Judicial Court, Superintendence of inferior courts. Practice,
Criminal, Indictment, Dismissal. Youthful Offender Act.
Veronica J. White for the petitioner.
petitioner, Ronaldo Cepeda, appeals from a judgment of a
single justice of this court denying his petition pursuant to
G. L. c. 211, § 3. We affirm.
has been indicted for murder in the second degree, stemming
from an incident that occurred on October 22, 2015. Cepeda
was sixteen years old at the time. He moved to dismiss the
indictment on the basis that "the Commonwealth failed to
present material exculpatory and mitigating evidence to the
grand jury, and that the grand jury was not properly
instructed regarding the impact of a developing brain on
threat response and decision making of a juvenile." A
judge in the Superior Court denied the motion. Cepeda then
filed his G. L. c. 211, § 3, petition in the county
petition, he argued, among other things, that, following this
court's decision in Commonwealth v.
Walczak, 463 Mass. 808 (2012), when the Commonwealth
seeks to indict a juvenile the grand jury must be instructed
on the basic differences between juvenile and adult brains.
In the Walczak case, the court concluded that
"where the Commonwealth seeks to indict a juvenile for
murder and where there is substantial evidence of mitigating
circumstances or defenses (other than lack of criminal
responsibility) presented to the grand jury, the prosecutor
shall instruct the grand jury on the elements of murder and
on the significance of mitigating circumstances and
Id. at 810. In Cepeda's view, the required
instructions will only be effective if the grand jury are
also instructed on juvenile brain development. Essentially,
his concern lies with the difference between an indictment
for murder, pursuant to which the Commonwealth would proceed
against him as an adult in the Superior Court, and an
indictment for manslaughter, pursuant to which the
Commonwealth would proceed against him in the Juvenile Court.
In other words, if the grand jury were presented with
information related to juvenile brain development, they would
be better able to assess whether to indict the defendant as
an adult (for murder) or as a juvenile (for manslaughter).
single justice denied the petition without a hearing, and the
case is now before us pursuant to S.J.C. Rule 2:21, as
amended, 434 Mass. 1301 (2001). That rule applies where, as
here, a single justice has denied relief from a challenged
interlocutory ruling of the trial court, and requires Cepeda
to show that "review of the trial court decision cannot
adequately be obtained on appeal from any final adverse
judgment in the trial court or by other available
means." S.J.C. Rule 2:21 (2). Cepeda argues that he has
no adequate alternative remedy because if the indictment for
murder stands, and the Commonwealth thus proceeds against him
as an adult, he will lose the protections that would
otherwise be afforded to him if he were instead tried on a
charge of manslaughter in the Juvenile Court.
argument is unavailing. We have said repeatedly that
"[t]he denial of a motion to dismiss in a criminal case
is not appealable until after trial, and we have indicated
many times that G. L. c. 211, § 3, may not be used to
circumvent that rule. Unless a single justice decides the
matter on the merits or reserves and reports it to the full
court, neither of which occurred here, a defendant cannot
receive review under G. L. c. 211, § 3, from the denial
of his motion to dismiss." Bateman v.
Commonwealth, 449 Mass. 1024, 1024-1025 (2007), quoting
Jackson v. Commonwealth, 437 Mass. 1008,
1009 (2002). See Ventresco v. Commonwealth, 409
Mass. 82, 83-84 (1991), and cases cited. In other words,
while a single justice may, in his or her discretion,
entertain a petition on the merits, the petitioner is not
entitled as a matter of right to require the single justice
to do so.
we recently considered and rejected arguments similar to
those that Cepeda makes here in N.M. v.
Commonwealth, 478 Mass. 89 (2017). In that case, we
addressed "whether a juvenile, who ha[d] been indicted
as a youthful offender, [was] entitled as of right to
interlocutory review of a denial of a motion to dismiss that
indictment." Id. at 89. We concluded that there
is no such entitlement. See id. In doing so, we
"the ordinary appellate process will not restore the
protective nature of juvenile proceedings if it is later
determined that the juvenile has been erroneously tried as a
youthful offender. Nonetheless, [the] claims are not akin to
a 'right not to be tried, ' a right we have protected
by recognizing a very limited exception to the general rule
against interlocutory appeal for a petition from relief from
the denial of a motion to dismiss on double jeopardy
Id. at 92, citing Forlizzi v.
Commonwealth, 471 Mass. 1011, 1013 (2015). As in
N.M., supra at 93, Cepeda's claims here
"involve a . . . right to be tried in a different forum,
not the right not to be tried at all, and the limited
exception [in cases involving a right not to be tried] does
not apply." There is no reason why the issues that
Cepeda raises cannot adequately be addressed in an appeal
from any conviction, which would provide appropriate relief
single justice did not err or abuse her discretion in denying