Heard: December 7, 2017.
Court, Delinquent child. Practice, Criminal, Juvenile
delinquency proceeding, Transfer hearing, Lesser included
offense, Delay in commencement of prosecution. Due Process of
Law, Notice. Notice. Rape.
action commenced in the Supreme Judicial Court for the county
of Suffolk on July 3, 2017.
case was reported by Lenk, J.
A. Dougherty, III, for the juvenile. Stacey L. Gauthier,
Assistant District Attorney, for the Commonwealth.
M. Templin, for Youth Advocacy Division of the Committee for
Public Counsel Service, amicus curiae, submitted a brief.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker,
single justice of the county court reserved and reported this
case involving the transfer of certain charges from the
Juvenile Court to adult court pursuant to G. L. c. 119,
§ 72A. In September, 2014, juvenile delinquency
complaints were issued against the defendant for the crime of
rape of a child with force (three counts) arising out of
incidents that occurred seven years earlier when the
defendant was sixteen years old and the complainant was
thirteen years old. Because the defendant was not
"apprehended" according to the statute until after
his nineteenth birthday, he could not be tried in the
Juvenile Court. The judge was faced with discharging the
defendant or transferring the charges to adult court. After a
hearing she dismissed the offenses charged for lack of
probable cause but transferred the lesser included offenses,
statutory rape. The defendant filed a petition for relief in
the county court pursuant to G. L. c. 211, § 3.
reservation and report, the single justice posed two
questions to the full court:
"1. Whether G. L. c. 119, § 72A, permits a Juvenile
Court judge, who has dismissed an offense charged for lack of
probable cause, to order a defendant to be tried in an adult
court for lesser included offenses, where the lesser included
offenses are supported by probable cause.
"2. Whether, if the statute so permits, its application
against this defendant would be unconstitutional for failure
to have provided him with proper notice of the charges
pending against him or the possibility of such a
conclude that G. L. c. 119, § 72A, permits a Juvenile
Court judge to transfer lesser included offenses where
supported by probable cause even where lesser included
offenses are not expressly charged. In instances where a
judge finds no probable cause of the crime charged but does
find probable cause of a lesser included offense, however,
the judge must give a defendant a meaningful opportunity to
present evidence and argument as to why discharge, rather
than transfer, of the lesser included offense is consistent
with protection of the public. We also emphasize that where
the charged offense is rape of a child with force and the
lesser included offense is statutory rape involving
consensual sexual relations between teenagers, the issues
presented regarding transfer or discharge and the protection
of the public are quite different.
where the judge did not inform the defendant of her probable
cause rulings on the offenses charged or the lesser included
offenses until her decision on the transfer itself, we
conclude that the defendant was not given a meaningful
opportunity to present evidence and argument why discharge
and not transfer of the statutory rape charges was consistent
with protection of the public. The defendant is therefore
entitled to reopen the transfer hearing in order to present
such evidence and argument. Lastly, we conclude that there is
no merit to the defendant's contention in posthearing
briefing that the seven-year delay in prosecution was done in
Background and ...