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SJC-12455

                 A JUVENILE   vs.   COMMONWEALTH.


                        August 13, 2018.


Supreme Judicial Court, Superintendence of inferior courts.
     Delinquent Child. Bail.


     The petitioner, a juvenile, has been charged in a
delinquency complaint with being an accessory to murder after
the fact, in violation of G. L. c. 274, § 4, and with assault
and battery by means of a dangerous weapon, in violation of
G. L. c. 265, § 15A. At the juvenile's arraignment, a Juvenile
Court judge set bail at $50,000. A Superior Court judge
subsequently denied the juvenile's petition for bail review, and
the juvenile then filed a petition with a single justice of this
court pursuant to G. L. c. 211, § 3. The single justice denied
the petition, and the juvenile appeals. We affirm.1

     Background. The juvenile has been in the permanent custody
of the Department of Children and Families (department) since
2013. In October, 2016, he was charged in a delinquency
complaint with vandalizing property, in violation of G. L.
c. 266, § 126A, and assault and battery, in violation of G. L.
c. 265, § 13A. After his arraignment on those charges, he was
released to the custody of the department. He subsequently
failed to appear for a compliance and election hearing scheduled
for January, 2017, and a default warrant issued. The juvenile
remained in default until October, 2017, when he was arrested in
connection with the events that led to the current charges.


     1 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services, Youth Advocacy Division and
Children and Family Law Division.
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     In setting the juvenile's bail at $50,000, the Juvenile
Court judge marked on the bail form that the reasons for doing
so were the nature and circumstances of the offenses charged;
the potential penalty the juvenile faces; and the juvenile's
family ties, record of flight to avoid prosecution, failure to
appear at a court proceeding, and status of being on bail
pending adjudication of a prior charge. The judge also included
handwritten notes in the section for "Findings of fact for bail
amount higher than what juvenile/defendant may afford," which
appear to state that "[t]he Juvenile may be indicted. -- Victim
murdered -- child in DCF and DYS custody -- been in warrant
status since Jan. 18, 2017 -- Co-Defendant, stabbing -- fled
with him + returned 4 murder weapon."

     The juvenile petitioned for a review of the bail
determination in the Superior Court. A judge in that court
denied the petition in a handwritten marginal note stating that
"[t]he court has considered the defendant's lack of financial
resources. However, given the fact that he is in the custody of
DCF and has been a runaway for months, there is no reasonable
alternative to assure the defendant's appearing in court other
than setting a bail he cannot post. [Brangan v. Commonwealth],
477 Mass. 691 (2017)."

     Discussion. The juvenile argues, among other things, that
a judge making a bail determination for a juvenile in the
department's custody must take into account the fact that the
department does not post bail for such juveniles, and therefore
bail in any amount will be more than the juvenile can pay and
will result in pretrial detention.2 In his view, both judges who
addressed the bail issue here -- the Juvenile Court judge in
setting bail, and the Superior Court judge in denying the
petition for bail review -- failed to do this and, as a result,
violated his due process rights. In the particular
circumstances presented here, and in particular on the record
before us, we disagree.

     In our recent decision in Brangan v. Commonwealth, 477
Mass. 691 (2017), we addressed the extent to which a judge

    2  The juvenile states that the Department of Children and
Families (department) does not post bail for juveniles in its
custody. Although the juvenile has not provided any definitive
support for this assertion, he has provided certain information
that suggests this to be true (and the Commonwealth does not
specifically disagree). At least for purposes of this appeal,
we accept this to be true.
                                                                   3



    "must consider a criminal defendant's financial resources
    in setting bail, whether such a defendant is
    constitutionally entitled to an affordable bail, and the
    due process requirements that apply if the judge settles on
    a bail amount that is more than the defendant can pay,
    resulting in pretrial detention."

Id. at 693. We concluded that although a judge must consider a
defendant's ability to pay, the judge "is not required to set
bail in an amount the defendant can afford if other relevant
considerations weigh more heavily than the defendant's ability
to provide the necessary security for his appearance at trial."
Id. In short, a judge may, in certain circumstances, set a bail
that a defendant will be unable to post.

     If the judge does so, "the judge must provide findings of
fact and a statement of reasons for the bail decision, either in
writing or orally on the record," that explain not only "how the
bail amount was calculated" but also why, "notwithstanding the
fact that the bail amount will likely result in the defendant's
detention, the defendant's risk of flight is so great that no
alternative, less restrictive financial or nonfinancial
conditions will suffice to assure his or her presence at future
court proceedings." Id. at 707.

     In this case, when the Juvenile Court judge set bail at
$50,000, the judge was, for all intents and purposes, issuing an
order of detention, because the juvenile had no financial
resources to post that amount of bail or, in fact, any amount of
bail. There is no question, following our decision in Brangan,
that where a bail determination is likely to lead to pretrial
detention, a judge making that determination must consider
alternative nonfinancial conditions and must make findings in
connection with the decision. Those findings should demonstrate
that a judge has engaged in fair and meaningful consideration of
reasonable alternatives relevant to the circumstances of the
case such that a reviewing court can be satisfied that the
requirements detailed in Brangan have been met. As we indicated
in Brangan, the findings can be written or oral so long as there
is adequate indication, on the record, that due consideration
has been given to nonfinancial alternatives.3 This holds true

    3  We reiterate here a point that we made in Brangan v.
Commonwealth, 477 Mass. 691, 707 n.19 (2017), regarding the use
of the form captioned "Reasons for Ordering Bail, G. L. c. 276,
§ 58." The Juvenile Court form -- which lists several generic
                                                                   4


regardless of whether the bail determination pertains to a
juvenile or adult defendant.

     There also is no question that when a juvenile (or a
defendant) petitions this court pursuant to G. L. c. 211, § 3,
seeking review of a bail determination (or for any other
reason), it is the petitioner's burden to create a record
substantiating his claim of error. See, e.g., Gorod v.
Tabachnick, 428 Mass. 1001, 1001, cert. denied, 525 U.S. 1003
(1998), and cases cited (petitioner's burden to create record
showing substantial claim of violation of substantive right).
In this case, such a record might have included details
regarding the bail hearing in the Juvenile Court (in the form of
a transcript, an affidavit from counsel, or some other reliable
source) that would show, as the juvenile claims, that reasonable
nonfinancial conditions were not discussed or considered by the
judges below. We do not have that. All we have in the record
before us (and all that was before the single justice) are the
bail form completed by the Juvenile Court judge and the Superior
Court judge's handwritten notation in the margin of the petition
for bail review.

     Although the details that the judges set forth as to what
informed their respective decisions are scant, those details are
enough, in the circumstances, to demonstrate that there was no
abuse of discretion in setting the juvenile's bail. As is noted
in the decisions, the juvenile was in default at the time of his
arrest on the current charges; he had essentially fled from the
department's custody and was a "runaway" at the time of his
arrest; and, importantly, the Superior Court judge noted that
there was no reasonable alternative to bail. The judges, in
other words, recognized the very issues with which the juvenile
is (and we are) concerned. We are satisfied that no due process
violation has occurred in this instance.

     The juvenile also raises two additional issues regarding
setting bail for a juvenile in the department's custody: first,


categories of reasons for the bail that a judge may check off --
may be useful in making the required findings, but "we caution
that further elaboration of the findings may be prudent where
the bail is likely to result in long-term detention," as would
generally be the case with juveniles in the custody of the
department. Id. We also take this opportunity to suggest that
the Juvenile Court consider revising the form to better reflect
the need for the consideration of alternative nonfinancial
conditions.
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that doing so violates a juvenile's equal protection rights; and
second, that doing so involves both executive and judicial
branches of government and thus violates the separation of
powers principles set forth in art. 30 of the Massachusetts
Declaration of Rights. As to the latter issue, the juvenile did
not raise it before the single justice, and we therefore need
not consider it. See Carvalho v. Commonwealth, 460 Mass. 1014,
1014 (2011), and cases cited.

     As to the former issue, regarding equal protection, we find
no merit to the juvenile's assertions. The juvenile argues that
because the department does not post bail for juveniles in its
custody (see note 2, supra), a juvenile so situated is being
treated differently from a juvenile in the custody of a parent,
who, the argument goes, may have the ability to post bail for
the juvenile. The argument misses the mark. The basis of a
juvenile's inability to post bail makes no difference. A
juvenile in the department's custody is no differently situated,
for purposes of posting bail, from a juvenile whose parents
cannot afford bail or, for that matter, an indigent adult
defendant. The juvenile is not, in short, as he suggests, being
penalized for not having a family.

     Conclusion. Where the bail determination was appropriately
made and no violation of the juvenile's rights has been shown to
have occurred, the single justice did not, on the basis of the
record before him, err or abuse his discretion in denying the
juvenile's G. L. c. 211, § 3, petition, seeking review of that
determination.

                                   Judgment affirmed.


     Melissa Allen Celli (Julianne Feliz-Kidd also present) for
the juvenile.
     Stephen C. Nadeau, Assistant District Attorney, for the
Commonwealth.
     Afton M. Templin, for Youth Advocacy Foundation of the
Committee for Public Counsel Services & others, amici curiae,
submitted a brief.
