Commonwealth v. Dones

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SJC-13271
              COMMONWEALTH   vs.   MIGUEL REMI DONES.



        Hampden.      December 7, 2022. – June 23, 2023.

 Present:   Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
                           & Georges, JJ.


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



     Indictment found and returned in the Superior Court
Department on February 8, 2021.

     Following transfer to the Hampden County Division of the
Juvenile Court Department, a motion to revise the sentence was
heard by David B. Paradis, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


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


    GEORGES, J.    At issue in this case is the question whether

a Juvenile Court judge may commit a youthful offender to the
                                                                     2


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

twenty-first birthday, and then suspend that commitment with

conditions of probation.     We conclude that a judge in the

Juvenile Court has such discretion to suspend a commitment in

that manner, and that the judge in this case did not abuse his

discretion in doing so.     We therefore affirm the denial of the

Commonwealth's motion to revise the juvenile's sentence.1

     1.     Background.   During a motor vehicle stop, a State

police trooper saw a firearm in plain view in the vehicle driven

by the juvenile, who was then seventeen years old.     The trooper

removed the juvenile from the vehicle and arrested him.     The

juvenile subsequently was indicted as a youthful offender, see

G. L. c. 119, § 54, on a charge of carrying a firearm without a

license, G. L. c. 269, § 10 (a).     Because the juvenile's family

was unable to post bail, the juvenile was held at a DYS facility

for eight months prior to entering into a plea agreement.

     In tendering his plea, the juvenile recommended a

continuation without a finding, with supervised probation and a

condition that he possess no weapons, until his nineteenth

birthday.    The Commonwealth recommended that the juvenile be

found guilty as a youthful offender and sentenced to eighteen




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


months in a house of correction.   After a plea colloquy, the

Juvenile Court judge adjudicated the juvenile to be a youthful

offender and ordered him committed to DYS until he reached the

age of twenty-one, pursuant to G. L. c. 119, § 58 (c).   The

judge then suspended the commitment pursuant to G. L. c. 279,

§ 2, with conditions of probation, see G. L. c. 276, § 87, until

the day before the juvenile's twenty-first birthday.

     As required by G. L. c. 119, § 58, fourth par.,2 prior to

imposing sentence, the judge conducted a sentencing

recommendation hearing and made a number of findings.    The

record shows that the judge considered all of the statutory

factors set out in that paragraph to the extent that they were




     2 General Laws c. 119, § 58, fourth par., provides in
relevant part:

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


applicable to the juvenile's offense.     The Commonwealth does not

dispute any of the judge's findings.

    The judge found that the juvenile lived with his mother,

father, and four brothers.     He was welcome in the family home

and got along with all of his family members.    He had a two year

old child and took an active role in raising that child.     With

respect to the juvenile's age and maturity level, the judge

noted that, at eighteen years old, the juvenile enjoyed playing

basketball, "hang[ing] out" with friends, and playing video

games.   The judge found that even though the juvenile was

"immature" for his age, he was young enough that "probation

and/or DYS" would "have time to work with him and assist in his

maturing process."

    With respect to the eight months that the juvenile spent in

a DYS facility awaiting disposition, the judge found that the

juvenile had done very well.     The juvenile was able to maintain

the highest behavioral level and earned recognition as the

"group member of the week" multiple times.     The juvenile met

with his clinician daily and actively participated in daily

psycho-educational groups, including substance use disorder

prevention, interpersonal effectiveness, and "DBT Mindfulness."

He did not instigate any problems, and if he was targeted by

peers, he was able to express his concerns to staff and to ask
                                                                     5


for help.   The judge also considered the Juvenile Court's

policies on dispositional and sentencing best practices.

    Based on his considerations of the sentencing policies and

all of his findings, the judge determined that, pursuant to

G. L. c. 119, § 58, the present and long-term safety of the

public would best be served by committing the juvenile to DYS

until he reached the age of twenty-one, with the commitment

suspended and conditions of probation imposed.     In addition to

the standard conditions of probation, the judge added a number

of special conditions:    that the juvenile must either obtain

employment or work toward a general equivalency diploma; that he

not possess drugs or alcohol and must submit to random screens;

and that he not possess firearms or other dangerous weapons.

    The Commonwealth then timely moved for a revision of the

juvenile's sentence.     Specifically, the Commonwealth challenged

the judge's decision to suspend the juvenile's commitment to DYS

and to place him on probation.    The judge denied the motion, and

the Commonwealth appealed to the Appeals Court.     We transferred

the matter to this court on our own motion.

    2.   Discussion.     This case requires us to consider the

interplay of four statutes:    G. L. c. 119, § 58, which, inter

alia, sets forth dispositional options for youthful offenders;

G. L. c. 279, § 2, which generally authorizes a Juvenile Court

judge to suspend a juvenile's commitment to DYS; G. L. c. 276,
                                                                     6


§ 87, which generally permits a judge of certain Trial Court

departments, including the Juvenile Court, to place a defendant

on probation; and G. L. c. 269, § 10 (a), which prescribes

punishments for unlawful possession of a firearm.    Whether these

statutes provide a Juvenile Court judge with the discretion to

suspend a youthful offender's commitment to DYS, with probation

being imposed in lieu of the committed sentence, is a legal

issue that we consider de novo.    See, e.g., Commonwealth v.

Beverly, 485 Mass. 1, 11 (2020).

    "As with all matters of statutory construction, our goal in

construing [a] . . . statute is to ascertain and effectuate the

intent of the Legislature."   Commonwealth v. Rossetti, 489 Mass.

589, 593 (2022), quoting Commonwealth v. Newberry, 483 Mass.

186, 192 (2019).   "[T]he language of the statute[s] . . . is

'the principal source of insight' into the intent of the

Legislature."   Id.   "Therefore, we start with the language of

the statute[s themselves] and presume, as we must, that the

Legislature intended what the words of the statute[s] say"

(quotations omitted).   Rossetti, supra, quoting Commonwealth v.

Williamson, 462 Mass. 676, 679 (2012).    If the legislation is

found to be ambiguous, we give the juvenile the benefit of the

ambiguity.   Commonwealth v. Connor C., 432 Mass. 635, 642

(2000), citing Charles C. v. Commonwealth, 415 Mass. 58, 70

(1993).
                                                                     7


       We begin with G. L. c. 119, § 58, a statute that is to "be

liberally construed so that the care, custody and discipline of

the children brought before the court shall approximate as

nearly as possible that which they should receive from their

parents, and that, as far as practicable, they shall be treated,

not as criminals, but as children in need of aid, encouragement

and guidance."   G. L. c. 119, § 53.   When a child is adjudicated

to be a youthful offender, G. L. c. 119, § 58, requires the

sentencing judge to impose one of three dispositional options:

       "(a) a sentence provided by law [for the criminal offense
       charged in the indictment]; or

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

       "(c) a commitment to the department of youth services until
       [the child] reaches the age of twenty-one."

Otherwise put, paragraph (a) authorizes the judge to impose the

most severe option, namely, "the punishment the child would

receive were [the child] an adult"; paragraph (b) authorizes an

intermediate "combination sentence"; and paragraph (c), "the

least severe option," authorizes a commitment to DYS until the

child reaches the age of twenty-one.    Connor C., 432 Mass. at

638.
                                                                   8


    Here, the judge determined that, given all of the

circumstances, the least severe option, commitment to DYS, was

appropriate.   The Commonwealth does not contest the judge's

decision to commit the juvenile to DYS pursuant to G. L. c. 119,

§ 58 (c), instead of imposing a more severe adult or combination

sentence under G. L. c. 119, § 58 (a) or (b).    Rather, the

Commonwealth takes issue with the judge's decision to suspend

the commitment to DYS and to place the juvenile on probation.

    As the Commonwealth points out, nothing in G. L. c. 119,

§ 58, expressly authorizes such a disposition.   At the same

time, however, nothing in the language of that section prohibits

a judge from suspending a commitment to DYS that has been

imposed upon a youthful offender pursuant to G. L. c. 119,

§ 58 (c).   By contrast, G. L. c. 119, § 58, seventh par.,3

expressly prohibits the suspension of a commitment to DYS


    3   General Laws c. 119, § 58, seventh par., provides:

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


imposed on a juvenile who has been adjudicated a delinquent

child by reason of a violation of, inter alia, G. L. c. 269,

§ 10 (a), the provision under which the juvenile here was

convicted as a youthful offender.    We held in Connor C., 432

Mass. at 645, that the seventh paragraph of G. L. c. 119, § 58,

by its plain language, applies only to delinquent children and

not to youthful offenders.   Accordingly, this provision does not

deprive a judge of the authority to suspend a youthful

offender's commitment to DYS.    Moreover, the fact that the

Legislature expressly prohibited the suspension of a delinquent

child's commitment to DYS shows that it knew how to preclude

suspension of a commitment to DYS if it chose to do so.     In the

nearly twenty-three years since this court's decision in

Connor C., the Legislature has not seen fit to do so with

respect to youthful offenders.    Cf. DiMasi v. Secretary of the

Commonwealth, 491 Mass. 186, 197 (2023), quoting Casseus v.

Eastern Bus Co., 478 Mass. 786, 796 (2018) (if Legislature had

intended different meaning from how statute was written, then

"the wording of the statute could have easily reflected [the

Legislature’s intent]").

    The Commonwealth argues that because G. L. c. 119,

§ 58 (b), authorizes a Juvenile Court judge to suspend the adult

portion of a combination sentence, the Legislature could have

also authorized the suspension of a commitment to DYS in G. L.
                                                                  10


c. 119, § 58 (c), but chose not to do so.   We do not agree.

General Laws c. 119, § 58 (b), does not bestow on a judge

discretionary authority to decide whether to suspend the adult

portion of such a sentence; the provision rather requires that

"[t]he adult sentence shall be suspended pending successful

completion of a term of probation, which shall include, but not

be limited to, the successful completion of the aforementioned

commitment to" DYS until the juvenile reaches the age of twenty-

one (emphasis added).   That a judge is required to suspend the

adult portion of a combination sentence under G. L. c. 119,

§ 58 (b), says nothing about a judge's discretion to suspend a

commitment to DYS under G. L. c. 119, § 58 (c).

    At first glance, it might appear incongruous to conclude

that where a juvenile violates G. L. c. 269, § 10 (a), the

commitment to DYS may not be suspended if the juvenile is

adjudicated a delinquent child, but may be suspended if the

juvenile is found to be a youthful offender.   The Legislature,

however, rationally could require a delinquent child to serve

out a commitment to DYS until the child reaches the age of

eighteen (or, in some cases, nineteen) while permitting judges

to decide to suspend the longer commitment of a youthful

offender until the age twenty-one.

    "[I]t is evident from the Legislature's over-all approach

to the sentencing of youthful offenders that it intended to give
                                                                   11


the sentencing judge wide latitude in fashioning a sentence that

best serves the needs of the community and the youthful

offender."   Commonwealth v. Lucret, 58 Mass. App. Ct. 624, 629

(2003).   Moreover, the Legislature presumably has been aware, at

least since our decision in Connor C., 432 Mass. at 638, 645-

646, that G. L. c. 119, § 58, seventh par., applies only to

delinquent children, and not to youthful offenders, and it has

not chosen to amend that provision.    "We do not read into the

statute a provision which the Legislature did not see fit to put

there, nor add words that the Legislature had an option to, but

chose not to include."    Commonwealth v. Williams, 481 Mass. 799,

807-808 (2019), quoting Commissioner of Correction v. Superior

Court Dep't of the Trial Court for the County of Worcester, 446

Mass. 123, 126, (2006).

    In addition, we note that certain other statutes expressly

provide a Juvenile Court judge the authority to suspend a

commitment to DYS and then to impose probation.   In particular,

G. L. c. 279, § 2, provides:

    "In all cases the execution of orders of commitment to any
    training school or reformatory, however named, the
    department of youth services, or the department of public
    welfare may be suspended, and such suspension continued or
    revoked, in the same manner and with the same effect as the
    execution of sentences in criminal cases."

This provision, by its plain terms, authorizes a Juvenile Court

judge to suspend an order committing a juvenile to DYS "[i]n all
                                                                   12


cases."   Contrary to the Commonwealth's argument, we do not read

the final phrase of G. L. c. 279, § 2 -- "in the same manner and

with the same effect as the execution of sentences in criminal

cases" -- as limiting a judge's authority to suspend a

commitment to DYS only in instances where an ordinary criminal

sentence could be suspended.

     The statutory language provides that a commitment to DYS

may be suspended "in the same manner and with the same effect"

as a criminal sentence, not that it may be suspended in the same

circumstances as a criminal sentence (emphasis added).     G. L.

c. 279, § 2.   In other words, the provision simply analogizes

the suspension of a DYS commitment to the suspension of a

criminal sentence, without limiting the judge's authority to

suspend the DYS commitment by any restrictions on suspension

that are enumerated in the criminal statute.4   In construing the

provision in this manner, we are mindful that juvenile justice

laws "shall be liberally construed," and that "[p]roceedings

against children under said sections shall not be deemed




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


criminal proceedings."   G. L. c. 119, § 53.5   Restricting

juvenile sentencing, even for youthful offenders, to adult

sentencing provisions, would be contrary to the plain statutory

language, as well as the Legislature's intent in adopting this

provision.   See Connor C., 432 Mass. at 641-642 (noting that

language of G. L. c. 119, § 53, "does not label a 'youthful

offender' proceeding as 'criminal'").   See also Commonwealth v.

Anderson, 461 Mass. 616, 630, cert. denied, 568 U.S. 946 (2012)

("an adjudication of a juvenile as a youthful offender . . .

does not transform [the juvenile's] illegal act from an act of

delinquency into a crime").   If the Legislature had intended to

limit a judge's authority in the manner the Commonwealth




    5  "Independent of the rule of lenity, we have said that
interpreting an ambiguous statute against a juvenile would
conflict with the statutory command of G. L. c. 119, § 53."
Commonwealth v. Samuel S., 476 Mass. 497, 506 (2017), citing
Commonwealth v. Hanson H., 464 Mass. 807, 810-813 (2013).
General Laws c. 119, § 53, "requires a liberal construction of
the juvenile justice laws in order to ensure that juveniles who
commit offenses are 'treated[] not as criminals, but as children
in need of aid, encouragement, and guidance.'" Samuel S.,
supra, quoting G. L. c. 119, § 53.

     To be sure, G. L. c. 119, § 53, mandates that liberal
construction shall apply to G. L. c. 119, §§ 52-63, and G. L.
c. 279, § 2, is not included within those sections. However,
this case requires us to consider G. L. c. 279, § 2, a provision
concerning the suspension of sentences to DYS, in light of our
interpretation of G. L. c. 119, § 58, and other juvenile justice
statutes. Therefore, the command of G. L. c. 119, § 53, is
instructive here. See Samuel S., 476 Mass. at 506.
                                                                   14


suggests, then it would have done so in plain and unambiguous

language.

     In determining whether the juvenile's sentence was

permissible, we also must consider the effect of certain

language in G. L. c. 269, § 10 (a).   General Laws c. 269,

§ 10 (a), first par., which prohibits unlawful possession of a

firearm, provides that a person who violates it shall be

punished by a minimum term in State prison or in a house of

correction, and that "[t]he sentence imposed on such person

shall not be reduced to less than [eighteen] months, nor

suspended."   This language plainly precludes a judge from

suspending an adult offender's committed sentence to less than a

period of eighteen months.   Two paragraphs later, the provision

states:

     "The provisions of [G. L. c. 276, § 87,6] shall not
     apply . . . to any child between ages fourteen and
     [eighteen] so charged, if the court is of the opinion that
     the interests of the public require that [the child] should
     be tried as an adult for such offense instead of being
     dealt with as a child."

G. L. c. 269, § 10 (a) (6), third par.


     6 General Laws c. 276, § 87, permits a Juvenile Court judge
to place

     "on probation in the care of [the court's] probation
     officer any person before it charged with an offense or a
     crime for such time and upon such conditions as it deems
     proper, with the defendant's consent, before trial and
     before a plea of guilty, or in any case after a finding or
     verdict of guilty."
                                                                  15


       Reading the paragraphs of G. L. c. 269, § 10 (a) (6), in

harmony with one another, see Hovagimian v. Concert Blue Hill,

LLC, 488 Mass. 237, 241 (2021), we conclude that the statutory

language in no way prohibits a Juvenile Court judge from

suspending a youthful offender's commitment to DYS.    While there

is such a prohibition for juveniles adjudicated delinquent for

violations of G. L. c. 269, § 10 (a), here, the Juvenile Court

judge sentenced the defendant as a youthful offender under the

"least severe" option under G. L. c. 119, § 58 -- commitment to

DYS.   Connor C., 432 Mass. at 638.   We again note that the

declared policy of G. L. c. 119, § 53, is that the "operative

provisions of the [juvenile sentencing] statutes shall be

liberally construed to require rehabilitative 'aid,

encouragement and guidance' rather than criminal dispositions

for children who offend."    Id. at 641 ("the provisions of the

1996 amendments [to the juvenile sentencing provisions of G. L.

c. 119, §§ 52-63,] did not eviscerate the longstanding principle

that the treatment of children who offend our laws are not

criminal proceedings").

       Accordingly, a judge's determination that a juvenile should

be sentenced as a youthful offender under G. L. c. 119, § 58,

does not amount to an adjudication of the juvenile in a criminal

proceeding that would implicate adult sentencing requirements.

See Connor C., 432 Mass. at 646 ("an 'adjudication' that a child
                                                                  16


has violated a law generally is not a 'conviction' of a crime").

Here, the judge was not bound by the language in G. L. c. 269,

§ 10 (a), that prohibited suspended sentences for "any person

convicted under [that] subsection."7   Cf., Commonwealth v. Hanson

H., 464 Mass. 807, 813-814 (2013) (for purposes of sentencing

statute, phrase "[a]ny person" did not include juveniles, but

only adults, due to "the inherent differences between juvenile

and adult offenders").   As a result, the judge was within his

discretion in suspending the juvenile's commitment pursuant to

G. L. c. 276, § 87.   In so holding, we bear in mind that the

ultimate "goal of our juvenile system is to act in the best

interests of children by encouraging and helping them to become

law-abiding and productive members of society, and not to label

and treat them as criminals."   Connor C., supra.




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


    3.   Conclusion.   The order denying the Commonwealth's

motion to revise the juvenile's sentence is affirmed.

                                    So ordered.