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21-P-1113 Appeals Court
COMMONWEALTH vs. STEVE S., a juvenile.
No. 21-P-1113.
Essex. October 5, 2023. – January 19, 2024.
Present: Wolohojian, Desmond, & Sacks, JJ.
Delinquent Child. Juvenile Court, Delinquent child. Practice,
Criminal, Juvenile delinquency proceeding, Sentence,
Retroactivity of judicial holding, Presumptions and burden
of proof. Retroactivity of Judicial Holding.
Complaint received and sworn to in the Essex County
Division of the Juvenile Court Department on February 4, 2021.
The case was heard by Kerry A. Ahern, J., and a motion to
continue sentencing was heard by her.
Caroline I. Alpert for the juvenile.
Emily R. Mello, Assistant District Attorney, for the
Commonwealth.
WOLOHOJIAN, J. Approximately one month before his
eighteenth birthday, the juvenile was adjudicated delinquent for
having committed assault and battery on a family or household
member in violation of G. L. c. 265, § 13M (a). At the end of
the trial, the Commonwealth moved to continue sentencing until
2
after the juvenile turned eighteen. The Juvenile Court judge
allowed the motion after an evidentiary hearing. She did so on
the ground that the juvenile's desperate need of aid,
encouragement, and guidance could not be satisfied in the
limited time before he turned eighteen, and that it was in the
juvenile's best interest to postpone sentencing so that he could
obtain services necessary for his rehabilitation. The juvenile
has appealed.
While the appeal has been pending, the Supreme Judicial
Court decided Noah N. v. Commonwealth, 489 Mass. 498 (2022)
(Noah N.), in which it held that a judge is permitted to allow a
continuance beyond a juvenile's eighteenth birthday for the sole
purpose of extending the time of commitment, but only after the
judge conducts an evidentiary hearing and makes express findings
to the effect that the continuance is necessary to ensure the
rehabilitation of the juvenile. Id. at 502-503. The court
placed the burden on the Commonwealth to prove by clear and
convincing evidence that continued commitment is necessary to
ensure the juvenile's rehabilitation. Id. at 503.
The juvenile argues that Noah N. announced a new rule that
should not apply retroactively to him. In the alternative, the
juvenile argues that the requirements of Noah N. were not
satisfied in this case. Further, relying on Apprendi v. New
Jersey, 530 U.S. 466 (2000) (Apprendi), the juvenile argues that
3
the framework established in Noah N. violates his rights under
the Fifth and Sixth Amendments to the United States Constitution
because it permits a judge to extend a sentence merely upon a
showing by clear and convincing evidence, instead of reserving
that determination to a jury upon proof beyond a reasonable
doubt. Finally, the juvenile argues that his due process rights
were violated because the delay in sentencing gave the
Commonwealth a "tactical advantage." We affirm the adjudication
of delinquency and the order allowing the motion to continue.1
Background. On February 4, 2021, approximately four months
before the juvenile was to turn eighteen, he was charged with
assault and battery on a family or household member, in
violation of G. L. c. 265, § 13M (a). The juvenile and his
counsel pursued a strategy to have the charge tried before he
turned eighteen to attempt to prevent the judge from sentencing
him beyond that age. See G. L. c. 119, § 58. To that end,
believing that a bench trial was likely to be scheduled sooner
than a jury trial, the juvenile waived his right to a jury
trial.
1 The Commonwealth agrees that this appeal is not moot, even
though the juvenile's commitment to the custody of the
Department of Youth Services (DYS) has ended, and he is now over
twenty years old. We are of the same view and conclude, for the
reasons explained in Matter of a Minor, 484 Mass. 295, 299-300
(2020), that the juvenile has a surviving interest in
establishing that the commitment order was not lawfully issued.
4
As the juvenile and his counsel hoped, the case was tried
over two days approximately one month before the juvenile's
eighteenth birthday. At the conclusion of the trial, the judge
adjudged the juvenile delinquent. The juvenile does not
challenge the adjudication of delinquency on appeal on
evidentiary grounds, and we now recite the facts underlying the
adjudication as the judge found them.2
In 2018, the juvenile -- six feet, two inches tall and
weighing 210 pounds -- and the victim -- four feet, eleven
inches tall and weighing 118 pounds -- began an intimate
relationship. The victim ended the relationship around January
2021, after she discovered that the juvenile had been cheating.
The following month, on February 3, 2021, the victim went to the
juvenile's home to talk. After a conversation lasting around
fifteen to twenty minutes, the victim said she wanted to go
home. The juvenile grabbed her arm to prevent her from leaving
and threw her onto his bed. When the victim again attempted to
leave and repeated that she wished to go home, the juvenile
struck her, causing her to fall back onto the bed. The juvenile
then repeatedly punched, slapped, and spit at the victim, who
went into a fetal position, covering her face with her arms.
2 The judge made detailed and comprehensive written findings
of fact in her decision on the motion to continue sentencing,
and we draw our recitation of the facts from those findings.
5
Despite the victim's request that he stop, the juvenile
continued to beat her while atop her and said, "[S]hut the fuck
up bitch." Eventually, the juvenile stood up and told the
victim, "I fucking love you, don't you fucking get it." When
the victim then attempted to leave, the juvenile again called
her a "bitch," punched her in the back of the head, and caused
her to fall to her knees. He then grabbed the victim by the
hair and dragged her through the bedroom. Eventually, the
victim was able to leave the juvenile's room and called 911.3
Officers responded quickly and found the victim crying, with
visible scratches on her hand and both sides of her neck. The
victim was taken to a hospital where she was treated for
approximately three hours. At the time of the trial, she
continued to suffer long-term injuries from the assault and was
attending ongoing physical therapy twice a week for injury to
her spine and for pain while sitting or walking.
The juvenile moved for immediate sentencing as soon as the
judge adjudged the juvenile delinquent at the conclusion of the
trial. The Commonwealth moved to stay sentencing until after
the juvenile's eighteenth birthday, a request the juvenile
opposed. At the beginning of the ensuing evidentiary hearing,
before she allowed extensive argument from counsel, the judge
3 Members of the juvenile's family attempted to interfere
with the victim's 911 call.
6
stated that she was inclined to allow the motion and explained
her reasoning as follows:
"So when I think about what transpired here -- this was a
horrific beating that transpired involving an intimate
partner of his -- the goals of the juvenile court are to
make sure that [the juvenile] receives the treatment
necessary in order to make sure that he has the services in
place, that he gains insight as to what transpired here, to
make sure that he goes on into adulthood he has the
capacity, understanding, and ability to control himself and
to engage in a safe and appropriate relationship with
individuals of the opposite sex.
"So I can't imagine that in three weeks, which I think is
his -- his birthday is mid-June -- that that's going to be
accomplished by sentencing him for a three-week sentence."
The judge also expressly stated that she was "not looking at
punishment, . . . [but] at engagement in services to make sure
that [the juvenile] engage[s] in intimate partner abuse
prevention, to make sure he receives the counseling necessary in
order to be able to prevent that type of thing." The judge
repeated during the course of argument that "given the time
periods and the particulars of this case, I don't see that it
is[] reasonable in any way, shape, or form to commit him to
[the] D[epartment of] Y[outh] S[ervices] [DYS] for three weeks.
It wouldn't even entail the start of services in that time
period."4
4 The judge also gave weight to the juvenile's delinquency
record as well as to the fact that the juvenile had violated
probation in the past and was therefore not a good candidate for
probation. The judge also considered that, even if probation
7
Counsel for the juvenile then asked to call a witness from
DYS and to present additional evidence. The judge allowed both
requests. Prior to the introduction of this evidence, the judge
permitted the victim to make a victim impact statement. The
victim laid out the details of the assault and its continuing
psychological and physical effects. The judge then repeated the
basis for her ruling to continue sentencing:
"So again, as I stated, taking into consideration the
nature and circumstances of this offense, the victim impact
statement, the juvenile's delinquency record which, as I
indicated, includes a continuation without a finding and a
commitment to DYS for similar offenses, assault and battery
type violent offenses, the lack of success that he has had
on probation, and the concerns the [c]ourt has in not
addressing the violence that has been on display here for
the past two days,[5] I didn't think it serves his interests
or meets the needs and interest of the [J]uvenile [C]ourt
in committing him for three weeks."
The juvenile then presented additional evidence, including the
testimony of the juvenile's DYS caseworker. The caseworker, who
had worked with the juvenile for three years, testified that the
juvenile would benefit from additional DYS services, including
individual therapy, prosocial activities in the community, and
family work. He also testified that, should the juvenile be
were available, a one-month probation would not allow sufficient
services to rehabilitate the juvenile.
5 The judge was apparently referring to the testimonial
evidence of violence during the assault on the victim. The
record does not suggest that there was violence on display in
the courthouse during the trial.
8
committed to DYS custody after he turned eighteen, he would be
released to the community with services after three to five
months.6
After further discussion of issues that are not implicated
in this appeal, the judge then allowed the Commonwealth's motion
and continued sentencing to the day after the juvenile was to
turn eighteen. The judge subsequently issued a detailed written
memorandum of decision containing a nuanced analysis of the
issue and explained, among other things, that her
"paramount concern [wa]s that the [j]uvenile in this matter
is in desperate need of aid, encouragement, and guidance.
The purpose of committing a [j]uvenile after a finding of
delinquency is not only correction, but the redemption to
society of the offending child. These goals cannot be
satisfied within the narrow window of time between when the
juvenile was adjudicated delinquent and when he turns
eighteen. Therefore, it would not be in the 'best
interest' of the [j]uvenile here to move forward with
sentencing that would fail to adequately 'encourag[e] and
help[ ] [him] to become [a] law-abiding and productive
member[ ] of society.'" (Quotation and citations omitted.)
See Commonwealth v. Magnus M., 461 Mass. 459, 461, 466 (2012).
Sentencing occurred on June 24, 2021, the day after the
juvenile's eighteenth birthday, and the juvenile was committed
to DYS custody until he turned nineteen. This appeal followed.
Discussion. The juvenile's overarching argument is that
the judge abused her discretion or committed other error of law
6 The juvenile argues, based on the caseworker's testimony,
that should the judge continue sentencing, the juvenile would
not receive services until the continued date.
9
by allowing the motion to continue sentencing until after the
juvenile turned eighteen. Within that overarching argument, the
juvenile makes a number of subsidiary arguments that are in some
form or fashion driven by the Supreme Judicial Court's decision
in Noah N., which was decided after the judge allowed the motion
to continue and while this appeal has been pending. We
accordingly begin our analysis with Noah N.
When the juvenile in Noah N. was seventeen years old, he
was charged in a delinquency complaint with assault and battery
on a family or household member. See Noah N., 489 Mass. at 499.
Approximately one month before he was to turn eighteen, he filed
a tender of plea or admission to the charge. Id. The
Commonwealth then requested a continuance of the change of plea
hearing "for the express purpose of delaying the case's
disposition until after the juvenile's eighteenth birthday."
Id. The Juvenile Court judge allowed the Commonwealth's motion,
and accordingly, Noah's eighteenth birthday passed without his
plea being tendered. Id. On appeal to the Supreme Judicial
Court, Noah argued that because he had sought to tender a plea
when he was seventeen, he should have benefited from the
provisions of G. L. c. 119, § 58, second par., which required
that any commitment to DYS custody end when he turned eighteen.7
7General Laws c. 119, § 58, second par., provides in
relevant part:
10
Noah N., supra at 501. Noah argued that allowing a continuance
for the sole purpose of committing him until age nineteen was
contrary to the statute. Id.
The Supreme Judicial Court noted that § 58 does not
expressly address continuances, stating,
"This is understandable, as continuances are an ordinary
aspect of an orderly judicial process. If a case is
continued for reasons related to the judicial process and
unrelated to extending the time of commitment, then the
statutory requirements for extending such time of
commitment are clearly met. Allowing continuances for the
sole purpose of extending the commitment period are,
however, different. Such continuances, if they do not
otherwise serve the purposes of the judicial process,
intrude on the Legislature's authority to set limits on the
time of commitment. Allowing continuances for this reason
alone raises the question whether the statutory language
regarding disposal of cases is being manipulated to extend
the time of commitment beyond what the Legislature
intended."
Noah N., 489 Mass. at 501. Accordingly, the court held that
"[w]here a request for a continuance has nothing to do with
the orderly disposition of the case, but rather is directed
at the timing of the juvenile's impending eighteenth
birthday, and at extending the time of commitment beyond
that ordinarily authorized by statute, the ample discretion
allowed Juvenile Court judges is tightly constrained. A
continuance may only be allowed in such circumstances if it
"If a child is adjudicated a delinquent child on a
complaint, the court . . . may commit him [or her] to the
custody of [DYS], but the . . . 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 [or she] has attained his [or
her] eighteenth birthday or age [twenty] in the case of a
child whose case is disposed of after he [or she] has
attained his [or her] nineteenth birthday."
11
is necessary to ensure the rehabilitation of the juvenile
and express findings are made to that effect."
Id. at 502. The court required that the judge hold an
evidentiary hearing, and that the "Commonwealth bears the burden
of proving by clear and convincing evidence the necessity of
continued commitment to ensure the rehabilitation of the
juvenile." Id. at 503.
Noah N., as we have already noted, was decided after the
judge in this case allowed the continuance on appeal here.
There is no doubt that Noah N. announced new rules with respect
to the legal standard for allowing a motion to continue for the
sole purpose of extending the time for which a juvenile may be
committed, to the need for an evidentiary hearing before
allowing such a motion, and to the Commonwealth's burden of
proof.8 See Commonwealth v. Sylvain, 466 Mass. 422, 428 (2013),
S.C., 473 Mass. 832 (2016), quoting Teague v. Lane, 489 U.S.
8 Prior to Noah N., continuances in delinquency proceedings
needed only to be assessed against the requirements of the rules
of criminal procedure, which permit continuances "only when
based upon cause and only when necessary to insure that the
interests of justice are served." Mass. R. Crim. P. 10 (a) (1),
378 Mass. 861 (1979). "In most cases, 'cause' refers to reasons
related to the orderly processing of cases." Noah N., 489 Mass.
at 502. Rehabilitation, which is the central purpose of
juvenile justice, could and can satisfy rule 10 (a) (1)'s
requirement that an extension be in "the interests of justice."
Id. However, prior to Noah N., there was no requirement that
the Commonwealth prove the need for rehabilitation by clear and
convincing evidence, or that the judge conduct an evidentiary
hearing and make express findings regarding the need for
rehabilitation.
12
288, 301 (1989) ("a case announces a new rule when it breaks new
ground or imposes a new obligation . . . [or] if the result was
not dictated by precedent existing at the time the [adjudication
of delinquency] became final" [emphasis in original]). Although
a new rule does not generally have retroactive application, it
will apply retroactively to cases -- such as this one -- that
are pending on direct appeal when the new rule is announced.
See Diatchenko v. District Attorney for the Suffolk Dist., 466
Mass. 655, 664 (2013), S.C., 471 Mass. 12 (2015). We
accordingly disagree with the juvenile's argument that Noah N.
does not apply retroactively to him.
Alternatively, the juvenile argues that the requirements of
Noah N. were not satisfied. We begin by noting that the judge,
with remarkable prescience, foresaw Noah N.'s core requirement
that the continuance be necessary for the juvenile's
rehabilitation. Moreover, the judge anticipated and satisfied
Noah N.'s requirements that she conduct an evidentiary hearing
and make detailed findings. In other words, the central
purpose, thrust, and procedural safeguards of Noah N. were
clearly satisfied. But the juvenile contends that what happened
here nonetheless fell short of what was required. Specifically,
the juvenile points to the fact that the Commonwealth presented
no evidence during the evidentiary portion of the hearing on the
motion to continue, and that the judge did not state the
13
evidentiary standard by which she assessed the juvenile's need
for rehabilitation. The juvenile argues that both shortcomings
are fatal.
As to the first, although Noah N. clearly places the burden
on the Commonwealth to prove by clear and convincing evidence
that the continuance is necessary for the juvenile's
rehabilitation, the opinion does not suggest that trial evidence
cannot be used to meet the Commonwealth's burden. Nor does Noah
N. stand for the proposition that the Commonwealth must
introduce evidence of the juvenile's need for rehabilitation
twice: once at trial, and again at the time of the evidentiary
hearing on the motion to continue. The circumstances in Noah N.
were materially different than those presented here. In Noah
N., the motion to continue was filed pretrial, no evidentiary
proceeding bearing on the juvenile's need for rehabilitation had
yet occurred during the case and, as a result, there was no
evidence upon which the judge could have made the required
findings regarding the need for rehabilitation. Here, by
contrast, the motion to continue came directly on the heels of a
bench trial during which ample evidence had been introduced to
support the required findings regarding the juvenile's need for
rehabilitation. And, in addition, the judge was the trier of
fact for both the trial and the motion to continue.
14
As to the second, it is true that the judge did not state
that she was applying a clear and convincing standard in
assessing the juvenile's need for rehabilitation.9 We have
accordingly considered whether the matter should be remanded,
because it is ordinarily for the trial court judge to make such
a determination in the first instance -- not us.10 Cf. Adoption
of Eden, 88 Mass. App. Ct. 293, 296 (2015) ("it is for the trial
judge, not us, to determine in the first instance whether
unfitness has been proven by clear and convincing evidence, and
whether termination of parental rights is in the best interests
of the children"). Importantly, the juvenile does not contend
that any of the judge's extensive and detailed subsidiary
findings made in connection with the motion to continue is
clearly erroneous. Nor does the juvenile challenge the
subsidiary findings underlying the adjudication of delinquency
that, as a matter of law, were required to be made upon proof
beyond a reasonable doubt. G. L. c. 119, § 58, first par.;
Magnus M., 461 Mass. at 462-463. In these circumstances, we are
in sufficient position to review whether clear and convincing
evidence supported the judge's ultimate determination that the
9 This is no fault of the judge who, after all, did not have
the benefit of Noah N. when acting on the motion to continue.
See Noah N., 489 Mass. at 503 n.5.
10The juvenile does not seek a remand, which he views as an
empty exercise since he has already turned twenty.
15
juvenile was in need of rehabilitation. Cf. Doe, Sex Offender
Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass.
643, 657 & n.4 (2019) (where requirement of explicit finding on
clear and convincing evidence not created until after
administrative decision, court retains discretion to determine
whether factual record is sufficiently clear that remand to
apply heightened burden of proof is unnecessary).
"Proof by clear and convincing evidence is 'not without
teeth[,]' . . . [and] [t]he evidence must be sufficient to
convey a 'high degree of probability' that the contested
proposition is true." Doe, Sex Offender Registry Bd. No. 380316
v. Sex Offender Registry Bd., 473 Mass. 297, 309 (2015), quoting
Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 588
n.3 (1977). This "means that '[t]he requisite proof must be
strong and positive; it must be "full, clear and decisive."'"
Adoption of Chad, 94 Mass. App. Ct. 828, 838 (2019), quoting
Adoption of Iris, 43 Mass. App. Ct. 95, 105 (1997). Without
repeating the judge's findings, which we have already set out,
the standard was easily met here.
The juvenile next argues that the Noah N. framework
conflicts with the requirements of Apprendi, and violates his
rights under the Fifth and Sixth Amendments because it permits a
judge to extend a sentence merely upon a showing by clear and
convincing evidence, instead of reserving that determination to
16
a jury upon proof beyond a reasonable doubt. Apprendi holds
that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Apprendi, 530 U.S. at 490. See
Commonwealth v. Denehy, 466 Mass. 723, 736 (2014), quoting
Alleyne v. United States, 570 U.S. 99, 112, 114-115 (2013)
(Apprendi applies to "any fact that aggravates the punishment,
either by raising the floor or the ceiling, such that 'the fact
. . . alters the prescribed range of sentences to which a
criminal defendant is exposed'"). Cf. Lazlo L. v. Commonwealth,
482 Mass. 325, 330 (2019) ("a deprivation of liberty imposed by
the State as a direct consequence of being found delinquent for
having committed an offense necessarily includes an element of
punishment"); Commonwealth v. Quincy Q., 434 Mass. 859, 864-865
(2001) (acknowledging that, under Apprendi, any fact necessary
to increase delinquent juvenile's penalty beyond statutory
maximum commitment to DYS must be proved to jury beyond
reasonable doubt). "The 'statutory maximum' for Apprendi
purposes is the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted
by the defendant." Southern Union Co. v. United States, 567
U.S. 343, 348 (2012), quoting Blakely v. Washington, 542 U.S.
296, 303 (2004).
17
Here, G. L. c. 119, § 58, limited the seventeen year old
juvenile's potential sentence to a maximum commitment to DYS
custody to age eighteen. Noah N., however, permits a judge to
allow a continuance for the sole purpose of committing a
juvenile beyond the statutory maximum if the judge finds, upon
clear and convincing proof, that a longer period of commitment
is necessary for the juvenile's rehabilitation. The juvenile's
need for rehabilitation is not a fact reflected in the
adjudication of delinquency for assault and battery on a
household or family member. It follows, the juvenile argues,
that the framework established in Noah N. is in conflict with
Apprendi because the juvenile's need for rehabilitation should
have been determined by a jury upon proof beyond a reasonable
doubt.11
Whatever merit this interesting argument may have, it is
not for us to decide it. "[W]e have no power to alter, overrule
or decline to follow the holding of cases the Supreme Judicial
Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct.
476, 485 (2003). It is for the Supreme Judicial Court to
11The juvenile does not attempt to explain what
significance, if any, his waiver of trial by jury has on this
argument. Nor does it appear he has considered whether
requiring a jury trial on the question of rehabilitation could
result in delay beyond the juvenile's eighteenth birthday itself
affecting the juvenile's potential sentence.
18
determine whether Noah N. is in irreconcilable tension with
Apprendi, not us.12
Finally, the juvenile argues that the continuance gave the
Commonwealth a tactical advantage in violation of his due
process rights. The main weakness in this argument is that the
juvenile fails to articulate what tactical advantage the
Commonwealth obtained from the continuance. Cf. Commonwealth v.
Imbruglia, 377 Mass. 682, 691 (1979) (pretrial delay
intentionally undertaken to gain tactical advantage is
impermissible). The case had already been tried, and the judge
had already adjudged the juvenile delinquent before the
Commonwealth moved for a continuance. Furthermore, the juvenile
misapprehends the purpose of the continuance, which was not to
advantage the Commonwealth but to help ensure the juvenile's
rehabilitation.
There was no error in the order allowing the motion for a
continuance.
Judgment affirmed.
Order allowing motion to
continue sentencing
affirmed.
12We requested and received the briefs filed in Noah N.,
and we note that the Supreme Judicial Court does not appear to
have been alerted to the potential interplay between Apprendi
and the standard for allowing a continuance for the sole purpose
of extending sentence in a delinquency proceeding.