NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11856
COMMONWEALTH vs. MATTHEW A. MOGELINSKI.
Franklin-Hampshire. September 8, 2015. - November 13, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Juvenile Court, Jurisdiction, Delinquent child. Jurisdiction,
Juvenile Court, Juvenile delinquency proceeding, Transfer
hearing. Practice, Criminal, Juvenile delinquency
proceeding, Transfer hearing, Nolle prosequi. Youthful
Offender Act. Delinquent Child.
Complaint received and sworn to in the Franklin and
Hampshire Counties Division of the Juvenile Court Department on
February 4, 2014.
A motion to dismiss was heard by Judith J. Phillips, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
John T. Ouderkirk, Jr., for the defendant.
LENK, J. In this case, we address an issue precipitated by
our decision in Commonwealth v. Mogelinski, 466 Mass. 627 (2013)
2
(Mogelinski I). There, we decided, among other things, that the
Juvenile Court did not have jurisdiction over youthful offender
indictments, G. L. c. 119, § 54, that issued after the
defendant's eighteenth birthday, notwithstanding the prior
existence of timely filed delinquency complaints, involving much
the same facts, on which nolle prosequi was subsequently
entered. In the wake of our decision, the youthful offender
indictments were dismissed. The Commonwealth thereafter filed,
in the Juvenile Court, a delinquency complaint essentially
identical to those where nolle prosequi was previously entered
in order to seek a transfer hearing. See G. L., c. 119, § 72A.
The question before us is whether the Juvenile Court has
jurisdiction to proceed on the basis of the newly filed
complaint. We conclude that it does.
1. Background and prior proceedings. On May 10, 2011,
delinquency complaints were filed against the defendant alleging
two counts of rape of a child under sixteen, G. L. c. 265, § 23,
and three counts of indecent assault and battery of a child
under fourteen, G. L. c. 265, § 13B. The defendant was then
less than two weeks shy of his eighteenth birthday.1
1
In 2013, after Commonwealth v. Mogelinski, 466 Mass. 627
(2013) (Mogelinski I), was argued, the Governor signed St. 2013,
c. 84, "An act expanding juvenile jurisdiction," which amended
various provisions of G. L. c. 119. The act confers
jurisdiction on the Juvenile Court over cases where the alleged
offense was committed up to the point of a defendant's
3
A summons issued on May 11, 2011, ordering the defendant to
appear in the Juvenile Court on May 31, 2011. Between the date
the summons issued and the date of the court appearance, the
defendant turned eighteen. The defendant appeared in Juvenile
Court on May 31, 2011, and was duly arraigned on the delinquency
complaints.
In December, 2011, the Commonwealth sought youthful
offender indictments against the defendant pursuant to G. L.
c. 119, § 54, on the basis of a subset of the acts that were the
subject of the complaints, i.e., those offenses alleged to have
occurred after the defendant had turned fourteen. The basis of
the May, 2011, complaints was the defendant's alleged sexual
abuse of the victim over a seven-year period, from August, 2001,
until December, 2008, when the defendant was between eight and
fifteen years old. The December, 2011, youthful offender
indictments alleged that the offenses occurred between May 23,
2007, and December 31, 2008, when the defendant was between
fourteen and fifteen years old. See Mogelinski I, supra at 642
n.9. The Commonwealth sought the indictments, which would have
kept proceedings in the Juvenile Court, prior to our decision in
Commonwealth v. Nanny, 462 Mass. 798, 801-806 (2012) (Nanny),
eighteenth, rather than seventeenth, birthday. As in
Mogelinski I, we analyze the case under the statutory scheme as
it existed at the relevant times prior to this amendment. See
id. at 630, 631 nn.3,4.
4
clarifying that such youthful offender indictments could not be
returned after a defendant's eighteenth birthday.
After the indictments were returned on December 5, 2011,
the Commonwealth entered nolle prosequi on all of the
delinquency complaints. The defendant then moved unsuccessfully
to dismiss the indictments, arguing that the Juvenile Court had
no jurisdiction to proceed on indictments issued after his
eighteenth birthday. On reported questions following the denial
of that motion, we concluded in Mogelinski I, supra at 646, that
the Juvenile Court did not have jurisdiction over youthful
offender indictments returned after the defendant's eighteenth
birthday, notwithstanding the prior existence of timely filed
juvenile delinquency complaints, brought on much the same facts,
on which nolle prosequi previously entered. The youthful
offender indictments were thereafter dismissed.
In January, 2014, acting pursuant to G. L. c. 119, § 72A,
the Commonwealth brought a new complaint in the Juvenile Court
against the then twenty year old defendant. Like the 2011
juvenile delinquency complaints, the 2014 complaint charged the
defendant with two counts of rape of a child under sixteen,
G. L. c. 265, § 23, and three counts of indecent assault and
battery on a child under fourteen, G. L. c. 265, § 13B.
Before arraignment, a Juvenile Court judge granted the
defendant's motion to dismiss the complaint for lack of
5
jurisdiction, essentially on the basis that the defendant's
prior apprehension on the 2011 complaints precludes compliance
with one of the prerequisites for proceeding under G. L. c. 119,
§ 72A, i.e., that the defendant "is not apprehended until after
his . . . eighteenth birthday." The Commonwealth appealed, and
we transferred the case to this court on our own motion.
2. Discussion. The Commonwealth contends that the judge
did not have authority to dismiss the complaint before the
defendant's arraignment, and that the Juvenile Court in fact had
jurisdiction over the defendant to proceed on the 2014
complaint. We consider each claim in turn.
a. Dismissal prior to arraignment. In Commonwealth v.
Humberto H., 466 Mass. 562, 575 (2013) (Humberto H.), we held
that,
"[w]here, as here, a juvenile files a motion to
dismiss a complaint before arraignment based on the absence
of probable cause, and where a judge, after reviewing the
'four corners' of the complaint application, concludes that
there is a substantial likelihood that the motion is
meritorious, a judge does not abuse his discretion in
deciding to hear and rule on that motion before arraignment
to protect the child from the potential adverse
consequences of a [Court Activity Record Information
database] record."
The Commonwealth urges us to limit the motions to dismiss that
permissibly may be heard by a Juvenile Court judge before
arraignment to those based on the absence of probable cause.
However, given our analysis in Humberto H., supra, we discern no
6
good reason to preclude the judge from exercising discretion
where, as here, the judge determines that there is no
jurisdiction based on the record before her.
b. Availability of a transfer hearing. The Juvenile Court
is a court of limited jurisdiction, which "has no . . .
authority in the absence of a specific statutory authorization."
Commonwealth v. A Juvenile, 406 Mass. 31, 34 (1989). As we said
in Mogelinski I, supra at 630-631,
"In general, the Juvenile Court has jurisdiction over
children between the ages of seven and seventeen who are
alleged to have committed an offense (other than murder)
prior to their seventeenth birthday. G. L. c. 119,
§§ 52, 74. The Juvenile Court also retains jurisdiction
over children who turn eighteen while their cases are
pending, in order to adjudicate 'all remands and retrials
following appeals from their cases, or during continuances
or probation, or after their cases have been placed on
file, or for any other proceeding arising out of their
cases.' G. L. c. 119, § 72 (a) (where proceeding commenced
via delinquency complaint). G. L. c. 119, § 72 (b) (where
proceeding commenced via youthful offender indictment)."
(Footnote omitted.)
However,
"[w]hile 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." (Footnote
omitted.)
Mogelinski I, supra at 632.
7
Pursuant to the version of G. L. c. 119, § 72A, at issue in
this case,2 all defendants who meet two statutory predicates
(commission of offense prior to seventeenth birthday and
apprehension after eighteenth birthday) are to be afforded the
protections of a transfer hearing. See Mogelinski I, supra at
644-645. There is no dispute as to the first statutory
predicate. The question before us as to the Juvenile Court's
jurisdiction over the 2014 complaint rests on whether the second
predicate was met, i.e., whether the defendant was "not
apprehended until after his eighteenth birthday." G. L. c. 119,
§ 72A.
In Mogelinski I, supra at 634-635, we held for purposes of
G. L. c. 119, §§ 72 and 72A, that apprehension occurs upon
commencement of process, provided the defendant is available to
2
The pre-2013 version of G. L. c. 119, § 72A, provided in
relevant part:
"If a person commits an offense or violation prior to
his seventeenth birthday, and is not apprehended until
after his eighteenth birthday, the [Juvenile 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
. . . ."
8
the court.3 Commencement of process is in this context
ordinarily achieved by the issuance of a summons, which serves
as a notification of the pending charges. Mogelinski I, supra
at 635. Insofar as G. L. c. 119, § 72A, required that the
defendant not be "apprehended until after his eighteenth
birthday," and the defendant here was summonsed on the 2014
complaint when he was twenty years old, the second statutory
predicate would appear to be satisfied. The defendant, however,
maintains that his apprehension in 2011 on identical complaints
where nolle prosequi have been entered precludes the
apprehension contemplated by G. L. c. 119, § 72A, either because
that section contemplated that the first apprehension on the
charged offenses occur only after the defendant has turned
eighteen, or because the 2014 complaint is in reality a
continuation of the 2011 complaints on which apprehension
occurred before his eighteenth birthday. For the reasons that
follow, neither contention is correct, and we conclude that the
Juvenile Court has jurisdiction over the 2014 complaint.
"[A] statute must be interpreted according to the intent of
the Legislature ascertained from all its words construed by the
3
This definition departs from the colloquial use of
"apprehend," in which "the word . . . ordinarily is used to
indicate a physical arrest." Mogelinski I, supra at 634. The
ordinary use, however, "is inapt in the juvenile setting, given
that the statute discourages the use of arrest warrants and
instead directs courts to issue summonses in the vast majority
of cases." Id.
9
ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers may be
effectuated." Commonwealth v. Clark, 472 Mass. 120, 129 (2015),
quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934). "[T]he
meaning of a statute . . . must, in the first instance, be
sought in the language in which the act is framed, and if that
is plain, . . . the sole function of the courts is to enforce it
according to its terms." Commonwealth v. Ventura, 465 Mass.
202, 208 (2013), quoting Commonwealth v. Boe, 456 Mass. 337, 347
(2010).
The plain language of G. L. c. 119, § 72A, requires a
transfer hearing where a defendant is "not apprehended until
after his eighteenth birthday." G. L. c. 119, § 72A. The
statute contains no language even suggesting that the adult
apprehension, i.e., summons, must be the first and only
apprehension on the offense charged. See Commonwealth v. One
1980 Volvo Automobile, 388 Mass. 1014, 1015-1016 (1983) ("We are
not free simply to add language to a statute for the purpose of
interpreting the statute according to the Legislature's
perceived objectives" [quotation, alterations, and citation
omitted]).
10
Indeed, in Mogelinski I, supra at 643, we recognized that
more than one apprehension had taken place with respect to the
2011 complaints and youthful offender indictments, which charged
the same offenses but involved different time frames. We went
on to say that a transfer hearing is the exclusive means of
proceeding against a defendant apprehended after his eighteenth
birthday. Id. This is true, we said, even if the defendant had
been previously apprehended before turning eighteen on
complaints rooted in the same facts:
"The statute clearly prescribes that a specific
procedure, the transfer hearing pursuant to G. L. c. 119,
§ 72A, take place when a defendant who is over the age of
eighteen is apprehended, and makes no provision that the
time of apprehension on [the new charges] relates back to
the time of apprehension on [the earlier] complaint."
Id. Also, albeit only in dicta, both the court and the
dissenting justices contemplated that a transfer hearing would
be available in the defendant's case. See id. at 638; id. at
650 (Gants, J., concurring in part and dissenting in part). The
court observed that, if the youthful offender indictments in
question were determined to be invalid, as they were, the
Commonwealth would be able to proceed "in such circumstances
only by the filing of a delinquency complaint, followed by a
transfer hearing pursuant to G. L. c. 119, § 72A." Id. at 638.
The defendant, however, maintains that there was in reality
no apprehension on the 2014 complaint because the complaint,
11
being merely a continuation or revival of the 2011 complaints,
has no independent status. His "apprehension" in reality
happened in 2011, when he was underage. This contention relies
on the assumption that the 2011 complaints -- and the
apprehension they occasioned -- were not extinguished when the
Commonwealth entered nolle prosequi on them in 2011 and 2012
after youthful offender indictments were returned. The
defendant maintains in this regard that entry of nolle prosequi
merely "puts those charges to sleep," but does not extinguish
them in the same way a dismissal would.
This argument fails since, under our jurisprudence, entry
of nolle prosequi is the equivalent of a dismissal. See Mass.
R. Crim. P. 16, 378 Mass. 885 (1978) (in rule governing
"dismissal by the prosecution," section on "entry of a nolle
prosequi"). See, e.g., Commonwealth v. Brandano, 359 Mass. 332,
335 (1971) (describing entry of nolle prosequi as "a dismissal
[that] is made with the approval of the Commonwealth [in which]
the judge in effect merely concurs in a recommendation of the
prosecution which is exercising its authority as part of the
[e]xecutive [b]ranch of government"); Commonwealth v. Aldrich,
21 Mass. App. Ct. 221, 224-225 (1985) (equating "dismissal" and
"nolle prosequi" for purposes of double jeopardy analysis). See
also Commonwealth v. Miranda, 415 Mass. 1, 5-6 (1993) (holding
that entry of nolle prosequi dismisses charges, rather than
12
merely making them dormant, such that prosecution can reinstate
charges only by filing them anew, and may not simply revive
them).4 For this reason, we observed in Mogelinski I, supra
at 639, and reiterate here, that when "nolle prosequi is . . .
entered on a complaint," that "complaint is extinguished." Any
subsequent indictment or complaint, even on the same facts,
"opens a new case," id., which requires a new and independent
apprehension.5
4
Commonwealth v. Deheny, 466 Mass. 723 (2014) (Deheny), is
not to the contrary. In that case, "we recognize[d] a relevant
distinction between a judicial dismissal and an entry of a nolle
prosequi. A nolle prosequi is a strategic decision by the
Commonwealth to cease pursuing charges. Its entry is thus an
affirmative exercise of a prosecutorial tool to discontinue
prosecution. . . . In contrast, a judicial dismissal, even one
without prejudice, signals that the Commonwealth has not met its
prosecutorial burden." (Citation omitted.) Id. at 734. This
distinction, however, relates only to whether the dismissal was
initiated by the prosecution or by the judge, relevant in Deheny
to determine responsibility in connection with a speedy trial
analysis, and does not speak to the legal effects of dismissals
and entries of nolle prosequi.
5
We hasten to add, however, that the Commonwealth's power
to recharge a defendant after it had earlier entered nolle
prosequi on identical charges is by no means unlimited. The
Commonwealth may not delay a proceeding in a juvenile matter
merely so that it may recharge a defendant after he or she has
turned eighteen, and then seek a transfer hearing. This would
violate the Commonwealth's obligation to act in good faith. See
Mogelinski I, supra at 646 & n.11 (noting that, where
Commonwealth waits until after defendant's eighteenth birthday
and seeks transfer hearing, "it bears the burden of
demonstrating the absence of bad faith or inexcusable delay in
failing to obtain a timely youthful offender indictment" or
juvenile delinquency charge).
13
We are confirmed in our view that, given its raison d'être,
G. L. c. 119, § 72A, confers jurisdiction in circumstances
where, as here, a defendant otherwise would face no possibility
of prosecution for the offenses in question. The transfer
procedure "was created to address the circumstance in which a
juvenile offender has 'aged out' of the Juvenile Court's
jurisdiction." Nanny, supra at 806. "We will not impose an
overly narrow or artificial construction on a statute that would
frustrate a grant of jurisdiction that the Legislature clearly
intended." Commonwealth v. Porges, 460 Mass. 525, 532 (2011)
(Porges). See Nanny, supra at 805 (noting that, "[h]ad the
Legislature intended to eliminate the requirement of a § 72A
transfer hearing" in particular context, "it could have done so"
explicitly when it rewrote statute in 1996).
In such circumstances, the transfer hearing serves a dual
purpose. On the one hand, it protects the public by ensuring
Moreover, if jeopardy had attached on the first set of
charges, or if the charges were dismissed with prejudice, the
prosecution could not recharge the defendant. Mass. R. Crim.
P. 16 (b), 378 Mass. 885 (1979). See Commonwealth v. Hernandez,
421 Mass. 272, 277 (1995) (discussing circumstances in which
dismissal with prejudice is appropriate). Furthermore, when a
defendant has pleaded guilty to certain charges in consideration
of dismissal of other charges, the prosecutor may not refile the
dismissed charges. Commonwealth v. Benton, 356 Mass. 447, 448
(1969). Additionally, when the Commonwealth recharges a
defendant, the prosecution must go through all the procedures
for the filing of new charges and may not, for example, revive
charges at a moment's notice and send them immediately to trial.
See Commonwealth v. Miranda, 415 Mass. 1, 5-6 (1993).
14
that a defendant will not "fall 'between the cracks' and be free
from prosecution where [he] is apprehended after his eighteenth
birthday." Mogelinski I, supra at 647, quoting Porges, supra at
531. On the other hand, the transfer procedure protects the
defendant by allowing a Juvenile Court judge to dismiss the
charges if the judge finds them unsupported by probable cause or
if the judge is "satisfied that [discharging the defendant] is
consistent with the protection of the public." G. L. c. 119,
§ 72A.
Here, without a transfer hearing, the defendant would face
no possibility of prosecution for the charged offenses in either
adult court or Juvenile Court. This is the very result that the
transfer law seeks to avoid. Our construction, by contrast,
furthers the legislative purpose of ensuring that this defendant
does not "fall 'between the cracks.'" Porges, supra at 531.
This does not mean that the defendant will or should be tried as
an adult. It means only that there is a "possibility of
criminal consequences [if the] Juvenile Court judge [determines]
that the interests of the public require the [defendant] to be
tried for the offense rather than discharged." Id. at 532.
Finally, we made reference in Mogelinski I to this case as
being among "that narrow set of cases where the Commonwealth
wishes to proceed against an individual who is just shy of the
Juvenile Court's jurisdictional age limit." Mogelinski I, supra
15
at 646. Given the clarification of the relevant statutes
provided in Mogelinski I, Nanny, Porges, and here, we anticipate
that, going forward, situations like this will be quite rare.
This is particularly so in light of the Commonwealth's burden to
demonstrate the absence of bad faith or inexcusable delay in
failing to obtain a timely juvenile delinquency complaint or
youthful offender indictment, which would cause the proceedings
to remain in the Juvenile Court. See Mogelinski I, supra at 646
n.11. We note that, while the defendant asserts without
explanation that the Commonwealth acted in bad faith in filing
the 2014 complaint, we discern no support in the record for any
suggestion that the Commonwealth delayed filing the 2014
complaint in order to prosecute the defendant in adult court.
Judgment reversed.