Ulla U., a juvenile v. Commonwealth

NOTICE: All slip opinions and orders are subject to formal
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SJC-12752

ULLA U., a juvenile vs. COMMONWEALTH.

Suffolk. January 9, 2020. - July 21, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher,
& Kafker, JJ.

Juvenile Court, Jurisdiction, Delinquent child. Jurisdiction,
Juvenile Court, Juvenile delinquency proceeding, Transfer
hearing. Practice, Criminal, Juvenile delinquency
proceeding, Transfer hearing, Delay in commencement of
prosecution, Interlocutory appeal. Delinquent Child.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on May 16, 2019.

The case was heard by Budd, J.

Michelle Menken (Ziyad S. Hopkins, Committee for Public
Counsel Services, also present) for the juvenile.
Monica J. DeLateur, Assistant District Attorney (Michelle
P. Slade, Assistant District Attorney, also present) for the
Commonwealth.
Alison R. Bancroft, for youth advocacy division of the
Committee for Public Counsel Services, amicus curiae, submitted
a brief.

LENK, J. We take this opportunity to clarify certain

procedural questions that have arisen in connection with the
 2

"transfer hearing" in the Juvenile Court afforded juveniles by

G. L. c. 119, § 72A. That statute was enacted to close a gap in

the statutory scheme as it concerned the treatment of those

persons who had reached their nineteenth birthdays and were

apprehended for acts allegedly committed when they had not yet

reached their eighteenth birthdays. See St. 1996, c. 200, § 13A

(establishing transfer hearings); St. 2013, c. 84, § 23 (raising

birthdays by one year).

Because the Juvenile Court has limited jurisdiction,

ordinarily not including those over eighteen years of age, and

because "adult" courts have no jurisdiction over those whose

acts occurred while the individual was still a juvenile (i.e.,

under age eighteen), no court had jurisdiction in such

circumstances. The Legislature remedied this state of affairs

by creating the "transfer hearing," which was to take place in

the Juvenile Court. There, a Juvenile Court judge would

determine whether probable cause existed and, if so, whether the

public interest would be served best by prosecuting the

individual as an adult in the District Court, or by discharging

the individual. See G. L. c. 119, § 72A; Commonwealth v.

Mogelinski, 473 Mass. 164, 172 (2015) (Mogelinski II);

Commonwealth v. Mogelinski, 466 Mass. 627, 646 & n.11 (2013)

(Mogelinski I).
 3

There has been lingering uncertainty, however, about the

proper procedures to follow, both in the Juvenile Court and in

seeking appellate review, when what is at issue is whether the

prosecutor improperly delayed bringing criminal charges until

after a juvenile's nineteenth birthday. The merits of this

juvenile's1 motion to dismiss on such grounds are not before us,

and we express no view on that matter.

Rather, we direct our attention to a determination whether,

as the juvenile maintains, her motion to dismiss should have

been heard by the Juvenile Court judge prior to her arraignment,

or whether, as the Commonwealth maintains, the matter should

have been heard by the Juvenile Court judge after arraignment,

as part of the transfer hearing itself.2 We conclude that a

Juvenile Court judge has authority to hear such a motion to

dismiss as a part of the transfer hearing after arraignment.3 As

to whether a juvenile has an automatic right of appeal under

1 We refer to the subject of the proceedings below as the
"juvenile," even though she is now over twenty years old.

2 Both parties are in accord, and we agree, that the
Juvenile Court judge erred in declining to act on the juvenile's
motion, under the belief that she had no authority to do so.

3 If a juvenile moves to dismiss on the ground that the
complaint fails to establish probable cause, a Juvenile Court
judge may still decide this motion prior to arraignment. See
Commonwealth v. Humberto H., 466 Mass. 562, 575–576 (2013).
 4

G. L. c. 211, § 3, where the motion is denied, we conclude that

he or she does not.

1. Background. Shortly after noon on October 14, 2016,

officers of the Boston police department responded to a two-

vehicle crash in the Roslindale section of Boston. They found

one of the vehicles turned over onto the driver's side and

identified the juvenile as the operator of the heavily damaged

vehicle. A reconstruction of the accident later would reflect

that she had been driving at approximately seventy miles per

hour, forty miles per hour over the speed limit, when she lost

control of the vehicle. At the time of the crash, she was

seventeen years old. The juvenile was taken to a local

hospital, where she was treated for injuries that were not life

threatening. A rear seat passenger in the juvenile's vehicle

was found unresponsive at the scene. The passenger also was

transported for medical treatment, but was pronounced dead at

the hospital.

In August of 2018, a detective with the Boston police

department filed an application for a complaint against the

juvenile. On August 16, 2018, an assistant clerk-magistrate

issued a complaint charging the juvenile with multiple offenses

related to the accident, including one count of involuntary
 5

manslaughter, G. L. c. 265, § 13.4 By that time, the juvenile

was nineteen years old.

The juvenile was summonsed to appear for arraignment in the

Juvenile Court on September 21, 2018. The arraignment was

postponed until October by agreement of the parties. On October

10, 2018, prior to arraignment, the juvenile filed a motion to

dismiss for prosecutorial delay and lack of probable cause. In

November 2018, a Juvenile Court judge determined that the

complaint was supported by probable cause, and therefore denied

the juvenile's motion on that ground. She also allowed the

Commonwealth's motion for an evidentiary hearing on the issue of

prosecutorial delay. Soon thereafter, however, the Commonwealth

filed a motion to arraign the juvenile. In that motion, the

Commonwealth argued that a Juvenile Court judge lacked the

authority to hear the juvenile's motion to dismiss for

inexcusable or bad faith delay prior to arraignment.

Following a nonevidentiary hearing in February 2019, the

same judge denied the juvenile's motion to dismiss due to

prosecutorial delay. The judge concluded that, as a result of

the limited jurisdiction granted to the Juvenile Court under

4 The juvenile also was charged with assault and battery by
means of a dangerous weapon (the vehicle), G. L. c. 265, § 15A;
reckless operation of a motor vehicle, G. L. c. 90,
§ 24 (2) (a); speeding, G. L. c. 90, § 17; and unlicensed
operation of a motor vehicle, G. L. c. 90, § 10.
 6

G. L. c. 119, § 72A, she lacked the authority to decide the

merits of the juvenile's motion. The judge then determined that

the juvenile's motion should be heard after the transfer hearing

was complete and any subsequent complaint was issued in an adult

court. The judge also declined to report questions of law

regarding her authority under G. L. c. 119, § 72A, and allowed

the Commonwealth's motion to arraign the juvenile.

In May 2019, the juvenile filed in the county court a

petition for extraordinary relief pursuant to G. L. c. 211, § 3.

In June 2019, the single justice denied the petition. The

juvenile subsequently was arraigned; she pleaded not delinquent,

and was released on personal recognizance.

In June 2019, the juvenile appealed to this court from the

single justice's denial. We allowed the juvenile's appeal to

proceed, notwithstanding that, ordinarily, a juvenile may not

seek review of the denial of a motion to dismiss until after

trial. While recognizing that the question of prearraignment

dismissal was moot as to this juvenile,5 we noted that the issue

5 We note, however, that the question regarding the
authority of a Juvenile Court judge to decide a motion to
dismiss for prosecutorial delay is not entirely moot as to the
juvenile. Although she has been arraigned, no transfer hearing
apparently has taken place. Thus, because we conclude that a
Juvenile Court judge has the authority to hear a juvenile's
motion to dismiss as part of the transfer hearing after
arraignment, see part 2.b.iv, infra, this decision well may
affect the future proceedings in the Juvenile Court.
 7

was one of the proper procedure and timing of efforts to appeal,

did not reach the merits of the motion to dismiss, was

"important, likely to recur in similar circumstances, but also

likely to evade review in the normal course," and that the

juvenile had no other means by which to seek relief. See Acting

Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000).

Before us are the two questions raised in the juvenile's

petition for extraordinary relief: the scope of a Juvenile

Court judge's authority to hear a juvenile's motion to dismiss

for bad faith or inexcusable delay under G. L. c. 119, § 72A,

and, if such a motion is denied, whether the juvenile has the

right to an interlocutory appeal.

2. Discussion. a. Standard of review. "We will not

reverse an order of a single justice in a proceeding brought

pursuant to G. L. c. 211, § 3, absent an abuse of discretion or

other clear error of law. Thus, we review independently the

single justice's legal rulings to determine whether it is

erroneous.'" Commonwealth v. Bernardo B., 453 Mass. 158, 167

(2009), quoting Youngworth v. Commonwealth, 436 Mass. 608, 611

(2002).

"To facilitate this determination, this court previously

has exercised its power of review under {G. L.] c. 211, § 3, to

examine the merits of the case presented to the trial judge."

Commonwealth v. Nettis, 418 Mass. 715, 717 (1994), quoting
 8

Planned Parenthood League of Mass., Inc. v. Operation Rescue,

406 Mass. 701, 709 n.7 (1990). Accordingly, we begin with the

procedural issue presented to the Juvenile Court judge -- the

scope of her authority to hear the juvenile's motion to dismiss

prior to arraignment.

b. Judicial authority to hear motion to dismiss prior to

arraignment. As the motion judge recognized, the authority of

the Juvenile Court is limited by statute, and "must either be

articulated expressly or be capable of being deduced by

necessary and inevitable implication" (quotation and citation

omitted). Johnson v. Commonwealth, 409 Mass. 712, 716 (1991).

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

Mogelinski I, 466 Mass. at 645. To determine whether this

authority extends to resolving a motion to dismiss for

inexcusable or bad faith delay, we first must consider the role

of G. L. c. 119, § 72A, in the broader statutory framework that

defines the respective jurisdictions of the juvenile and adult

courts.

i. Transfer hearings under G. L. c. 119, § 72A. General

Laws c. 119, § 72A, provides:

"If a person commits an offense or violation prior to his
eighteenth birthday, and is not apprehended until after his
nineteenth birthday, the court, after a hearing, shall
determine whether there is probable cause to believe that
said person committed the offense charged, and shall, in
its discretion, either order that the person be discharged,
if satisfied that such discharge is consistent with the
 9

protection of the public; or, if the court is of the
opinion that the interests of the public require that such
person be tried for such offense or violation instead of
being discharged, the court shall dismiss the delinquency
complaint and cause a criminal complaint to be issued. The
case shall thereafter proceed according to the usual course
of criminal proceedings and in accordance with the
provisions of [G. L. c. 218, § 30,] and [G. L. c. 278,
§ 18]. Said hearing shall be held prior to, and separate
from, any trial on the merits of the charges alleged."

This language grants the Juvenile Court jurisdiction over

juveniles who commit a crime before they are eighteen, but who

are not "apprehended" -- meaning that no prosecution is

commenced against them -- until after they are at least nineteen

years old. See Mogelinski II, 473 Mass. at 171 ("G. L. c. 119,

§ 72A, confers jurisdiction in circumstances where . . . a

defendant otherwise would face no possibility of prosecution");

Mogelinski I, 466 Mass. at 635; Commonwealth v. Porges, 460

Mass. 525, 531 (2011) (discussing legislative efforts to ensure

juveniles do not slip through "cracks"). Where the Juvenile

Court exercises jurisdiction over a juvenile by virtue of its

authority under G. L. c. 119, § 72A, a Juvenile Court judge has

express authority to take one of two actions. The judge may

exercise his or her discretion to discharge the juvenile, in

which case no criminal prosecution will occur, or the judge

instead may dismiss the juvenile complaint and cause a criminal

complaint to be issued in the District Court, where "[t]he case
 10

shall thereafter proceed according to the usual course of

criminal proceedings." Id.

ii. Motion to dismiss for bad faith or inexcusable delay.

When the Commonwealth proceeds against a juvenile under G. L.

c. 119, § 72A, some degree of delay is inherent in the

prosecution. This delay often will result from circumstances

entirely beyond the Commonwealth's control. See, e.g., J.H. v.

Commonwealth, 479 Mass. 285, 293 (2018) ("As we discern no

indicia of bad faith from this record, and the timing of the

prosecution appears directly connected to the complainant's

willingness to proceed, we conclude that this argument [of bad

faith delay] has no merit"). Where other means of prosecution

are available, the possibility that a Juvenile Court judge might

exercise his or her discretion to discharge a juvenile serves as

a powerful disincentive from making use of G. L. c. 119, § 72A.

Given this, we consistently have expressed confidence that the

Commonwealth's resort to G. L. c. 119, § 72A, will be rare, and

will be exercised only where seeking a timely complaint or

indictment in the Juvenile Court was not feasible. See, e.g.,

Mogelinski II, 473 Mass. at 172.

Nonetheless, we have recognized that the transfer hearing

procedure of G. L. c. 119, § 72A, could, in theory, be misused

to proceed in an adult court against a person who committed an

offense as a juvenile. Under this scenario, the Commonwealth
 11

intentionally could delay proceeding against a juvenile until

after his or her nineteenth birthday, at which point the

juvenile would have "'aged out' of the Juvenile Court's

jurisdiction." See Commonwealth v. Nanny, 462 Mass. 798, 806

(2012). Such inexcusable or bad faith delay would deprive a

juvenile of certain advantages of the juvenile justice system.

See G. L. c. 119, § 53 (proceedings in Juvenile Court are not

"deemed criminal proceedings," and juveniles are "treated, not

as criminals, but as children in need of aid, encouragement and

guidance"); Commonwealth v. Humberto H., 466 Mass. 562, 575–576

(2013) ("the juvenile justice system is primarily

rehabilitative, cognizant of the inherent differences between

juvenile and adult offenders, and geared toward the correction

and redemption to society of delinquent children" [quotations

and citation omitted]).6

We have not identified an actual instance of such bad faith

or inexcusable delay; nor are we aware of any case where another

court in the Commonwealth has done so. In the event that such

delay occurs, however, we have provided a potential remedy for

an aggrieved juvenile. Because inexcusable or bad faith delay

could implicate due process concerns, see, e.g., Porges, 460

Mass. at 532 n.4, the "acknowledged remedy for delay" is

6 Of course, the most serious implication of delay is the
possibility of being committed to adult prison.
 12

dismissal of the charging instrument, Commonwealth v. Imbruglia,

377 Mass. 682, 688 (1979). On such a motion to dismiss, the

juvenile has the initial burden of raising the issue of bad

faith or inexcusable delay. Once the issue is raised, the

burden shifts to the Commonwealth to demonstrate the absence of

bad faith, including "the unfeasibility of timely seeking and

obtaining" alternative process. See Mogelinski I, 466 Mass. at

646 n.11. See also, e.g., J.H., 479 Mass. at 293.

iii. Timing of a motion to dismiss due to bad faith or

inexcusable delay. The question before us is not whether the

juvenile may pursue a motion to dismiss, but rather, when that

motion may be decided. To resolve this question involves two

separate inquiries: first, whether a Juvenile Court judge has

the authority to hear the motion at all and, if so, whether the

judge must arraign the juvenile before deciding the motion.

The authority of a Juvenile Court judge to decide a motion

to dismiss for bad faith or inexcusable delay is a "necessary

and inevitable implication" of the transfer hearing process

(quotation and citation omitted). See Johnson, 409 Mass. at

716. General Laws c. 119, § 72A, expressly grants a Juvenile

Court judge discretion to determine whether the public interest

requires that a juvenile be tried or discharged. To exercise

that discretion, a judge necessarily must have the authority to

consider the issue of prosecutorial delay. If the Commonwealth
 13

were to misuse the transfer hearing process through bad faith or

inexcusable delay, the interests of the public would be ill

served by permitting such a prosecution to proceed.

Unduly limiting the authority of a Juvenile Court judge to

consider these issues would frustrate one of the fundamental

purposes of G. L. c. 119, § 72A, i.e., empowering Juvenile Court

judges to decide "whether the prosecution may proceed

altogether." Nanny, 462 Mass. 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." Mogelinski II, 473 Mass. at 171, quoting Porges, 460

Mass. at 532.

We turn to consider whether a Juvenile Court judge has the

discretion to hear a motion to dismiss for inexcusable or bad

faith delay prior to arraignment, or may do so only after

arraignment. Following arraignment, "the juvenile's name and

delinquency charge become part of the juvenile's permanent

[court activity record information (CARI)] record, and may not

be expunged." See Humberto H., 466 Mass. at 572, citing

Commonwealth v. Gavin G., 437 Mass. 470, 473–474 (2002). If,

however, a Juvenile Court judge has discretion to dismiss a case

prior to arraignment, he or she may choose to spare the juvenile

from these "collateral consequences of a delinquency charge."

Humberto H., supra at 576.
 14

As a general rule, a Juvenile Court judge has no authority

to dismiss a complaint prior to arraignment. The decision to

arraign ordinarily is tantamount to a prosecutor's exclusive

discretion whether to prosecute a case. See Commonwealth v.

Newton N., 478 Mass. 747, 755–757 (2018). Arraignment is the

initial point at which a plea is entered, pretrial conferences

are scheduled, and the discovery process begins. See Mass. R.

Crim. P. 7, as appearing in 461 Mass. 1501 (2012); Mass. R.

Crim. P. 14, as appearing in 442 Mass. 1518 (2004). To dismiss

a valid complaint at this initial stage would "short-circuit[]

the adversary process by silencing the people's elected voice,"

and thereby "usurp[] the decision-making authority

constitutionally allocated to the executive branch."

Commonwealth v. Gordon, 410 Mass. 498, 500-501 (1991). This

would violate art. 30 of the Massachusetts Declaration of

Rights, which provides that "[i]n the government of this

commonwealth . . . the judicial [department] shall never

exercise the legislative and executive powers."

There are only two circumstances under which we have

recognized that a Juvenile Court judge may dismiss a complaint

prior to arraignment without running afoul of the separation of

powers set forth in art. 30. First, the Legislature

occasionally has expressly granted judges the discretion to

decide whether a prosecution may go forward without the need for
 15

conducting an arraignment. Second, in the absence of express

statutory authority, a Juvenile Court judge has discretion to

consider a motion to dismiss a complaint prior to arraignment

where that complaint on its face is not legally valid. See

Mogelinski II, 473 Mass. at 167 (lack of jurisdiction);7 Humberto

H., 466 Mass. at 575 (lack of probable cause). Neither of these

exceptions is applicable here.

Where the Legislature has intended to permit prearraignment

dismissal, it has stated so explicitly.8 General Laws c. 119,

§ 72A, is conspicuously silent on this point. Had the

Legislature sought to single out juveniles who are discharged

pursuant to G. L. c. 119, § 72A, and shield them from the

7 Here, the motion judge properly exercised her discretion
to decide, prior to arraignment, whether the complaint against
the juvenile established probable cause.

8 For some offenses, juveniles are now eligible by statute
to participate in pretrial, prearraignment diversion programs,
if a judge determines that a particular program would be
suitable for the juvenile, see G. L. c. 119, § 54A (b), inserted
by St. 2018, c. 69, § 75; or, with the Commonwealth's approval,
if the juvenile agrees to participate in a restorative justice
program, see G. L. c. 276B, § 2, inserted by St. 2018, c. 69,
§ 202. "A child complained of as a delinquent child may, upon
the request of the child, undergo an assessment prior to
arraignment to enable the judge to consider the suitability of
the child for diversion. . . . If a case is continued pursuant
to this subsection, the child shall not be arraigned and an
entry shall not be made into the criminal offender record
information system until a judge issues an order to resume the
ordinary processing of a delinquency proceeding" (emphasis
added). See Commonwealth v. Newberry, 483 Mass. 186, 194-195
(2019), quoting G. L. c. 119, § 54A (b).
 16

consequences of a CARI record, "it could have used similar

language; it chose not to do so." Commonwealth v. Newberry, 483

Mass. 186, 195 (2019). We will not read such additional

protections into this statute, particularly where doing so

unnecessarily would implicate separation of powers concerns.

See Commonwealth v. Dayton, 477 Mass. 224, 228 (2017) ("where

the Legislature used specific language in one part of an

enactment . . . , but not in another . . . , the language should

not be implied where it is not present").

In the absence of legislative authorization, a Juvenile

Court judge may also dismiss a complaint prior to arraignment

only where the complaint itself, on its face, is invalid.9 Cf.

Newton N., 478 Mass. at 755-756. Under such circumstances, the

judge may determine the issue of legal validity based on the

"four corners of the complaint," and without the need for an

evidentiary hearing. Commonwealth v. Orbin O., 478 Mass. 759,

762 (2018), quoting Humberto H. 466 Mass. at 565.

Assessing an allegation of inexcusable or bad faith

prosecutorial delay under G. L. c. 119, § 72A, presents a

substantially different inquiry. Such delay does not implicate

the validity of the delinquency complaint itself, or the

9 Here, the motion judge properly exercised her discretion
to decide, prior to arraignment, whether the complaint against
the juvenile established probable cause.
 17

jurisdiction of the Juvenile Court to hear it. Rather, it calls

into question whether a District Court ultimately may exercise

jurisdiction over the juvenile.

As noted supra, the legislatively prescribed vehicle for

determining whether the case should proceed to the District

Court is the second stage of the transfer hearing under G. L.

c. 119, § 72A. We repeatedly have recognized that the transfer

hearing in the Juvenile Court serves the same function as a

bind-over probable cause hearing in the District Court. See,

e.g., Nanny, 462 Mass. at 805. It is notable that when the

District Court does not exercise final jurisdiction over a

defendant pending a probable cause hearing, our rules of

criminal procedure nonetheless explicitly contemplate that an

arraignment must occur in the District Court. See Mass. R.

Crim. P. 7 (b) (4) ("At a District Court arraignment on a

complaint which is outside of the District Court's final

jurisdiction or on which jurisdiction is declined, the court

shall schedule the case for a probable cause hearing" [emphasis

added]). We see no reason to treat the analogous transfer

hearing under G. L. c. 119, § 72A, differently in this respect.

Moreover, a motion to dismiss for inexcusable or bad faith

delay cannot be resolved merely by referring to the face of the

complaint. While some delay will always be apparent in a

complaint subject to G. L. c. 119, § 72A, the presence of bad
 18

faith will not. Instead, the Juvenile Court judge likely would

need to hold an evidentiary hearing where the judge could

receive testimony from Commonwealth witnesses, such as

investigating officers, as to why a timely complaint or

indictment in the Juvenile Court was not feasible. At the very

least, because such an inquiry would occur as part of the

transfer hearing, the juvenile would have the opportunity to

"present a defense and cross-examine witnesses." Nanny, 462

Mass. at 805. This necessarily complex assessment is far

removed from a probable cause determination based on the four

corners of a complaint; it must be conducted following an

arraignment.

c. Right to immediate appeal. Finally, we turn to the

single justice's determination that the juvenile in this case

did not have a right to pursue an immediate appeal pursuant to

G. L. c. 211, § 3.

Our supervisory authority under G. L. c. 211, § 3, is

"exercised only in exceptional circumstances and where necessary

to protect substantive rights in the absence of an alternative,

effective remedy" (quotation and citation omitted). MacDougall

v. Commonwealth, 447 Mass. 505, 510 (2006). "Relief under G. L.

c. 211, § 3, is not available where the [defendant] has or had

adequate and effective avenues other than G. L. c. 211, § 3, by
 19

which to seek and obtain the requested relief" (citation

omitted). Lanoue v. Commonwealth, 427 Mass. 1014, 1015 (1998).

As we noted in our order permitting this appeal, "[i]n

general, 'there is no right to interlocutory review of the

denial of a motion to dismiss pursuant to G. L. c. 211, § 3.'"

N.M. v. Commonwealth, 478 Mass. 89, 91 (2017), quoting Flood v.

Commonwealth, 465 Mass. 1015, 1016 (2013). We have allowed such

appeals only in very narrow circumstances, where proceeding

without an appeal completely and irreparably would deprive a

defendant of his or her fundamental rights. See Gangi v.

Commonwealth, 462 Mass. 158, 160 n.2 (2012) (allowing

"temporarily" committed defendant to appeal from denial of

motion to dismiss sexually dangerous person petition "[i]n light

of his immediate liberty interest in resolution of this dispute"

[quotation and citation omitted]); McGuinness v. Commonwealth,

423 Mass. 1003, 1004 (1996) (permitting appeal from denial of

motion to dismiss on double jeopardy grounds).

Given that we ordinarily do not allow interlocutory review

of motions to dismiss, the single justice did not abuse her

discretion by declining to reach the merits of the juvenile's

claims. "A single justice, in his or her discretion, may . . .

properly decline to employ the court's extraordinary power of

general superintendence where exceptional circumstances are not

present." Aroian v. Commonwealth, 483 Mass. 1008, 1009 (2019),
 20

quoting Commonwealth v. Narea, 454 Mass. 1003, 1004 n.1 (2009).

Cf. Commonwealth v. Fontanez, 482 Mass. 22, 26 (2019) ("we

routinely uphold single justice denials of . . . petitions where

there are no novel, systemic, or case-determinative issues, or

other aspects that make the petitions exceptional").

Here, the single justice recognized that the juvenile had

other adequate avenues by which to obtain appellate review,

namely, by appeal following any subsequent conviction. The

single justice cited this court's decision in N.M., 478 Mass. at

91, and the Commonwealth's statements in its opposition, both of

which discuss just such a remedy. Thus, while the Juvenile

Court judge's conclusion that she lacked the authority to decide

the motion to dismiss was clearly erroneous, the single justice

was not compelled to address that error at the stage of the

proceeding before her. Cf. Commonwealth v. Richardson, 454

Mass. 1005, 1005–1006 (2009) ("We will review interlocutory

matters in criminal cases only when substantial claims of

irremediable error are presented . . . and only in exceptional

circumstances . . . where it becomes necessary to protect

substantive rights" [quotations and citation omitted]). Because

the single justice properly applied the standard of G. L.

c. 211, § 3, there was no abuse of discretion in denying the

petition.
 21

While the single justice did not err in declining to reach

the merits of the petition, we are not precluded from reaching

the procedural questions now. The second question remains:

whether a juvenile ordinarily may seek interlocutory review

under G. L. c. 211, § 3, from the denial of a motion to dismiss

under G. L. c. 119, § 72A, on the grounds of inexcusable delay

or bad faith. As this issue has been fully briefed, and is

capable of repetition yet evading review, we exercise our

discretion to resolve it. For the reasons discussed infra, we

conclude that a juvenile has no automatic right to an

interlocutory appeal from the denial of a motion to dismiss for

bad faith or inexcusable delay.

The juvenile maintains that when the Commonwealth

inexcusably delays in bringing a prosecution under G. L. c. 119,

§ 72A, the Juvenile Court has no jurisdiction to hear the case,

and the juvenile has the right not to be tried. To delay her

appeal until after the resolution of the criminal case against

her irreparably would deprive her of that right. Therefore, she

urges us to treat a motion to dismiss in such circumstances like

a motion to dismiss on double jeopardy grounds, and to permit

interlocutory appeal. Cf. McGuinness, 423 Mass. at 1004.

We do not agree. In our prior cases, we have noted that an

adult defendant may not appeal immediately from the denial of a

motion to dismiss on grounds similar to those at issue here,
 22

including undue preindictment delay, see King v. Commonwealth,

442 Mass. 1043, 1044 (2004), and even violations of due process,

see Jackson v. Commonwealth, 437 Mass. 1008, 1009 (2002). Nor

have we allowed an immediate appeal simply because a motion to

dismiss was considered and denied prior to arraignment. See

Brea v. Commonwealth, 473 Mass. 1012, 1013 (2015). Further,

even if we agreed with the juvenile that inexcusable delay could

deprive the Juvenile Court of jurisdiction, we previously have

concluded that the denial of a motion to dismiss for lack of

jurisdiction likewise is not immediately appealable. See

Fitzpatrick v. Commonwealth, 453 Mass. 1014, 1015 (2009); Gouin

v. Commonwealth, 439 Mass. 1013, 1013 (2003).

That the juvenile seeks to appeal from a decision of the

Juvenile Court does not alter our analysis. See A Juvenile v.

Commonwealth, 466 Mass. 1035, 1036 (2013) (applying G. L.

c. 211, § 3). In Fitzpatrick, 453 Mass. at 1015, we determined

that a juvenile had no right to immediate appeal from the denial

of a motion to dismiss for lack of jurisdiction where a judge of

the Juvenile Court transferred that juvenile's case to adult

court pursuant to G. L. c. 119, § 72A. We noted that, in the

event that the juvenile were to be convicted, "any error [could]

be adequately remedied in his direct appeal." Id. We

subsequently reached the same conclusion where a juvenile, like

the petitioner here, argued that the Commonwealth inexcusably
 23

delayed prosecution until the juvenile had aged out of the

jurisdiction of the Juvenile Court, necessitating resort to

G. L. c. 119, § 72A. See A Juvenile, supra.

The petitioner has presented no compelling reason to depart

from this reasoning, and thus to apply G. L. c. 211, § 3, more

expansively in her case. While we acknowledge that "the

ordinary appellate process will not restore the protective

nature of juvenile proceedings," should error later be

discovered, "even the absence of an adequate alternative remedy,

as the juvenile claims here, does not by itself make review

under G. L. c. 211, § 3, automatic." N.M., 478 Mass. at 92-93.

Finally, it is not a fait accompli that this juvenile

indeed will face the range of possible consequences of

prosecution as an adult; to date, no Juvenile Court judge has

concluded that her case should be transferred to adult court.

In the event that her case were to be transferred, and she

ultimately were to be convicted, she would be able to raise the

denial of her motion to dismiss for bad faith or inexcusable

delay on direct appeal.

Therefore, we affirm our earlier holding in A Juvenile, 466

Mass. at 1036, and conclude that a juvenile subject to G. L.

c. 119, § 72A, does not have a right to an immediate appeal

under G. L. c. 211, § 3, from the denial of a motion to dismiss

for bad faith or inexcusable prosecutorial delay.
 24

3. Conclusion. The matter is remanded to the county

court, where an order shall enter remanding the matter to the

Juvenile Court for further proceedings consistent with this

opinion.

So ordered.