Heard: November 8, 2017.
found and returned in the Superior Court Department on July
transfer to the Suffolk County Division of the Juvenile Court
Department, a motion to dismiss was heard by Peter M. Coyne,
M. Tilley, Assistant District Attorney (Michael V. Glennon,
Assistant District Attorney, also present) for the
Melissa Allen Celli for the defendant.
Present: Milkey, Blake, & Singh, JJ.
jury indicted the defendant as a youthful offender after he
had turned eighteen years old. Relying on Commonwealth v.
Mogelinski, 466 Mass. 627 (2013) (Mogelinski
I), a Juvenile Court judge dismissed the indictments for
want of jurisdiction. For the reasons that follow, we reverse
and order that the indictments be reinstated.
relevant facts are undisputed. On April 20, 2016, Boston
police arrested the defendant on a variety of charges related
to an armed home invasion that occurred that day. He was
seventeen years old at that time. After his arrest, the
police took him to a Department of Youth Services (DYS)
facility. The following day, a twelve-count delinquency
complaint was issued, and a second delinquency complaint that
included two additional charges was issued a day later. The
defendant was arraigned on April 25, 2016, and two days after
that (one week after the alleged incident), he turned
5, 2016, a grand jury indicted the defendant as a youthful
offender on five charges: armed home invasion, armed robbery,
assault with a dangerous weapon, unlawful possession of a
firearm, and intimidation of a witness. The indictments were
filed with the Juvenile Court on July 11, 2016, and the case
was continued to July 26, 2016, for arraignment. However, a
Juvenile Court judge refused to arraign the defendant on the
youthful offender indictments on the grounds that -- because
the defendant had turned eighteen prior to the issuance of
the indictments -- the court lacked jurisdiction over them.
The judge also denied alternative relief that the
Commonwealth requested, the holding of a transfer hearing
pursuant to G. L. c. 119, § 72A, in order that the
defendant might be tried as an adult. The Commonwealth filed
a motion to reconsider; the judge denied that motion and
allowed the defendant's oral motion to dismiss the
indictments, issuing a memorandum and order explaining his
the defendant remained committed to the DYS facility until
his release on bail in October. The delinquency complaints
remain pending, but those proceedings have been
The scope of the appeal.
begin by noting that the Commonwealth acknowledges on appeal
that the alternative relief it requested in the Juvenile
Court, the holding of a G. L. c. 119, § 72A, transfer
hearing, has no application to this case. By its express
terms, § 72A now applies to juveniles who are
apprehended after they turn nineteen. G. L. c. 119, §
72A, as amended by St. 2013, c. 84, § 23. See
Mogelinski I, supra at 632 n.4 (noting that
as a result of the 2013 amendments, "the Commonwealth
may seek a transfer hearing if an individual is apprehended
after the age of nineteen, for conduct allegedly committed
prior to his or her eighteenth birthday"). See also
Commonwealth v. Mogelinski, 473 Mass. 164, 167-170
(2015) (Mogelinski II). Although the parties
disagree on exactly when the juvenile here should be deemed
to have been apprehended, they agree that, in any event, he
was apprehended before he turned nineteen. Because the §
72A transfer hearing process has no application to this case,
the appeal before us is limited to whether the Juvenile Court
had jurisdiction over the youthful offender indictments.
import of Mogelinski I.
finding no jurisdiction, the judge relied on Mogelinski
I. Overall, the setting of that case is indeed quite
similar to the one before us. Like the present case,
Mogelinski I involved someone who --when he turned
eighteen -- was already subject to a pending delinquency
complaint but had not yet been indicted as a youthful
offender.Id. at 629-630. The court held
that youthful offender indictments cannot be issued against
an individual once he or she turns eighteen, regardless of
whether a delinquency complaint was pending at that
time.Id. at 637. Thus, M ...