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Commonwealth v. Leopold L.

Appeals Court of Massachusetts, Suffolk

January 8, 2020

LEOPOLD L., a juvenile.

          Heard: October 2, 2019

          Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on August 10, 2015. A proceeding for revocation of probation was heard by Joseph F. Johnston, J.

          Caroline I. Alpert for the juvenile.

         Julien M. Mundele, Assistant District Attorney, for the Commonwealth.

          Present: Wolohojian, Blake, & Englander, JJ.

          WOLOHOJIAN, J.

         This appeal from a probation revocation in the Juvenile Court raises a number of issues of first impression, including whether the juvenile, who turned eighteen after committing the crime that violated his probation but before the probation violation hearing, could be committed to the custody of the Department of Youth Services (DYS) until age nineteen. For the reasons set out below, we conclude as a general proposition that the Juvenile Court has both the jurisdiction and the authority to impose a probation revocation disposition to age nineteen. But because the juvenile's underlying suspended delinquency sentence committed him to DYS custody only to age eighteen, the judge, after deciding to revoke the juvenile's probation, could impose only the original suspended sentence; he could not extend it. For that reason, we vacate the juvenile's commitment to DYS custody to age nineteen and order that the original sentence be imposed nunc pro tunc. In addition, because we reject the juvenile's arguments that the finding of violation rested on unreliable hearsay evidence, and that continuances allowed in excess of the time limits for probation violation hearings in the Juvenile Court constitute reversible error, we affirm the finding of probation violation and the revocation of probation. See Commonwealth v. Padua, 479 Mass. 1004, 1005 (2018) (conviction need not be vacated simply because sentence was incorrect).


         In August 2015, a complaint was brought charging the juvenile with delinquency by reason of unarmed robbery, G. L. c. 265, § 19 (b), and assault and battery, G. L. c. 265, § 13A (a) (the 2015 charges). On November 9, 2016, the then-sixteen year old juvenile admitted to sufficient facts and pleaded delinquent to the charges. He was committed to DYS custody "suspended until age eighteen," and placed on probation with conditions to February 8, 2018 (his eighteenth birthday).

         On January 22, 2018, not long before he was to turn eighteen, a new delinquency complaint charged the juvenile with having committed armed assault with intent to murder, G. L. c. 265, § 18 (b), assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b), and malicious damage to a motor vehicle, G. L. c. 266, § 28 (a) (the 2018 charges) . He was arraigned in Juvenile Court that same day, and ordered held on $20, 000 cash bail. A pretrial conference was scheduled for February 8, 2018.

         Also on January 22, 2018, the juvenile was served with a notice of probation violation alleging that the new criminal conduct violated the terms of his 2016 probation.[1] The juvenile did not contest a preliminary finding of violation, and the judge found probable cause and ordered that the juvenile be held without bail. See Juvenile Court Standing Order 1-17 § V(c) (2017). The probation violation hearing was set for February 8, 2018.

         Thus, as of January 22, 2018, the seventeen year old juvenile was held on $20, 000 cash bail on the 2018 delinquency complaint, he was held on no bail on the probation violation notice, and the parties were to appear on February 8, 2018, both for the probation violation hearing and for a pretrial conference on the 2018 delinquency complaint. February 8, 2018 was the juvenile's eighteenth birthday.

         On the morning of the February 8, 2018 hearing, the juvenile filed a motion arguing that the Juvenile Court's jurisdiction over the probation violation would end by the end of the day, as would its ability to impose any sentence. The Commonwealth sought a continuance in order to address these issues, and because it had not summonsed the necessary witnesses for the probation hearing. The Commonwealth also informed the judge that it was still reviewing whether to indict the juvenile as a youthful offender. Over the juvenile's objection, the judge allowed a continuance to March 8, 2018, set a briefing schedule with respect to the juvenile's motion, and informed the Commonwealth that it should be prepared to go forward with its evidence on the probation violation on March 8. The judge also extended the juvenile's probation to March 8, without prejudice to the juvenile's jurisdictional argument.

         On February 12, 2018, the juvenile filed an emergency petition for relief with the Supreme Judicial Court under G. L. c. 211, § 3, challenging both the continuance and the Juvenile Court's jurisdiction to extend probation beyond the juvenile's eighteenth birthday. A single justice of the Supreme Judicial Court denied the petition in part because the juvenile continued to be held on bail on the new charges, which he had not challenged.[2]

         The parties next appeared in Juvenile Court on March 8, 2018, as scheduled. As to the 2018 delinquency complaint, the Commonwealth informed the judge that it had begun to present evidence to a grand jury and intended to seek an indictment. As to the probation violation, the juvenile again pressed his argument that the court lacked jurisdiction and authority given the juvenile's age. The Commonwealth sought a continuance because its sole witness (the investigating officer) on the probation violation was unavailable given unexpected childcare issues caused by snow and school cancellations. The judge noted on the record that there had been a significant snowfall the previous evening resulting in school cancellations and even a delayed opening of the court. Over the juvenile's objection, the judge continued the probation violation hearing for one week to March 15, 2018. The judge also denied the juvenile's request that the judge terminate his detention.

         The evidentiary portion of the probation violation hearing was conducted on March 15, 2018, with argument conducted the following week on March 22, 2018, after the judge had had an opportunity to review the video recording (video) exhibits.[3] The evidence (which came in through the investigating officer) showed the following. On January 14, 2018, the victim and his friend, driving two separate cars, returned home after having gone out to get something to eat. As the victim was backing into a parking spot, three to four young men appeared. Two wielded baseball bats and smashed the windows of the victim's car. Another then reached in and stabbed the victim. The victim's friend managed to disperse the group by driving his car toward them, and the victim then drove himself to a local medical clinic for treatment. Finding it closed, the victim called 911. He recounted the incident to the responding officer and was then transported by ambulance to a hospital, where the officer conducted a short interview in which the victim described his assailants only as younger Hispanic males.

         The victim's friend was interviewed by police at the station shortly after the attack. The friend's account was consistent with what we have set out above and added the following. He was "pretty sure" that one of the attackers was the juvenile. The day before the incident, the friend and the victim had seen the juvenile about fifty yards from where the assault occurred. Upon seeing the juvenile, the victim said, "[0]h, there goes [the juvenile] and me and him have a beef, as in like a feud, fight situation." The juvenile was wearing a grey jumpsuit.

         Five days after the incident, after having been released from the hospital, the victim appeared at the police station with his father in order to be interviewed. The victim repeated what he had previously said about the incident but added the following. The victim identified the juvenile as the person who broke the car windows and hit his hand with a bat. He had heard from a friend that the juvenile had used a metal bat in a previous (unrelated) assault. The victim stated that the juvenile's nickname was "Puerto Rico," and told the officer where the juvenile lived, stating that he had known the juvenile for about two years and that they had previously been friends. The victim confirmed that he had seen the juvenile the day before the attack and that the juvenile was wearing the same hoodie.

         The victim added that he recognized the stabber, described him as having "long hair," and identified him as Adam, [4] whom he (the victim) had known for about two years and saw approximately monthly. He provided Adam's address. The victim also said that he had been involved in a physical altercation with Adam a few months earlier.

         A surveillance video obtained from a nearby building confirmed the details of the attack in all particulars, but did not show any of the attackers' faces.

         The victim identified both the juvenile and Adam from double-blind photographic arrays. When the police went to arrest the juvenile at his home, his family attempted to divert police while the juvenile escaped. The juvenile was apprehended as he fled out the back exit.

         After hearing the evidence, the judge continued the hearing to March 22, 2018, so that he could review the videos. When the parties returned on that date, the juvenile again argued that the court did not have jurisdiction over him given his age, that both due process and double jeopardy would be violated should any disposition be imposed beyond that imposed in the original sentence on the 2015 charges, that the hearsay evidence was not reliable, and that the evidence did not establish by a preponderance of the evidence that the juvenile participated in the attack. The judge disagreed, found the juvenile in violation of his probation, revoked the suspended sentence, and committed him to DYS custody to age nineteen (i.e., to February 8, 2019) . This appeal followed.[5]


         The juvenile raises three primary arguments on appeal, all of which are preserved. First, he argues that he was deprived of due process because the probation violation rested solely on unreliable hearsay. Second, he contends that the judge committed reversible error by continuing the probation violation hearing, over the juvenile's objection, without good cause and beyond the period allowed by Juvenile Court Standing Order 1-17, and G. L. c. 119, § 56. Third, the juvenile argues that the judge imposed an illegal sentence when he committed him to DYS custody until his nineteenth birthday.

         As an initial matter, on our own initiative, we have first considered whether this appeal is moot given that the juvenile's commitment to DYS custody has ended and there is no effective relief we can provide with respect to that sentence even though we conclude that it was illegal. An appeal from a probation revocation does not become moot simply because the person has finished serving his or her sentence. This is because the revocation "may have collateral consequences" in the future apart from the sentence itself. Commonwealth v. Kendrick, 446 Mass. 72, 73 n.l (2006). See G. L. c. 119, § 60 (juvenile probation violation adjudication is admissible "in subsequent delinquency or criminal proceedings against the same person"). In addition, although it is true that we can offer no effective relief with respect to the sentence the juvenile has already served, the same is not true with respect to the probation violation finding itself, which we could reverse were we to agree (which we do not) with the juvenile's view that it rests on insufficient evidence and unreliable hearsay.[6] See Padua, 479 Mass. at 1005 (defendant has continuing interest in obtaining relief from conviction itself even if he has completed serving sentence). See also Commonwealth v. Pena, 462 Mass. 183, 189 (2012), and cases cited ("probation revocation may have collateral consequences beyond term of incarceration"). For all of these reasons, we conclude this appeal is not moot and we now turn to the arguments raised by the parties.

         1. Hearsay.

         The juvenile argues that the victim's identification of him (which was introduced through the testifying officer) was unreliable hearsay and therefore could not, consistent with due process, be the sole basis upon which to conclude that the juvenile was one of the assailants. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Commonwealth v. Milton, 427 Mass. 18, 22 (1998). He points in particular to the fact that the victim did not identify his assailants immediately after the crime and that the victim's identification of the juvenile in the photographic array rested on his previous dealings with the juvenile rather than on seeing the juvenile during the attack.

         In assessing the juvenile's argument, we begin by noting that this is not a case where probation revocation rested entirely on hearsay; indeed, the principal investigating officer testified at the hearing. Contrast Commonwealth v. Durling, 407 Mass. 108, 110 (1990) (sole evidence of probation violation was two police reports about which probation officer had no personal knowledge). The officer responded to the scene, observed and questioned the victim who had shortly before been stabbed, investigated the scene of the attack, saw the damaged car, went to the hospital where the victim was treated, interviewed both the victim and his friend, wrote a police report, and obtained a surveillance video showing the attack. The officer was subject to confrontation[7] on all of these matters. Moreover, the surveillance video, which would be admissible in evidence, confirmed the attack and many of its details.

         This is also not a case where the accuracy of the witness reporting the hearsay evidence is questioned. See Commonwealth v. Negron, 441 Mass. 685, 692 n.8 (2004) (admission of hearsay impliedly includes "an additional implicit determination that the witness who is reporting the hearsay ... is doing so accurately"). The juvenile does not question that the officer accurately recounted the victim's statements identifying the juvenile; indeed, any such argument would be foreclosed by the video recording of the interview, which confirms the officer's testimony.

         Thus, the narrow question before us is only whether the victim's identification of the juvenile bore sufficient indicia of reliability for the judge to conclude by a preponderance of the evidence that the juvenile participated in the attack. "The [juvenile] court may rely on hearsay as evidence of a probation violation only if the court finds in writing that the hearsay is substantially reliable." Juvenile Court Standing Order 1-17 § VII (b).

         In written findings required by Juvenile Court Standing Order 1-17 § VIII(c), the judge determined that the out-of-court statements of identification were reliable because the victim knew the perpetrators based on previous interactions with them, knew where the perpetrators lived, was able to identify the attackers in separate photographic arrays, the information was internally consistent, and the victim relied on personal knowledge in making the identifications. See Juvenile Court Standing Order 1-17 § VII(b) (reproduced in the margin).[8] The judge's reasoning was well-grounded in the evidence and we agree that it provided an ample basis upon which to conclude the hearsay was reliable. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). In addition to the factors highlighted by the judge, we note that the victim's identification of the juvenile was corroborated by the first-hand observations of his friend (who provided the same identification immediately after the crime, with no suggestion of coordination with the victim), was consistent with the victim's hostile relationship with the juvenile, and was bolstered by the juvenile's demonstrated consciousness of guilt when he attempted to evade the police. In addition, when assessing the reliability of the victim's statements, we take into account that "it is a crime for a citizen to make a false report of a crime to police officers, see G. L. c. 269, ...

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