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Commonwealth v. Cole C.

Appeals Court of Massachusetts, Suffolk

January 19, 2018

COMMONWEALTH
v.
COLE C, a juvenile. [1]

          Heard: November 8, 2017.

         Indictments found and returned in the Superior Court Department on July 5, 2016.

         After transfer to the Suffolk County Division of the Juvenile Court Department, a motion to dismiss was heard by Peter M. Coyne, J.

          Colby M. Tilley, Assistant District Attorney (Michael V. Glennon, Assistant District Attorney, also present) for the Commonwealth.

          Melissa Allen Celli for the defendant.

          Present: Milkey, Blake, & Singh, JJ.

          MILKEY, J.

         A grand 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.

         Background.

         The 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 eighteen.

         On July 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 rulings.

         Meanwhile, 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 stayed.[2]

         Discussion.

         1. The scope of the appeal.

         We 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.

         2. The import of Mogelinski I.

         In 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.[3]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.[4]Id. at 637. Thus, M ...


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