commitment to DYS
and to place him on probation
. The judge den i ed the motion, and the Commonwealth appeal ed to the Appeals Court . We transferred
the matter to this court on our own motion
. 2. Discussion
. This case requires us to consider the interplay of four statutes : G. L. c. 119, § 58 , which , inter
alia , sets forth dispositional options for youthful offenders;
G. L. c. 279, § 2 , which generally authorizes a Juvenile Court judge to suspend a juvenile's commitment to DYS; G. L. c. 276,6

§ 87, which generally permit s a judge of certain Trial Court departments, including the Juvenile Court, to place a defendant on probation; and G. L. c. 269, § 10 ( a ), which prescrib e s punishments for unlawful po ssession of a firearm. Whether these
statutes provide a Juvenile Court judge with the discretion to suspend a youthful offender's commitment to DYS , with probation being imposed in lieu of the committed sentence, is a legal
issue that we consider de novo. See, e .g., Commonwealth v. Beverly , 485 Mass. 1, 11 (2020). "As with all matters of statutory construction, our goal in construing [a]
. . . statute is to ascertain and effectuate the intent of the Legislature. " Commonwealth v. Rossetti , 489 Mass. 589, 593 (2022), quoting Commonwealth v. Newberry , 483 Mass. 186, 192 (2019). "[T]he language of the statute [s]
. . . is 'the principal source of insight' into the intent of the Legislature." Id
. "Therefore, we sta rt with the language of
the statute [s themselves] and presume, as we must, that the Legislature intended what the words of the statute [s] say " (quotation s omitted). Ros s etti , supra , quoting Commonwealth v. Williamson , 462 Mass. 676, 679 (2012). I f the legislation is found to be ambiguous , we give the juvenile the benefit of the ambiguity. Commonwealth v. Connor C ., 432 Mass. 635, 642 (2000), citing Charles C
. v. Commonwealth , 415 Mass. 58, 70 (1993).7

We begin with G. L. c. 119, § 58 , a statute that is to " be liberally construed so that the care, custody and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that, as far as practicable, they shall be treated, not as criminals, but as children in need of aid, encouragement and guidance
. " G. L. c. 119, § 53. When a child is adjudicated to be a youthful offender, G. L. c. 119, § 58, requires the sentencing judg e to impose one of three dispositional options: "(a) a sentence provided by law [for the criminal offense charged in the indictment] ; or "(b) a combination sentence which shall be a commitment to the department of youth services until [t he child] reaches the age of twenty

- one, and an adult sentence to a house of correction or to the [S] tate prison as is provided by law for the offense. The adul t sentence shall be suspended pending successful completion of a term of probation, which shall include, but not be limited to, the successful completion of the aforementioned commitment to the department of youth services.
. . . ; or "(c) a commitment to the department of youth services until [t he child] reaches the age of twenty

- one." Otherwise put, p aragraph ( a ) authorizes the judge to impose the most severe option, namely, "the punishment the child would
receive were [t he child] an adult"; paragraph ( b ) authorizes an
intermediate "combination sentence "; and paragraph ( c ) , "the least severe option," authorizes a commitment to DYS until the
child reaches the age of twenty

- one . Connor C ., 432 Mass. at
638.8

Here, t he judge determined tha t, given all of the circumstances, the least severe option , commitment to DYS, was appropriate. The Commonwealth does not contest the judge's decision to commit the juvenile to DYS pursuant to G. L. c. 119,
§ 58 ( c ), instead of imposing a more severe adul t or combination
sentence under G. L. c. 119, § 58 ( a ) or ( b ). Rather, the
Commonwealth takes issue with the judge's decision to suspend
the commitment to DYS and to place the juvenile on probation
. As the Commonwealth points out, nothing in G. L. c. 119,
§ 58 , expressly authorizes such a disposition
. At the same time, however, nothing in the language of that section prohibits a judge from suspending a commitment to DYS that has been imposed upo n a y outhful offender pursuant to G. L. c. 119,
§ 58 ( c ). By contrast, G. L. c. 119, § 58 , seventh par . , 3 expressly prohibit s the suspension of a commitment to DYS

3 General Laws c. 119, § 58, seventh par., provides: "Notwithstanding any other provisions of this chapter, a person adjudicated a delinquent child by reason of a violation of [G. L. c. 269, § 10 ( a ), ( c ), or ( d ), or G. L. c. 269, § 10E], shall be committed to the custody of the commissioner of youth services who shall place such child in the custody of a facility supported by the [C] ommonwealth for the care, custody and training of such delinquent children for a period of at least [180] days or until such child attains his eighteenth birthday or his nineteenth birthday in the case of a child whose case is disposed of after he has attained his eighteenth birthday, whichever first occurs, provided, however, that said period of time shall not be reduced or suspended " (emphasis added).9

imposed on a juvenile who has been adjudicated a delinquent child by reason of a violation of, inter alia , G. L. c. 269,
§ 10 ( a ) , the provision under which the juvenile here was
convicted as a youthful offender . We held in Connor C ., 432
Mass. at 645, that the seventh paragraph of G. L. c. 119, § 58 , by its plain language , applies only to delinquent children and not to youthful offenders. Accordingly, t his provision d oes not deprive a judge of the authority to suspend a youthful
offender's commitment to DYS. Moreover, the fact that the Legislature expressly prohibit ed th e suspension of a delinquent
child's commitment to DYS shows that it knew how to preclude suspension of a commitment to DYS if it chose to do so
. In the nearly twenty

- three years since this court 's dec ision in
Connor C ., the Legislature has not seen fit to do so with respect to youthful offenders
. Cf. DiMasi v. Secretary of the
Commonwealth , 491 Mass. 186, 19 7 (2023), quoting Casseus v.
Eastern Bus Co ., 478 M ass. 786, 796 (2018) ( if Legislature had
inten ded different meaning from how statute was written, then "the wording of the statute could have easily reflected [the Legislature’s intent] " ).
T he Commonwealth argues that because G. L. c. 119,
§ 58 ( b ), authorizes a Juvenile Court judge to suspend the adult portion of a combination sentence, the Legislature could have
also authorize d the suspension of a commitmen t to DYS in G. L.10

c. 119, § 58 ( c ), but chose not to do so . We d o not agree.
General Laws c. 119, § 58 ( b ), does not bestow on a judge discretionary authority to decide whether to suspend the adult portion of such a sentence; the provision rather requires that "[t]he adult sentence shall be suspended pending successful completion of a term of probation, which shall include, but not
be li mited to, the successful completion of the aforementioned
commitment to" DYS until the juvenile reaches the age of twenty

one (e mphasis added). T hat a judge is required to suspend the adult portion of a combination sentence under G. L. c. 119,
§ 58 ( b ) , s ays nothing about a judge's discretion to suspend a
commitment to DYS under G. L. c. 119, § 58 ( c )
. At first glance, it might appear incongruous to conclude that where a juvenile violates G. L. c. 269, § 10 ( a ), the
commitment to DYS may not be suspended if the juvenile is adjudicated a delinquent child, but may be suspended if the juvenile is found to be a youthful offender. T he Legislature , however, rationally could require a delinquent child to serve
out a commitment to DYS until the child reaches the age of eighteen (or, in some cases, nineteen) while permitting judges
to decide to suspend the longer commitment of a youthful
offender until the age twenty

- one. "[I]t is evident from the Legislature's over

- a ll approach to the sentencing of youthful offenders that it intended to give11

the sentencing judge wide latitude in fashioning a sentence that best serves the needs of the community and the youthful
offender." Commonwealth v. Lucret , 58 Mass. App. Ct. 624, 629 (2003). Moreover, the Legislature presumably has been aware, at
least since our decision in Connor C ., 432 Mass. at 638, 645

- 646, that G. L. c. 119, § 58, seventh par., applies only to delinquent children , and not to youthful offenders , and it has
not chosen to amend that provision
. "We do not read into the statute a provision which the Legislature did not see fit to put there, nor add words that the Legislature had an option to, but
chose not to include." Commonwealth v. Williams , 48 1 Mass. 799,
807

- 808 (2019), quoting Commissioner of Correction v. Superior Court Dep ' t of the Trial Court for the County of Worcester , 446 Mass. 123, 126, (2006). In addition, we note that certain o ther statutes expressly provide a Juvenile Court judge the authority to suspend a
commitment to DYS and then to impose probation. In particular,
G. L. c. 279, § 2, provides: "In all cases the execution of orders of commitment to any training school or reformatory, however named , the department of youth services, or the department of public welfare may be suspended, and such suspension continued or revoked, in the same manner and with the same effect as the execution of sentences in criminal cases."
This provision , by its plain terms, authorizes a Juvenile Court judge to suspend an order committing a juvenile to DYS "[i]n all12

cases." Contrary to the Commonwealth's argument, we do not read the final phrase of G. L. c. 279, § 2

-- "in the same manner and
with the same effect as the execution of sentences in criminal
cases"

-- as limiting a judge's authority to suspend a
commitment to DYS only in instances where an ordinary criminal sentence could be suspended
. The statutory langua ge provides that a commitment to DYS may be suspended " in the same manner and with the same effect " as a criminal sentence, not that it may be suspended in the same
circumstances as a criminal sentence (emphasis added)
. G. L.

c. 279, § 2
. In other words, the provision simply analogizes the suspension of a DYS commitment to the suspension of a
criminal sentence , without limiting the judge's authority to suspend the DYS commitment by any restrictions on suspension
that are enumerated in the criminal statute
. 4 In construing the provision in this manner , we are mindful that juvenile justice laws "shall be liberally construed , " and that " [ p ] roceedings against children under said sections shall not be d eemed

4 General L aws c. 279, § 2, authorize s a Juvenile Court judge to suspend a DYS commitment in all cases, except, of course, where a suspension of a DYS commitment is specifically prohibited. As discussed supra , such a prohibition does not exist for the cases of juveniles adjudicated as youthful offenders for violations of G. L . c. 269, § 10 ( a )
.13

criminal proceedings." G. L. c. 119, § 53. 5 Restricting juvenile sentencing, even for youthful offenders, to adult sentencing provisions , would be contrary to the plain statutory language, as well as the Legislature's intent in adopting this provi sion
. See Con n or C ., 432 Mass. at 641

- 642 (noting that language of G. L. c. 119, § 53 , "does not label a 'youthful offender' proceeding as 'criminal' " ). See also Commonwealth v.
Anderson , 461 Mass. 616, 6 3 0, cert. denied, 568 U.S. 946 (2012) (" a n adjudication of a juvenile as a youthful offender
. . . does not transform [the juvenile's] illegal act from an act of delinquency into a crime"). I f the Legislature had intended to
limit a judge's authority in the manner the Commonwealth

5 "Independent of the rule of lenity, we have said that interpreting an ambiguous statute against a juvenile would conflict with the statutory command of G. L. c. 119, § 53." Commonwealth v. Samuel S ., 476 Mass. 497, 506 (2017), citing Commonwealth v. Hanso n H ., 464 Mass. 807, 810

- 813 (2013). General L aws c. 119, § 53 , "requires a liberal construction of the juvenile justice laws in order to ensure that juveniles who commit offenses are ' treated [] not as criminals, but as children in need of aid, encouragem ent, and guidance.'" Samuel S
. , supra , quoting G. L. c. 119, § 53. To be sure, G. L. c. 119, § 53, mandates that liberal construction shall apply to G. L. c. 119, §§ 52

- 63, and G. L. c. 279, § 2, is not included within t hose sections
. However, this cas e requires us to consider G. L. c. 279, § 2, a provision concerning the suspension of sentences to DYS, in light of our interpretation of G. L. c. 119, § 58, and other juvenile justice statutes. Therefore, the command of G. L. c. 119, § 53 , is instructive here. See Samuel S ., 476 Mass. at 506
.14

suggests , then it would have done so in plain and unambiguous language. In determining whether the juvenile's sentence was permissible, we also must consider the effect of certain language in G. L. c. 269, § 10 ( a ). General Laws c. 269,
§ 10 ( a ), first par., which pro hibits unlawful possession of a firearm, provides that a person who violates it shall be punished by a minimum term in State prison or in a house of correction, and that "[t]he sentence imposed on such person shall not be reduced to less than [eighteen] mo nths, nor suspended." This language plainly precludes a judge from suspending an adult offender's committed sentence to less than a period of eighteen months. Two paragraphs later, the provision
states: "The provisions of [G. L. c. 276, § 87 , 6 ] shall not apply
. . . to any child between ages fourteen and [eighteen] so charged, if the court is of the opinion that the interests of the public require that [t he child] should be tried as an adult for such offense instead of being dealt with as a chil d."
G. L. c. 269, § 10 (a) (6), third par.

6 General Laws c. 276, § 87, permits a Juvenile Court judge to place "on probation in the care of [the court ' s] probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant's consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty."15

Reading the paragraphs of G. L. c. 269, § 10 (a) (6), in harmony with one another, see Hovagimian v. Concert Blue Hill,
LLC , 488 Mass. 237, 241 (2021), we conclude that the statutory language in no way prohibits a Juvenile Court judge from suspending a youthful offender's commitment to DYS. While there is such a prohibition for juveniles adjudicated delinquent for
violations of G. L. c. 269, § 10 ( a ) , h ere, the Juvenile Court judge sentenced the defendant as a y outhful offender under the "least severe" option under G. L. c. 119, § 58

-- commitment to
DYS. Connor C ., 432 Mass. at 638. We again note that the declared policy of G. L. c. 119, § 53, is that the "operative provisions of the [juvenile sentencing] stat utes shall be liberally construed to require rehabilitative 'aid, encouragement and guidance' rather than criminal dispositions
for children who offend." Id
. at 641 ("the provisions of the 1996 amendments [to the juvenile sentencing provisions of G. L.

c. 119, §§ 52

- 63 , ] did not eviscerate the longstanding principle
that the treatment of children who offend our laws are not criminal proceedings"). Accordingly, a judge's determination that a juvenile should be sentenced as a youthful offender under G. L. c. 119, § 58, does not amount to an adjudication of the juvenile in a criminal proceeding that would implicate adult sentencing requirements.
See Connor C ., 432 Mass. at 646 (" a n 'adjudication' that a child16

has violated a law generally is not a 'co nviction' of a crime"). Here, the judge was not bound by the language in G. L. c. 269,
§ 10 ( a ) , that prohibited suspended sentences for "any person
convicted under [that] subsection ." 7 Cf
. , Commonwealth v. Hanson
H ., 464 Mass. 807, 813

- 814 (2013) (for purposes of sentencing statute, phrase "[a]ny person" did not include juveniles, but only adults, due to "the inherent differences between juvenile and adult offenders"). As a result, the judge was within his discretion in suspending the juvenile 's commit ment pursuant to
G. L. c. 276, § 87. In so holding, we bear in mind that the ultimate "goal of our juvenile system is to act in the best interests of children by encouraging and helping them to become
law

- abiding and productive members of society, and not to label
and treat them as criminals." Connor C ., supra .

7 Nor does the language in G. L. c. 269, § 10 ( a ), third par., apply. Th at paragraph prohibits a judge from placing a juvenile aged fourteen to eighteen, who has been charged with a violation of § 10 ( a ) , on probation before or after a trial or before a guilty plea, where the "court is of the opinion that the interests of the public require that [the juvenile ] should be tried as an adult for such offense instead of being dealt with as a child." Under the youthful offender regime created by the 1996 legislation, a juvenile proceeded against as a youthful offender and sentenced under G. L. c. 119, § 58 ( c ), is still considered a child within the juvenile justice system, not an adult. See St. 1996, c. 200, §§ 2, 7; G. L. c. 119, § 53 (" P roceedings against children under said sections shall not be deemed criminal proceedings"). Thus , a judge is not statutor il y bar red from placing on probation a juvenile who has been adjudicated as a youthful offender and sentenced to the least severe sentencing option for a firearms charge.17

3. Conclusion
. The order denying the Commonwealth ' s motion to revise the juvenile's sentence is affirmed.
So ordered
.