Commonwealth v. Leopold L., a juvenile

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18-P-920 Appeals Court

COMMONWEALTH vs. LEOPOLD L., a juvenile.

No. 18-P-920.

Suffolk. October 2, 2019. - January 8, 2020.

Present: Wolohojian, Blake, & Englander, JJ.

Practice, Criminal, Juvenile delinquency proceeding, Revocation
of probation, Hearsay, Continuance, Sentence. Juvenile
Court, Delinquent child, Jurisdiction. Jurisdiction,
Juvenile delinquency proceeding. Moot Question. Due
Process of Law, Identification, Sentence. Evidence,
Identification, Photograph. Department of Youth Services.

Complaint received and sworn to in the Suffolk County
Division of the Juvenile Court Department on August 10, 2015.

A proceeding for revocation of probation was heard by
Joseph F. Johnston, J.

Caroline I. Alpert for the juvenile.
Julien M. Mundele, Assistant District Attorney, for the
Commonwealth.

WOLOHOJIAN, J. This appeal from a probation revocation in

the Juvenile Court raises a number of issues of first

impression, including whether the juvenile, who turned eighteen
 2

after committing the crime that violated his probation but

before the probation violation hearing, could be committed to

the custody of the Department of Youth Services (DYS) until age

nineteen. For the reasons set out below, we conclude as a

general proposition that the Juvenile Court has both the

jurisdiction and the authority to impose a probation revocation

disposition to age nineteen. But because the juvenile's

underlying suspended delinquency sentence committed him to DYS

custody only to age eighteen, the judge, after deciding to

revoke the juvenile's probation, could impose only the original

suspended sentence; he could not extend it. For that reason, we

vacate the juvenile's commitment to DYS custody to age nineteen

and order that the original sentence be imposed nunc pro tunc.

In addition, because we reject the juvenile's arguments that the

finding of violation rested on unreliable hearsay evidence, and

that continuances allowed in excess of the time limits for

probation violation hearings in the Juvenile Court constitute

reversible error, we affirm the finding of probation violation

and the revocation of probation. See Commonwealth v. Padua, 479

Mass. 1004, 1005 (2018) (conviction need not be vacated simply

because sentence was incorrect).

Background. In August 2015, a complaint was brought

charging the juvenile with delinquency by reason of unarmed

robbery, G. L. c. 265, § 19 (b), and assault and battery, G. L.
 3

c. 265, § 13A (a) (the 2015 charges). On November 9, 2016, the

then-sixteen year old juvenile admitted to sufficient facts and

pleaded delinquent to the charges. He was committed to DYS

custody "suspended until age eighteen," and placed on probation

with conditions to February 8, 2018 (his eighteenth birthday).

On January 22, 2018, not long before he was to turn

eighteen, a new delinquency complaint charged the juvenile with

having committed armed assault with intent to murder, G. L.

c. 265, § 18 (b), assault and battery by means of a dangerous

weapon, G. L. c. 265, § 15A (b), and malicious damage to a motor

vehicle, G. L. c. 266, § 28 (a) (the 2018 charges). He was

arraigned in Juvenile Court that same day, and ordered held on

$20,000 cash bail. A pretrial conference was scheduled for

February 8, 2018.

Also on January 22, 2018, the juvenile was served with a

notice of probation violation alleging that the new criminal

conduct violated the terms of his 2016 probation.1 The juvenile

did not contest a preliminary finding of violation, and the

judge found probable cause and ordered that the juvenile be held

without bail. See Juvenile Court Standing Order 1-17 § V(c)

1 The juvenile had previously been charged with having
committed technical violations of probation. The first of these
was withdrawn; he was found in violation of probation on the
second occasion and reprobated.
 4

(2017). The probation violation hearing was set for February 8,

2018.

Thus, as of January 22, 2018, the seventeen year old

juvenile was held on $20,000 cash bail on the 2018 delinquency

complaint, he was held on no bail on the probation violation

notice, and the parties were to appear on February 8, 2018, both

for the probation violation hearing and for a pretrial

conference on the 2018 delinquency complaint. February 8, 2018

was the juvenile's eighteenth birthday.

On the morning of the February 8, 2018 hearing, the

juvenile filed a motion arguing that the Juvenile Court's

jurisdiction over the probation violation would end by the end

of the day, as would its ability to impose any sentence. The

Commonwealth sought a continuance in order to address these

issues, and because it had not summonsed the necessary witnesses

for the probation hearing. The Commonwealth also informed the

judge that it was still reviewing whether to indict the juvenile

as a youthful offender. Over the juvenile's objection, the

judge allowed a continuance to March 8, 2018, set a briefing

schedule with respect to the juvenile's motion, and informed the

Commonwealth that it should be prepared to go forward with its

evidence on the probation violation on March 8. The judge also

extended the juvenile's probation to March 8, without prejudice

to the juvenile's jurisdictional argument.
 5

On February 12, 2018, the juvenile filed an emergency

petition for relief with the Supreme Judicial Court under G. L.

c. 211, § 3, challenging both the continuance and the Juvenile

Court's jurisdiction to extend probation beyond the juvenile's

eighteenth birthday. A single justice of the Supreme Judicial

Court denied the petition in part because the juvenile continued

to be held on bail on the new charges, which he had not

challenged.2

The parties next appeared in Juvenile Court on March 8,

2018, as scheduled. As to the 2018 delinquency complaint, the

Commonwealth informed the judge that it had begun to present

evidence to a grand jury and intended to seek an indictment. As

to the probation violation, the juvenile again pressed his

argument that the court lacked jurisdiction and authority given

the juvenile's age. The Commonwealth sought a continuance

because its sole witness (the investigating officer) on the

probation violation was unavailable given unexpected childcare

issues caused by snow and school cancellations. The judge noted

on the record that there had been a significant snowfall the

2 The single justice also denied the petition for the
reasons in the Commonwealth's opposition, which is not part of
the record before us. The Commonwealth has not argued that the
single justice's ruling has any binding effect here. Without
knowing the bases for the single justice's ruling or the
arguments made to him, we decline to give it any such force.
 6

previous evening resulting in school cancellations and even a

delayed opening of the court. Over the juvenile's objection,

the judge continued the probation violation hearing for one week

to March 15, 2018. The judge also denied the juvenile's request

that the judge terminate his detention.

The evidentiary portion of the probation violation hearing

was conducted on March 15, 2018, with argument conducted the

following week on March 22, 2018, after the judge had had an

opportunity to review the video recording (video) exhibits.3 The

evidence (which came in through the investigating officer)

showed the following. On January 14, 2018, the victim and his

friend, driving two separate cars, returned home after having

gone out to get something to eat. As the victim was backing

into a parking spot, three to four young men appeared. Two

wielded baseball bats and smashed the windows of the victim's

car. Another then reached in and stabbed the victim. The

victim's friend managed to disperse the group by driving his car

toward them, and the victim then drove himself to a local

medical clinic for treatment. Finding it closed, the victim

called 911. He recounted the incident to the responding officer

and was then transported by ambulance to a hospital, where the

We, like the Juvenile Court judge, have viewed the video
3

recording of the police interview of the juvenile as well as the
surveillance footage.
 7

officer conducted a short interview in which the victim

described his assailants only as younger Hispanic males.

The victim's friend was interviewed by police at the

station shortly after the attack. The friend's account was

consistent with what we have set out above and added the

following. He was "pretty sure" that one of the attackers was

the juvenile. The day before the incident, the friend and the

victim had seen the juvenile about fifty yards from where the

assault occurred. Upon seeing the juvenile, the victim said,

"[O]h, there goes [the juvenile] and me and him have a beef, as

in like a feud, fight situation." The juvenile was wearing a

grey jumpsuit.

Five days after the incident, after having been released

from the hospital, the victim appeared at the police station

with his father in order to be interviewed. The victim repeated

what he had previously said about the incident but added the

following. The victim identified the juvenile as the person who

broke the car windows and hit his hand with a bat. He had heard

from a friend that the juvenile had used a metal bat in a

previous (unrelated) assault. The victim stated that the

juvenile's nickname was "Puerto Rico," and told the officer

where the juvenile lived, stating that he had known the juvenile

for about two years and that they had previously been friends.

The victim confirmed that he had seen the juvenile the day
 8

before the attack and that the juvenile was wearing the same

hoodie.

The victim added that he recognized the stabber, described

him as having "long hair," and identified him as Adam,4 whom he

(the victim) had known for about two years and saw approximately

monthly. He provided Adam's address. The victim also said that

he had been involved in a physical altercation with Adam a few

months earlier.

A surveillance video obtained from a nearby building

confirmed the details of the attack in all particulars, but did

not show any of the attackers' faces.

The victim identified both the juvenile and Adam from

double-blind photographic arrays. When the police went to

arrest the juvenile at his home, his family attempted to divert

police while the juvenile escaped. The juvenile was apprehended

as he fled out the back exit.

After hearing the evidence, the judge continued the hearing

to March 22, 2018, so that he could review the videos. When the

parties returned on that date, the juvenile again argued that

the court did not have jurisdiction over him given his age, that

both due process and double jeopardy would be violated should

any disposition be imposed beyond that imposed in the original

4 A pseudonym.
 9

sentence on the 2015 charges, that the hearsay evidence was not

reliable, and that the evidence did not establish by a

preponderance of the evidence that the juvenile participated in

the attack. The judge disagreed, found the juvenile in

violation of his probation, revoked the suspended sentence, and

committed him to DYS custody to age nineteen (i.e., to February

8, 2019). This appeal followed.5

Discussion. The juvenile raises three primary arguments on

appeal, all of which are preserved. First, he argues that he

was deprived of due process because the probation violation

rested solely on unreliable hearsay. Second, he contends that

the judge committed reversible error by continuing the probation

violation hearing, over the juvenile's objection, without good

cause and beyond the period allowed by Juvenile Court Standing

Order 1-17, and G. L. c. 119, § 56. Third, the juvenile argues

that the judge imposed an illegal sentence when he committed him

to DYS custody until his nineteenth birthday.

As an initial matter, on our own initiative, we have first

considered whether this appeal is moot given that the juvenile's

commitment to DYS custody has ended and there is no effective

relief we can provide with respect to that sentence even though

5 The juvenile was subsequently indicted as a youthful
offender on the 2018 charges, which were transferred to the
Superior Court.
 10

we conclude that it was illegal. An appeal from a probation

revocation does not become moot simply because the person has

finished serving his or her sentence. This is because the

revocation "may have collateral consequences" in the future

apart from the sentence itself. Commonwealth v. Kendrick, 446

Mass. 72, 73 n.1 (2006). See G. L. c. 119, § 60 (juvenile

probation violation adjudication is admissible "in subsequent

delinquency or criminal proceedings against the same person").

In addition, although it is true that we can offer no effective

relief with respect to the sentence the juvenile has already

served, the same is not true with respect to the probation

violation finding itself, which we could reverse were we to

agree (which we do not) with the juvenile's view that it rests

on insufficient evidence and unreliable hearsay.6 See Padua, 479

Mass. at 1005 (defendant has continuing interest in obtaining

relief from conviction itself even if he has completed serving

sentence). See also Commonwealth v. Pena, 462 Mass. 183, 189

(2012), and cases cited ("probation revocation may have

collateral consequences beyond term of incarceration"). For all

6 Even were we to conclude that the appeal were moot, we
note that several of the juvenile's arguments regarding his
sentence turn on his "aging out" of the Juvenile Court's
jurisdiction or authority, and are thus particularly susceptible
of evading review upon repetition in future cases. See Delaney
v. Commonwealth, 415 Mass. 490, 492 (1993).
 11

of these reasons, we conclude this appeal is not moot and we now

turn to the arguments raised by the parties.

1. Hearsay. The juvenile argues that the victim's

identification of him (which was introduced through the

testifying officer) was unreliable hearsay and therefore could

not, consistent with due process, be the sole basis upon which

to conclude that the juvenile was one of the assailants. See

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Commonwealth v.

Milton, 427 Mass. 18, 22 (1998). He points in particular to the

fact that the victim did not identify his assailants immediately

after the crime and that the victim's identification of the

juvenile in the photographic array rested on his previous

dealings with the juvenile rather than on seeing the juvenile

during the attack.

In assessing the juvenile's argument, we begin by noting

that this is not a case where probation revocation rested

entirely on hearsay; indeed, the principal investigating officer

testified at the hearing. Contrast Commonwealth v. Durling, 407

Mass. 108, 110 (1990) (sole evidence of probation violation was

two police reports about which probation officer had no personal

knowledge). The officer responded to the scene, observed and

questioned the victim who had shortly before been stabbed,

investigated the scene of the attack, saw the damaged car, went

to the hospital where the victim was treated, interviewed both
 12

the victim and his friend, wrote a police report, and obtained a

surveillance video showing the attack. The officer was subject

to confrontation7 on all of these matters. Moreover, the

surveillance video, which would be admissible in evidence,

confirmed the attack and many of its details.

This is also not a case where the accuracy of the witness

reporting the hearsay evidence is questioned. See Commonwealth

v. Negron, 441 Mass. 685, 692 n.8 (2004) (admission of hearsay

impliedly includes "an additional implicit determination that

the witness who is reporting the hearsay . . . is doing so

accurately"). The juvenile does not question that the officer

accurately recounted the victim's statements identifying the

juvenile; indeed, any such argument would be foreclosed by the

video recording of the interview, which confirms the officer's

testimony.

Thus, the narrow question before us is only whether the

victim's identification of the juvenile bore sufficient indicia

of reliability for the judge to conclude by a preponderance of

the evidence that the juvenile participated in the attack. "The

7 The confrontation right at issue in probation violation
proceedings is the due process right of confrontation described
in Durling, 407 Mass. at 117-119. It is not the right of
confrontation under the Sixth Amendment to the United States
Constitution or under art. 12 of the Massachusetts Declaration
of Rights. Commonwealth v. Wilcox, 446 Mass. 61, 67-68, 70-71
(2006).
 13

[juvenile] court may rely on hearsay as evidence of a probation

violation only if the court finds in writing that the hearsay is

substantially reliable." Juvenile Court Standing Order 1-17

§ VII(b).

In written findings required by Juvenile Court Standing

Order 1-17 § VIII(c), the judge determined that the out-of-court

statements of identification were reliable because the victim

knew the perpetrators based on previous interactions with them,

knew where the perpetrators lived, was able to identify the

attackers in separate photographic arrays, the information was

internally consistent, and the victim relied on personal

knowledge in making the identifications. See Juvenile Court

Standing Order 1-17 § VII(b) (reproduced in the margin).8 The

8 Juvenile Court Standing Order 1-17 § VII(b) provides:

"The court may rely on hearsay as evidence of a probation
violation only if the court finds in writing that the
hearsay is substantially reliable. In determining if
hearsay is substantially reliable, the court may consider,
among any other relevant factors, whether that evidence

"(1) is based on personal knowledge and/or direct
observation, rather than on other hearsay;

"(2) involves observations recorded close in time to the
events in question;

"(3) is factually detailed, rather than generalized and
conclusory;

"(4) is internally consistent;
 14

judge's reasoning was well-grounded in the evidence and we agree

that it provided an ample basis upon which to conclude the

hearsay was reliable. See Commonwealth v. Nunez, 446 Mass. 54,

59 (2006). In addition to the factors highlighted by the judge,

we note that the victim's identification of the juvenile was

corroborated by the first-hand observations of his friend (who

provided the same identification immediately after the crime,

with no suggestion of coordination with the victim), was

consistent with the victim's hostile relationship with the

juvenile, and was bolstered by the juvenile's demonstrated

consciousness of guilt when he attempted to evade the police.

In addition, when assessing the reliability of the victim's

statements, we take into account that "it is a crime for a

citizen to make a false report of a crime to police officers,

see G. L. c. 269, § 13A, a factor that 'bolsters the reliability

of the report[].'" Negron, 441 Mass. at 691-692, quoting

Durling, 407 Mass. at 121. See Commonwealth v. Patton, 458

Mass. 119, 132-133 (2010) (nonexclusive list of factors derived

"(5) is corroborated by any evidence provided by the
probationer;

"(6) was provided by a disinterested witness; or

"(7) was provided under circumstances that support the
veracity of the source (e.g., was provided under the pains
and penalties of perjury or subject to criminal penalties
for providing false information)."
 15

from Durling and Commonwealth v. Delaney, 36 Mass. App. Ct. 930,

932 n.4 [1994] bearing on reliability of hearsay).

2. Continuances. The juvenile argues that the probation

violation hearing was several times continued over his

objection, without good cause, in violation of Juvenile Court

Standing Order 1-17 § VI(e), was once continued for more than

fifteen days, in violation of G. L. c. 119, § 56, and that those

continuances cumulatively resulted in the hearing occurring more

than fifteen days after the juvenile was served with the

probation violation notice, in violation of Juvenile Court

Standing Order 1-17 § III(b)(iii). Although we conclude that

there was good cause for each of the continuances, we agree with

the juvenile that the continuances exceeded the deadlines

contained in Juvenile Court Standing Order 1-17, and in one

instance exceeded the time limit in G. L. c. 119, § 56.

Nonetheless, we conclude that the juvenile suffered no

cognizable prejudice from the delay.

Juvenile Court Standing Order 1-17 sets out procedures for

probation revocation proceedings in the Juvenile Court.9 Section

III(b)(iii) pertains to the scheduling of probation violation

hearings and provides:

9 The Chief Justice of the Juvenile Court Department may
issue standing orders, subject to approval of the Supreme
Judicial Court. G. L. c. 218, § 60.
 16

"The probation violation hearing shall be scheduled to
commence on the date of the pretrial hearing for the
new delinquency or criminal complaint or youthful
offender indictment, unless the court expressly orders
an earlier hearing. The hearing shall be scheduled
for a date certain no less than seven days after
service on the probationer of the Notice of
Violation/Hearing unless the probationer waives said
seven day notice period. The hearing date shall not
be later than fifteen days after service of the Notice
of Violation/Hearing without the probationer's consent
if he or she is held [as the juvenile in this case
was] pursuant to Section V of this standing order. In
any case, the hearing shall not be later than thirty
days after service of the Notice of Violation/Hearing,
except in extraordinary circumstances. In scheduling
the pretrial hearing on the new delinquency or
criminal complaint or youthful offender indictment
together with the probation violation hearing, the
court shall give primary consideration to the need for
promptness in conducting the probation violation
hearing."

Also pertinent is § VI(e) of Standing Order 1-17, which states

that "[p]robation violation hearings shall be continued only by

a judge and only for good cause shown."10

Taken together, these provisions require that (1) a

probation violation hearing be scheduled no less than seven days

after the juvenile is served with notice of the probation

violation (unless waived by the juvenile), (2) the hearing shall

occur within fifteen days after service of the notice if (as

here) the juvenile is held in custody, (3) in any event, absent

10Section VI(e) also provides that "[t]he reason of any
continuance shall be stated by the judge and entered in the case
docket."
 17

"extraordinary circumstances," the hearing shall occur no later

than thirty days after service of the violation notice, and (4)

continuances require a showing of good cause. The parties have

not pointed us to, nor have we found, any appellate case

construing or examining the application of Standing Order 1-17.

We have also found no appellate cases construing the

provision of G. L. c. 119, § 56, that provides:

"Hearings upon cases arising under sections fifty-two to
eighty-four, inclusive, [which includes probation violation
proceedings under section fifty-nine], may be adjourned
from time to time; provided however, that no adjournment
shall exceed fifteen days at any one time against the
objection of the child."

Section 53 of G. L. c. 119 states that § 56 (like other sections

of c. 119) "shall 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." G. L. c. 119, § 53. Thus,

although a judge has discretionary authority to allow

continuances, he or she is to keep this interpretive principle

in mind when assessing whether (and for how long) to grant a

continuance in particular circumstances. Regardless, § 56

imposes a bright-line limit of fifteen days for any individual

continuance, which is written in unequivocal and mandatory

language: "no adjournment shall exceed fifteen days at any one

time" (emphasis added). See Hashimi v. Kalil, 388 Mass. 607,
 18

609 (1983) ("The word 'shall' is ordinarily interpreted as

having a mandatory or imperative obligation").11

We now examine these provisions with respect to each of the

procedural events in this case.

The juvenile was served with the probation violation notice

on January 22, 2018, when he was also arraigned on the new

delinquency complaint. He next appeared in court on February 8,

2018, seventeen days after the arraignment, for both a pretrial

conference on the delinquency complaint and a hearing on the

probation violation. This date was suggested by counsel for the

11Relying on the sentence of G. L. c. 119, § 56, that
states that G. L. c. 276, § 35, "relative to recognizance in
cases continued shall apply to cases arising under sections
fifty-two to eighty-four, inclusive," the Commonwealth argues
that § 56 does not apply at all to delinquency and youthful
offender proceedings. General Laws c. 276, § 35, provides, in
pertinent part:

"[T]he defendant . . . may recognize in a sum and with
surety or sureties to the satisfaction of the court or
justice, or without surety, for his appearance for . . .
trial . . . . While the defendant remains committed, no
adjournment shall exceed thirty days at any one time
against the objection of the defendant."

For two reasons, we do not read the sentence in c. 119, § 56, as
broadly as the Commonwealth. First, the Commonwealth's reading
would cause the thirty-day limit on continuances contained in
§ 35 to supplant the fifteen-day limit in § 56, and thus render
meaningless the first sentence of § 56. Second, the
Commonwealth's reading ignores the limiting phrase "relative to
recognizances." "We do not read a statute so as to render any
of its terms meaningless or superfluous. Bynes v. School Comm.
of Boston, 411 Mass. 264, 268 (1991), and cases cited." Banushi
v. Dorfman, 438 Mass. 242, 245 (2002).
 19

juvenile, and therefore was within the provisions of Standing

Order 1-17 § III(b)(iii) and complied with G. L. c. 119, § 56;

the juvenile raises no issue concerning it now.

The juvenile does, however, challenge the one-month

continuance of the probation violation hearing from February 8,

2018, to March 8, 2018. He contends that there was no good

cause for the continuance and, furthermore, that it violated

G. L. c. 119, § 56, and Standing Order 1-17 § III(b)(iii). We

disagree with the juvenile's contention that the judge abused

his discretion in finding good cause for this continuance, see

Commonwealth v. Jackson, 376 Mass. 790, 792 (1978)

(determination of continuance "will be disturbed only if there

was a clear abuse of discretion"), but agree that it violated

§ III(b)(iii) of the standing order and G. L. c. 119, § 56.

"In considering a request for a continuance, a trial judge

should balance the movant's need for additional time against the

possible inconvenience, increased costs, and prejudice which may

be incurred by the opposing party if the motion is granted."

Commonwealth v. Super, 431 Mass. 492, 496-497 (2000), quoting

Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973). Although

the Commonwealth's simple assertion at the February 8 hearing

that it had failed to summons any witnesses, without anything

more or further inquiry by the judge, would not constitute good

cause, see Commonwealth v. Perkins, 464 Mass. 92, 103-104
 20

(2013), the hearing transcript reveals that the judge's decision

to allow the continuance did not rest on this ground. Instead,

the judge's primary reason for granting the continuance was the

filing of the juvenile's motion -- that very morning --

challenging the court's jurisdiction over him. The one-month

continuance followed from the Commonwealth's need to respond to

the motion, and from the schedule the judge set to allow both

the Commonwealth and the juvenile time to submit further

briefing on those complicated issues. See Commonwealth v.

Lester L., 445 Mass. 250, 259 (2005) (relevant inquiry with

respect to good cause is Commonwealth's reasons for

continuance). The judge was entitled to consider that, although

in other cases a continuance might result in prejudice by

extending a juvenile's detention, in this case no such prejudice

would result because the juvenile was being detained on the new

delinquency charges, not only on the probation violation. Thus,

no prejudice to the juvenile acted as a counterweight to the

Commonwealth's need for the continuance.

Although there was good cause for the one-month

continuance, it nonetheless ran afoul of the requirement in

Standing Order 1-17 § III(b)(iii) that probation violation

hearings be conducted within fifteen days of service of the

notice where (as here) the juvenile is in detention and does not

consent to the delay. It also violated G. L. c. 119, § 56's
 21

prohibition against continuances of more than fifteen days at

any one time.

Turning to the one-week continuance from March 8, 2018, to

March 15, 2018, where the Commonwealth's witness was

unexpectedly unavailable due to childcare demands caused by a

large snowfall and school cancellations, we also conclude that

the judge did not abuse his discretion in finding good cause to

continue the hearing. Again, the continuance worked no

prejudice since the juvenile was being held on the delinquency

charges in addition to the probation violation. That said, the

one-week continuance meant that the hearing on the probation

violation would take place more than seven weeks after the

juvenile had been served with the probation violation notice.

This exceeded two time limits in Standing Order 1-17

§ III(b)(iii): first, the hearing was not to take place,

without the juvenile's consent, more than fifteen days after

service of the probation violation notice where (as here) the

juvenile was in detention; second, "[i]n any case, the hearing

shall not be later than thirty days after service of the Notice

of Violation/Hearing, except in extraordinary circumstances."

The Commonwealth has not argued extraordinary circumstances

here.

All that said, we conclude that none of these delays,

either individually or cumulatively, requires reversal of the
 22

probation violation finding. In the related context of G. L.

c. 276, § 35, which sets time limits on continuances in adult

criminal cases, the Supreme Judicial Court has said that "[a]

continuance in violation of G. L. c. 276, § 35, does not

automatically provide the defendant with the right to have the

case against him dismissed." Commonwealth v. Ludwig, 370 Mass.

31, 34 n.1 (1976). Instead, "a continuance in excess of that

limitation triggers an examination as to whether the delay was

excusable and whether the defendant was prejudiced thereby."

Commonwealth v. Boyer, 6 Mass. App. Ct. 938, 939 (1978). Here,

as we have set out above, there was good cause for the

continuances and no prejudice to the juvenile from them. To the

extent the juvenile claims prejudice because the Commonwealth

would not have been prepared to go forward on the days at issue,

this understanding of prejudice, if accepted, would mean that no

continuance could ever be granted regardless of the

circumstances -- a proposition that is not only illogical but

one for which we have found no support.

3. Illegal sentence. The juvenile contends that

committing him to DYS custody to age nineteen was an illegal

sentence for three reasons. First, relying on G. L. c. 119,

§ 58, he contends that because he committed the probation

violation before he turned eighteen, the Juvenile Court had no

jurisdiction to impose a sentence beyond his eighteenth
 23

birthday.12 Second, he argues that, even if the court had

jurisdiction to impose a sentence to age nineteen, the judge

could not do so here because the underlying suspended sentence

ended at age eighteen. Third, the juvenile argues that, should

we disagree with the latter proposition, then a constitutional

concern is raised with the knowingness of his plea. Because we

conclude that, although the court had jurisdiction, the judge

could not extend the suspended sentence, we need not reach this

last argument.

a. Jurisdiction. The Juvenile Court has jurisdiction to

adjudge delinquent "a child between 12 and 18 years of age who

commits any offense against a law of the commonwealth; provided,

however, that such offense shall not include a civil infraction,

a violation of any municipal ordinance or town by-law or a first

offense of a misdemeanor for which the punishment is a fine,

12 In pertinent part, G. L. c. 119, § 58, provides:

"If a child is adjudicated a delinquent child on a
complaint, the court may place the case on file or may
place the child in the care of a probation officer for such
time and on such conditions as it deems appropriate or may
commit him to the custody of the department of youth
services, but the probationary or commitment period shall
not be for a period longer than until such child attains
the age of eighteen, or nineteen in the case of a child
whose case is disposed of after he has attained his
eighteenth birthday or age 20 in the case of a child whose
case is disposed of after he has attained his nineteenth
birthday."
 24

imprisonment in a jail or house of correction for not more than

6 months or both such fine and imprisonment." G. L. c. 119,

§ 52, as amended by St. 2018, c. 69, § 72.13 See generally

Wallace W. v. Commonwealth, 482 Mass. 789, 792 (2019); Lazlo L.

v. Commonwealth, 482 Mass. 325, 326-335 (2019); Commonwealth v.

Cole C., 92 Mass. App. Ct. 653 (2018). The court has continuing

jurisdiction in certain circumstances beyond the date when a

child turns eighteen. As pertinent here, the Juvenile Court

"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" (emphasis added).

G. L. c. 119, § 72 (a). In essence, the juvenile argues that,

because his case was "finally adjudicated" when he admitted to

sufficient facts and was adjudged delinquent on the underlying

complaint, the continuing jurisdiction provided by § 72 (a) does

not extend to the subsequent probation violation proceeding. It

13When the underlying delinquency complaint was brought in
August 2015, the Juvenile Court's jurisdiction was limited by an
earlier, broader definition of "delinquent child" as "a child
between seven and 18 who violates any city ordinance or town by-
law or who commits any offence against a law of the
commonwealth." See St. 2013, c. 84, § 7. The new definition
took effect on July 12, 2018. See St. 2018, c. 69, § 232. The
juvenile fell within both definitions at all relevant times.
 25

follows, he argues, that the Juvenile Court lost jurisdiction

over him when he turned eighteen.

The juvenile's argument depends on his reading of the

phrase "final adjudication of [his] case[]" to mean the moment

when he was adjudged delinquent and sentenced. But as is clear

from the expansive enumerative language that immediately follows

the phrase, which includes references to appeals, probation, and

"any other proceeding arising out of the[] case[]," the

juvenile's reading is incorrect. Instead, "final adjudication"

for purposes of § 72 (a) does not occur until all proceedings

arising out of a case are concluded. It does not, as the

juvenile suggests, have the same meaning as "disposed of" as

that phrase is used in G. L. c. 119, § 58,14 which refers in that

context to the moment of initial sentencing.15,16

14 The text of § 58 is reproduced in note 12, supra.

15Our conclusion in this regard is consistent with cases
finding jurisdiction over adult probation violation proceedings
even after the expiration of the probationer's term of probation
provided the violation occurred during the probationary term.
See Commonwealth v. Aquino, 445 Mass. 446, 449 (2005);
Commonwealth v. Sawicki, 369 Mass. 377, 379-380 (1975).

16Initial sentencing, as we use the phrase here, means the
first sentence of commitment the juvenile receives. This could
be a commitment sentence on the underlying delinquency complaint
or, where a juvenile received straight probation on the
underlying offense, a commitment sentence imposed upon probation
revocation.
 26

What remains, then, is the question whether a probation

violation proceeding "aris[es] out of" the underlying

delinquency case, and we have no hesitation in concluding that

it does. A "probation revocation proceeding is not a new

criminal prosecution." Commonwealth v. Wilcox, 446 Mass. 61, 65

(2006). Instead, it is a proceeding arising from a

probationer's alleged violation of the terms of probation

imposed as part of a sentence for an underlying conviction; in

other words, it is spawned by the sentence from which it stems.

See Commonwealth v. Holmgren, 421 Mass. 224, 227 n.1 (1995)

("revocation of probation is not punishment for commission of

any subsequent crime charged, but rather is a remedial sanction

arising from the sentence imposed for the earlier offense").

Accordingly, because the juvenile's underlying delinquency

case was pending final adjudication and the probation violation

proceeding arose from it, the Juvenile Court retained

jurisdiction over him even after he turned eighteen.

b. Imposing suspended sentence upon revocation of

probation. Once the judge found the juvenile in violation of

his probation, he had only four sentencing options:

"After the court has entered a finding that a
violation of probation has occurred, the court may
order any of the following dispositions set forth
below, as it deems appropriate. These dispositional
alternatives shall be the exclusive options available
to the court.
 27

. . .

"(i) Continuance of Probation. The court may
decline to modify or revoke probation and, instead,
issue to the probationer such admonition or
instruction as it may deem appropriate.

"(ii) Termination. The court [may] terminate the
probation order.

"(iii) Modification. The court may modify the
conditions of probation. Such modification may
include the addition of reasonable conditions and the
extension of the duration of the probation order.

"(iv) Revocation. The court may order that the
order of probation be revoked. If the court orders
revocation, it shall state the reasons therefor in
writing."

Juvenile Court Standing Order 1-17 § VIII(d).

Here, the judge decided that revocation was appropriate.

Once he made that determination, he was required to impose the

original suspended sentence. Holmgren, 421 Mass. at 228. See,

e.g., Commonwealth v. Eldred, 480 Mass. 90, 102 n.8 (2018) ("A

suspended sentence, however, limits the judge's options should

there be a violation of probation after a suspended sentence has

been imposed, because, under . . . Holmgren, [supra], 'when

probation is revoked, the original suspended sentence must be

imposed'"); Commonwealth v. Cole, 468 Mass. 294, 304 (2014)

("Where the judge determines that the probation violation

warrants the revocation of probation, the judge must impose the

original suspended sentence"). "Upon revocation of a probation

order, any sentence or commitment that was imposed for the
 28

offense involved, the execution of which was suspended, shall be

ordered . . . ." Juvenile Court Standing Order 1-17 § VIII(e).

Straightforward application of this rule here, however,

leads to the undesirable result of imposing an illusory

sentence. Because the juvenile's original suspended sentence

terminated his DYS commitment when he turned eighteen, there was

no practical purpose in imposing that sentence after the

juvenile had already turned eighteen. Presumably recognizing

this, the judge's solution was to extend the juvenile's DYS

commitment to age nineteen. Although the judge could have

imposed such a committed sentence upon finding a probation

violation had the juvenile initially been sentenced to straight

probation, he could not reach this result by imposing the

suspended sentence.

It seems odd, indeed, that there should be no effective

remedy for a juvenile whose probation violation is serious

enough to warrant revocation of his probation simply because he

violated probation shortly before turning eighteen -- especially

since that juvenile received the benefit of a suspended sentence

on the underlying delinquency complaint in the first place, and

for the reasons we have set out above, the court had continuing

jurisdiction over the juvenile even after he turned eighteen.

But we have found no authority, nor has the Commonwealth cited

any, for the proposition that the judge could do anything other
 29

than impose the original sentence. Indeed, to the contrary, we

have been instructed that, upon probation revocation, the

original suspended sentence must be imposed, regardless of

whether that "is a desirable rule or not." Holmgren, 421 Mass.

at 228. This is "[b]ecause the revocation of probation is not

punishment for commission of any subsequent crime charged, but

rather is a remedial sanction arising from the sentence imposed

for the earlier offense . . . ." Id. at 227 n.1.

At oral argument, the Commonwealth suggested that the

"spirit" of the underlying sentence was to commit the juvenile

to DYS custody to the judge's maximum authority, i.e., age

eighteen. Therefore, the Commonwealth reasons, when the judge

imposed the suspended sentence to age nineteen (his maximum

authority at that point), he was merely effectuating the same

"spirit" of the original sentence, not really extending it.

Although we recognize the broad equitable powers of the Juvenile

Court, and the salutary purposes and reasons behind committing

the juvenile to DYS custody because of the probation violation,

we think it is a slippery slope indeed to look to the spirit of

a sentence rather than its plain terms. This is not a case of

merely interpreting the original sentencing judge's intent in

the face of a less-than-explicit sentencing structure. See

Commonwealth v. Bruzzese, 437 Mass. 606, 615 (2002). The
 30

underlying sentence here stated that the juvenile was being

committed to DYS until age eighteen.

This is not to say that the judge, despite finding the

juvenile had violated his probation, was without power to do

anything at all. He could have modified the terms of the

juvenile's probation, including extending it and/or adding other

terms. See G. L. c. 119, § 72 (a); Juvenile Court Standing

Order 1-17 § VIII(d)(iii). And, as we stated above, had the

juvenile originally been sentenced to straight probation, the

judge could "impose a sentence, commitment, or other disposition

as provided by law," Juvenile Court Standing Order 1-17

§ VIII(f), including commitment to the juvenile's nineteenth

birthday, G. L. c. 119, §§ 58 & 72. See Bruzzese, 437 Mass. at

617-618 ("If a defendant's straight probation is revoked,

whether it be on a single charge or on multiple charges, he is

subject to sentencing on those charges in essentially the same

light that existed at the time straight probation was originally

imposed"). But he could not extend the original suspended

sentence to age nineteen, and the sentence must accordingly be

vacated.

The problem presented here is a result of the Juvenile

Court's common practice of crafting sentences to terminate at

age eighteen, which seems to act as a convenient shorthand to

indicate that the judge wishes to impose a sentence concurrent
 31

with the full extent of the court's initial jurisdiction over a

juvenile and the judge's initial sentencing authority. The

Juvenile Court may wish to study and consider whether there are

other ways to write sentences that will not result in the

problem we encounter here.

Conclusion. For the reasons set out above, so much of the

order as finds a probation violation and revokes the juvenile's

probation is affirmed; so much of the order as extends the

juvenile's commitment to DYS custody to age nineteen is vacated,

and the juvenile's original sentence shall be imposed nunc pro

tunc.17

So ordered.

17We realize that, given the juvenile's age, the corrected
sentence will have no practical effect.