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revision and are superseded by the advance sheets and bound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
16-P-1645 Appeals Court
COMMONWEALTH vs. COLE C., a juvenile. 1
No. 16-P-1645.
Suffolk. November 8, 2017. - January 19, 2018.
Present: Milkey, Blake, & Singh, JJ.
Juvenile Court, Jurisdiction. Jurisdiction, Juvenile
Court. Youthful Offender Act. Practice, Criminal,
Indictment, Transfer hearing. Statute, Construction.
Indictments found and returned in the Superior Court
Department on July 5, 2016.
After transfer to the Suffolk County Division of the
Juvenile Court Department, a motion to dismiss was heard
by Peter M. Coyne, J.
Colby M. Tilley, Assistant District Attorney (Michael V.
Glennon, Assistant District Attorney, also present) for the
Commonwealth.
Melissa Allen Celli for the defendant.
MILKEY, J. A grand jury indicted the defendant as a
youthful offender after he had turned eighteen years old.
Relying on Commonwealth v. Mogelinski, 466 Mass. 627 (2013)
1
A pseudonym.
2
(Mogelinski I), a Juvenile Court judge dismissed the indictments
for want of jurisdiction. For the reasons that follow, we
reverse and order that the indictments be reinstated.
Background. The relevant facts are undisputed. On April
20, 2016, Boston police arrested the defendant on a variety of
charges related to an armed home invasion that occurred that
day. He was seventeen years old at that time. After his
arrest, the police took him to a Department of Youth Services
(DYS) facility. The following day, a twelve-count delinquency
complaint was issued, and a second delinquency complaint that
included two additional charges was issued a day later. The
defendant was arraigned on April 25, 2016, and two days after
that (one week after the alleged incident), he turned eighteen.
On July 5, 2016, a grand jury indicted the defendant as a
youthful offender on five charges: armed home invasion, armed
robbery, assault with a dangerous weapon, unlawful possession of
a firearm, and intimidation of a witness. The indictments were
filed with the Juvenile Court on July 11, 2016, and the case was
continued to July 26, 2016, for arraignment. However, a
Juvenile Court judge refused to arraign the defendant on the
youthful offender indictments on the grounds that -- because the
defendant had turned eighteen prior to the issuance of the
indictments -- the court lacked jurisdiction over them. The
judge also denied alternative relief that the Commonwealth
3
requested, the holding of a transfer hearing pursuant to G. L.
c. 119, § 72A, in order that the defendant might be tried as an
adult. The Commonwealth filed a motion to reconsider; the judge
denied that motion and allowed the defendant's oral motion to
dismiss the indictments, issuing a memorandum and order
explaining his rulings.
Meanwhile, the defendant remained committed to the DYS
facility until his release on bail in October. The delinquency
complaints remain pending, but those proceedings have been
stayed. 2
Discussion. 1. The scope of the appeal. We begin by
noting that the Commonwealth acknowledges on appeal that the
alternative relief it requested in the Juvenile Court, the
holding of a G. L. c. 119, § 72A, transfer hearing, has no
application to this case. By its express terms, § 72A now
applies to juveniles who are apprehended after they turn
nineteen. G. L. c. 119, § 72A, as amended by St. 2013, c. 84,
§ 23. See Mogelinski I, supra at 632 n.4 (noting that as a
result of the 2013 amendments, "the Commonwealth may seek a
transfer hearing if an individual is apprehended after the age
2
One of the delinquency dockets indicates that a judge
allowed the Commonwealth's motion for a stay over the
defendant's objection. The other docket appears to show that
the Commonwealth's motion for a stay formally remains under
advisement; in any event, that case too apparently has been
stayed informally in the interim.
4
of nineteen, for conduct allegedly committed prior to his or her
eighteenth birthday"). See also Commonwealth v. Mogelinski, 473
Mass. 164, 167-170 (2015) (Mogelinski II). Although the parties
disagree on exactly when the juvenile here should be deemed to
have been apprehended, they agree that, in any event, he was
apprehended before he turned nineteen. Because the § 72A
transfer hearing process has no application to this case, the
appeal before us is limited to whether the Juvenile Court had
jurisdiction over the youthful offender indictments.
2. The import of Mogelinski I. In finding no
jurisdiction, the judge relied on Mogelinski I. Overall, the
setting of that case is indeed quite similar to the one before
us. Like the present case, Mogelinski I involved someone who --
when he turned eighteen -- was already subject to a pending
delinquency complaint but had not yet been indicted as a
youthful offender. 3 Id. at 629-630. The court held that
youthful offender indictments cannot be issued against an
3
Delinquency complaints and youthful offender indictments
present alternative paths for prosecuting juveniles in Juvenile
Court. These two paths differ significantly as to the
procedures that apply and the potential sanctions that can be
imposed. Youthful offender indictments may be pursued "for
specific types of violent offenses or where the individual
previously had been adjudicated delinquent and was between the
ages of fourteen and seventeen [now eighteen, see G. L. c. 119,
§ 54, as amended by St. 2013, c. 84, § 8] at the time of the
offense." Mogelinski I, supra at 631. The youthful offender
provisions were enacted in 1996 in "response to societal
concerns about violent crimes committed by juveniles."
Commonwealth v. Clint C., 430 Mass. 219, 222-223 (1999).
5
individual once he or she turns eighteen, regardless of whether
a delinquency complaint was pending at that time. 4 Id. at 637.
Thus, Mogelinski I on its face supports the proposition on which
the judge relied, namely that eighteen year olds cannot be
indicted as youthful offenders.
However, an understanding of the continuing import
of Mogelinski I needs to take into account the fact that in
2013, the Legislature expanded the Juvenile Court jurisdiction
by increasing by one year the age at which juveniles could be
prosecuted there. See St. 2013, c. 84 (effective September 18,
2013). Under the 2013 amendments, the statute now "confers
jurisdiction on the Juvenile Court over cases where the alleged
offense was committed up to the point of a defendant's
eighteenth (rather than seventeenth) birthday." Mogelinski I,
466 Mass. at 630. Although this statutory change took place
before Mogelinski I was issued, the court applied "the statutory
scheme as it existed at all relevant times prior to this
amendment." Ibid. The question we face is how to apply the
points of law enunciated in Mogelinski I to the statute as
amended.
4
A four-judge majority rejected the Commonwealth's argument
that the youthful offender indictments effectively were a
continuation of the delinquency proceedings. Mogelinski I,
supra at 643.
6
While the Juvenile Court's jurisdiction has been expanded
from time to time, it remains a court of limited jurisdiction.
Accordingly, the court "'has no . . . authority in the absence
of a specific statutory authorization.'" Mogelinski II, supra
at 167, quoting Commonwealth v. A Juvenile, 406 Mass. 31, 34
(1989). We therefore must focus on the specific language of
G. L. c. 119, § 72, the statutory provision that most directly
speaks to the continuing jurisdiction of the Juvenile Court in
prosecution proceedings. We turn first to a closer examination
of the language of that section as it appeared prior to the 2013
amendments, and then examine what changes have been made to it.
3. The jurisdiction of the Juvenile Court prior to the
2013 amendments. As noted, the Juvenile Court formerly had
jurisdiction only over offenses committed before an alleged
offender turned seventeen. G. L. c. 119, § 54, as in effect
prior to St. 2013, c. 84, § 8. However, the age of the
individual when he or she allegedly committed the offense is not
the only factor that determines whether the Juvenile Court has
jurisdiction. Rather, such jurisdiction is also limited by the
individual's age when the prosecution goes forward. So long as
a prosecution was commenced prior to the individual's eighteenth
birthday, the court retained continuing jurisdiction of the case
until its conclusion. See G. L. c. 119, § 72(a), first par.,
prior to amendment by St. 2013, c. 84, § 21; G. L. c. 119,
7
§ 72(b). In this manner, the existence of continued
jurisdiction "presuppose[d] that an individual [was] under the
age of eighteen when the proceeding [was]
commenced." Mogelinski I, supra at 632. Notably, because any
alleged offenses at issue necessarily had to involve conduct
that occurred prior to the juvenile's turning seventeen, the
statute effectively gave prosecutors at least a year to bring a
prosecution, be it a delinquency proceeding or a youthful
offender proceeding. The statute reinforced that seventeen
year-old juveniles could be prosecuted for their conduct prior
to seventeen through a separate provision set forth in G. L.
c. 119, § 72(a), second par., that recognized that such
individuals could be prosecuted in Juvenile Court if they were
"apprehended" between their seventeenth and eighteen birthdays. 5
If there was no pending proceeding when the juvenile turned
eighteen and he was "apprehended" on the charges after he turned
eighteen, then under the prior version of the statute, the
Commonwealth's only recourse was to pursue a § 72A transfer
5
Prior to the 2013 amendments, § 72(a), second par., read
as follows:
"If a child commits an offense prior to his seventeenth
birthday, and is not apprehended until between such child's
seventeenth and eighteenth birthday, the court shall deal
with such child in the same manner as if he has not
attained his seventeenth birthday, and all provisions and
rights applicable to a child under seventeen shall apply to
such child."
8
hearing in an effort to have the juvenile tried as an adult.
See Mogelinski I, supra at 633, citing G. L. c. 119, §§ 72, 72A,
as in effect prior to St. 2013, c. 84 ("persons apprehended
prior to their eighteenth birthdays will be proceeded against as
children, and persons apprehended after their eighteenth
birthdays will either be proceeded against as adults or
discharged"). In common parlance, an alleged offender who had
not been apprehended prior to turning eighteen was said to have
"aged out" of the juvenile system.
4. The jurisdiction of the Juvenile Court under the
statute as amended. As already noted, the 2013 amendments
expanded the jurisdiction of the Juvenile Court to include
offenses committed prior to the alleged offender's turning
eighteen, not seventeen. G. L. c. 119, § 54, as amended by St.
2013, c. 84, § 8. It also made a corresponding one-year change
to when § 72A transfer hearings apply; such hearings now apply
only to individuals who are apprehended after they turn
nineteen, not eighteen. G. L. c. 119, § 54, as amended by
St. 2013, c. 84, § 23. Thus, it is now alleged offenders who
have not been apprehended before their nineteenth birthdays who
no longer can be prosecuted in Juvenile Court.
Although the Mogelinski I court applied the earlier version
of the statute in resolving the case presented, it commented
along the way on certain effects of the 2013 amendments. A one-
9
sentence footnote there is of particular relevance to the case
before us. Specifically, the court stated that, as a result of
the 2013 amendments, the Commonwealth now "may seek a youthful
offender indictment at any point prior to an individual's
nineteenth birthday, for offenses alleged to have been committed
between the ages of fourteen and eighteen." Id. at 631 n.3. 6
That statement directly supports the Commonwealth's position in
the case before us. However, we do not view it necessarily as
resolving this case for three reasons. First, the statement
unquestionably is dicta. 7 Second, the statement is not
accompanied by an analysis of the language of G. L. c. 119,
§ 72, as amended, the section that addresses the jurisdictional
question at issue. As discussed below, because the 2013
amendments modified only some of the age references in G. L.
c. 119, § 72, that section now includes a potential textual
anomaly that no appellate court yet has examined. Third, the
defendant argues that even if the statement in note three
6
For this proposition, the court cited to St. 2013, c. 84,
§ 8. It was that section that amended G. L. c. 119, § 54, so as
to allow the Commonwealth to prosecute offenses committed by
seventeen year olds in Juvenile Court.
7
We recognize, of course, that under its superintendence
powers, G. L. c. 211, § 3, the Supreme Judicial Court has
authority to establish prospective rules of law that are binding
on lower courts even though doing so is unnecessary for
resolution of the case before it. We do not read the third
footnote in Mogelinski I as having been intended as such a
pronouncement.
10
of Mogelinski I was intended to set forth a general rule, the
particular circumstances of his case does not fall under that
rule. We turn now to examining § 72, as amended.
The current version of § 72 is set forth in full in the
margin (with underscoring used to highlight those age references
that were increased by one year in or after 2013). 8 Even though
8
The text of G. L. c. 119, § 72, as amended by 2013, c. 84,
§§ 21-22A, and by St. 2014, c. 165, § 153, is as follows. The
age references that were modified by those amendments have been
italicized.
"(a) The divisions of the juvenile court department shall
continue to have jurisdiction over children who attain
their eighteenth birthday pending final adjudication of
their cases, including 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.
Except as provided in subsection (b), nothing herein shall
authorize the commitment of a person to [DYS] after he has
attained his twentieth birthday.
"If a child commits an offense prior to his eighteenth
birthday, and is not apprehended until between such child's
eighteenth and nineteenth birthday, the court shall deal
with such child in the same manner as if he has not
attained his eighteenth birthday, and all provisions and
rights applicable to a child under 18 shall apply to such
child.
"(b) If the Commonwealth has proceeded by indictment, the
divisions of the juvenile court department shall continue
to have jurisdiction over such persons who attain their
eighteenth birthday pending the final adjudication of their
cases, including all remands and retrials following appeals
from their cases, or pending the determination allowed
under section 58, or during continuances or probation, or
after their cases have been placed on file, or for any
other proceeding arising out of their cases. Nothing
herein shall authorize the commitment of a youthful
11
G. L. c. 119, § 54, as amended, now allows the Commonwealth to
seek youthful offender indictments based on conduct undertaken
up to the juvenile's eighteenth birthday, the Legislature did
not make a corresponding one-year change to those portions of
§ 72 that recognized that the Juvenile Court retains
jurisdiction over cases that were pending when the juvenile
turns eighteen. Instead, the relevant language there reads
exactly as it did before the 2013 amendments. See § 72(a),
9
first par., and § 72(b). Accordingly, the language of § 72(a),
first par., and § 72(b) -- viewed on its own -- continues to
"presuppose" that juvenile enforcement proceedings will be
commenced prior to the alleged offender's eighteenth birthday
(without the Commonwealth having an extra year to file a
delinquency complaint or obtain a youthful offender
indictment). 10 However, we are mindful that the Supreme Judicial
offender to [DYS] after he has attained his twenty-first
birthday."
The 2014 amendment substituted "until between such child's
eighteenth and" for "before his."
9
The Legislature amended § 72(a), first par., to allow a
delinquent child to be committed to DYS custody until he or she
turned twenty, not nineteen (a change that is not material to
the appeal before us). No changes whatsoever were made to
§ 72(b).
10
Although the Legislature's failure to change the age
references in § 72(a), first par., and § 72(b) from "eighteen"
to "nineteen" may seem curious, this is with the benefit of
hindsight. The 2013 amendments preceded Mogelinski I, and
12
Court has cautioned -- in the context of interpreting this very
statute -- that we are to "look to the language of the entire
statute, not just a single sentence, and attempt to interpret
all of its terms 'harmoniously to effectuate the intent of the
Legislature.'" Mogelinski I, 466 Mass. at 641,
quoting Commonwealth v. Hanson H., 464 Mass. 807, 810 (2013).
In addition, "it is a well-established canon of statutory
construction that a strictly literal reading of a statute should
not be adopted if the result will be to thwart or hamper the
accomplishment of the statute's obvious purpose, and if another
construction which would avoid this undesirable result is
possible." Reade v. Secretary of the Commonwealth, 472 Mass.
573, 578 (2015), quoting Watros v. Greater Lynn Mental Health &
Retardation Assn., 421 Mass. 106, 113 (1995). With these
principles in mind, we turn to other language in § 72.
therefore the Legislature did not have the benefit of the four-
justice majority opinion on how the pre-amendment language would
be interpreted. Had a majority of the court accepted the
Commonwealth's argument in Mogelinski I that the youthful
offender proceedings effectively were a continuation of the
related delinquency proceedings, then there would have been
little need to change "eighteen" to "nineteen" in § 72(b) (since
eighteen year olds could be indicted as youthful offenders so
long as a delinquency complaint were brought before they turned
eighteen). In terms of considering any failure by the
Legislature to make such a textual change after Mogelinski I
issued, we note that because of the dicta in note three,
Mogelinski I did not flag any potential textual impediment to
indicting eighteen year olds that the Legislature might consider
fixing.
13
Although the 2013 amendments did not modify the provisions
in § 72 regarding the Juvenile Court's continuing jurisdiction
over pending cases, they did update the age references in the
second paragraph of § 72(a). That paragraph previously served
to confirm the court's jurisdiction to hear enforcement matters
against alleged offenders who were apprehended after they turned
seventeen but before they turned eighteen. As a result of the
2013 amendments (and a minor clarifying amendment in 2014), the
second paragraph of § 72(a) now recognizes that the Commonwealth
can bring Juvenile Court enforcement actions against an
individual who "is not apprehended until between such child's
eighteenth and nineteenth birthday," with the matter then being
treated as if the child had not turned eighteen. It is this
provision that provides the Commonwealth an express pathway for
initiating prosecutions in the Juvenile Court against
individuals between their eighteenth and nineteenth birthdays
(whether delinquency proceedings or youthful offender
proceedings). 11
11
It bears noting that unlike § 72(b), which applies only
to youthful offender proceedings, § 72(a) does not expressly
refer to either delinquency proceedings or youthful offender
proceedings. Rather, its language -- "[i]f a child commits an
offense prior to his eighteenth birthday" (emphasis supplied) --
is broad enough to encompass both types of proceedings. Compare
G. L. c. 119, § 58 (a section that similarly uses the undefined
term "child" with reference to both a "delinquent child" and a
"youthful offender"). Nevertheless, we recognize that some
argument can be made, based on the two-part structure of § 72,
14
Our interpretation of the statutory text not only is
consistent with note three of Mogelinski I, but also satisfies
the principle enunciated in that case that we must look to the
statute as a whole, not view language in isolation. Mogelinski
I, supra at 641. Were we to conclude, as the judge did, that
the Commonwealth cannot seek youthful offender indictments
against individuals once they turn eighteen, this would leave a
significant gap in the coverage of the statute. Specifically,
individuals who committed extremely serious offenses while they
were seventeen -- such as the armed home invasion allegedly
committed by the defendant a week before his eighteenth birthday
-- could not be indicted as youthful offenders unless the
Commonwealth actually obtained those indictments before they
that § 72(a) applies only to delinquency proceedings. After
all, since the first paragraph of § 72(a) so closely parallels
§ 72(b), the latter subsection arguably is rendered largely
superfluous if § 72(a) already applied to youthful offender
proceedings. In any event, for the reasons discussed below, we
interpret the second paragraph of § 72(a) as applying to both
delinquency proceedings and youthful offender proceedings,
notwithstanding the somewhat awkward manner in which § 72 is
structured. Finally, we note that although the first paragraph
of § 72(a) and § 72(b) both theoretically apply to youthful
offender proceedings, the latter subsection is plainly the
operative provision to the extent there are any differences.
This explains the court's shorthand reference in Mogelinski I to
§ 72(a) applying "where proceeding commenced via delinquency
complaint" and to § 72(b) applying "where proceeding commenced
via youthful offender indictment." Mogelinski I, supra at 631.
15
turned eighteen. 12 Given unavoidable time lags incumbent in
investigating crimes and obtaining indictments, this in turn
would mean that many serious offenses committed by juveniles
could not be prosecuted through youthful offender proceedings
even though the statutes authorizing such proceedings were
enacted to apply to such offenses. See Commonwealth v. Dale D.,
431 Mass. 757, 760 (2000) ("The Legislature intended to give
prosecutors greater discretion when proceeding against violent
juvenile offenders, and to reduce or eliminate protections
previously afforded to delinquent children"). That result would
be so at odds with the "central purpose" and overall structure
of the statute that we cannot ascribe it to the
Legislature. Reade v. Secretary of the Commonwealth, 472 Mass.
at 584 ("We decline to construe [a statute] in a manner that is
plainly inconsistent with its central purpose, notwithstanding
the susceptibility of the statute's plain language to such a
construction").
5. Application of § 72(a) to this case. Having concluded
that the statute now provides the Commonwealth a pathway for
securing youthful offender indictments against individuals
between their eighteenth and nineteenth birthdays (for offenses
allegedly committed prior to their turning eighteen), our job is
12
Nor could the Commonwealth seek to proceed against them
as adults, at least if they were apprehended prior to their
nineteenth birthdays. See G. L. c. 119, § 72A.
16
not yet done. That is because the defendant argues that even if
the Commonwealth generally can indict eighteen year olds as
youthful offenders, it cannot do so under the particular facts
of this case. Specifically, he points to the fact that he was
taken into DYS custody on the very day the alleged crime
occurred, while he was still seventeen. Because he was
"apprehended" before he turned eighteen, the defendant argues,
§ 72(a), second par., is inapplicable. According to him,
because he was neither indicted as a youthful offender before he
turned eighteen, nor apprehended after he turned eighteen, the
Commonwealth's only option is to proceed on the pending
delinquency complaints. For the reasons that follow, we
disagree.
In Mogelinski I, the court discussed at length the meaning
of "apprehended," as that term is used in the context of §§ 72
and 72A. The court held that when an individual is "available
to the court," he generally is "apprehended" on a juvenile
charge when process issues on that charge. Mogelinski I, 466
Mass. at 634-636. The court recognized that in a typical
juvenile case, process would be issued before the individual is
taken into custody. Id. at 636. The court also recognized,
however, that there may be cases where "a juvenile may be
apprehended prior to the time of the issuance of a summons or a
warrant, where, for example, the police catch him or her in the
17
act of committing a crime." Id. at 636 n.6. "In such a case,
taking the juvenile into custody constitutes apprehension" even
though no charges may yet have been filed. Ibid.
From all of this, it follows that the defendant here is
correct to the extent he argues that he was first "apprehended"
when he was taken into custody, which indisputably occurred
before he turned eighteen. What the defendant fails to
recognize, however, is that the delinquency complaints and the
youthful offender indictments are considered to have initiated
distinct proceedings for which there may be different points of
"apprehension." In Mogelinski I, the court expressly rejected
the argument that the date of apprehension on the youthful
offender proceeding should "relate back" to the date of
apprehension on the prior delinquency proceeding. Id. at 646.
Instead, the court concluded that "the commencement of process
after an indictment marks a new point of apprehension, distinct
from any apprehension on delinquency complaints." Id. at 643.
We recognize that in the case before us, the defendant's
initial apprehension was effected by his being taken into
custody rather than -- as in Mogelinski I -- by the issuance of
process on a delinquency complaint. However, we discern no
reason why that should make a difference in deciding when the
"new point of apprehension" occurred on the youthful offender
indictments. To the contrary, viewing the issuance of process
18
on youthful offender indictments as initiating the applicable
point of apprehension on those indictments is the only way of
arriving at a sensible construction of the statute that squares
both with its language and the principles enunciated
in Mogelinski I.
Conclusion. To sum up, we conclude that the Juvenile Court
had jurisdiction over the youthful offender indictments, because
-- based on the uncontested facts -- the defendant was not
apprehended on them until between his eighteenth and nineteenth
birthdays. 13 See G. L. c. 119, § 72(a), second par.
Accordingly, the judge's order, dated August 9, 2016, allowing
the motion to dismiss the five youthful offender indictments is
reversed, and the five indictments are reinstated. 14
So ordered.
13
Strictly speaking, the limited record before us does not
reveal the specific date on which process issued on the youthful
offender indictments. However, we know that this must have
occurred prior to July 26, 2016, the date on which the defendant
appeared in court with respects to the indictments.
14
Because the judge concluded that there was no
jurisdiction over the youthful offender indictments, the case
remained impounded in the Juvenile Court. We have kept the case
impounded through the course of these appellate proceedings.
See S.J.C. Rule 1:15, § 2, as appearing in 472 Mass. 1301
(2015). However, we note that once the indictments are
reinstated, impoundment will no longer be warranted. See G. L.
c. 119, § 60A ("The record of a youthful offender proceeding
conducted pursuant to an indictment shall be open to public
inspection in the same manner and to the same extent as adult
criminal records").