2012 VT 23


In re D.K.,
Juvenile (2011-076)
 
2012 VT 23
 
[Filed 23-Mar-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 

2012 VT 23

 

No. 2011-076

 

In re D.K., Juvenile


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Bennington
  Unit, 


 


Family division


 


 


 


September Term, 2011


 


 


 


 


Karen
  R. Carroll, J.


 

Christina Rainville, Bennington County Chief Deputy State’s
Attorney, Bennington, 
  for Plaintiff-Appellant.
 
David F. Silver and Timothy M. Andrews (On the Brief) of
Barr, Sternberg, Moss, Lawrence & 
  Silver, P.C., Bennington, for
Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess,
JJ.
 
 
¶ 1.            
JOHNSON, J.   The issue in this case is whether the
State may prosecute an adult defendant  for
crimes alleged to have occurred when he was a juvenile between the ages of ten
and fourteen years.  The prosecution is late, not through any fault of the
State, because the alleged victims did not come forward until defendant was
eighteen years of age and beyond the jurisdiction of the family division. 
The State, recognizing this jurisdictional difficulty, tried to file the information
in the criminal division.  The criminal division transferred the case to
the family division because it found there was no criminal jurisdiction to
adjudicate even the most serious of the offenses without first filing the
matter in the family division.  The family division, however, determined
it was without jurisdiction to entertain the charges because defendant had
reached eighteen years of age.   Accordingly, it dismissed all of the
charges against defendant.
¶ 2.            
  On appeal, the State argues that the family division erred
by dismissing the more serious felony charges because: (1) a recent legislative
enactment addressing what it calls a “gap” in the jurisdictional provisions of
the statutes is a mere clarification  demonstrating that the Legislature
had always intended that adult defendants be subject to prosecution for serious
crimes committed when they were juveniles; and (2) even if the new amendment
does not clarify the statutes and fill the gap, there is jurisdiction in the
criminal division because that division has always had jurisdiction
over all serious felonies.    We conclude that: (1) the
Legislature’s recent enactment did not clarify existing law but rather
established entirely new law that cannot be applied retroactively to this case;
therefore, to the extent that the Legislature has filled the “gap,” it has done
so only prospectively; and (2) the statutory scheme applicable at the time of
the offenses  plainly did not allow either the family or criminal division
to exercise its jurisdiction over an adult defendant accused of offenses
committed as a juvenile under the age of fourteen.  Accordingly, we affirm
the family division’s order dismissing all charges in this case.
¶ 3.            
In July 2010, the State filed an information alleging that when the
eighteen-year-old defendant was between the ages of eleven and thirteen he
sexually assaulted, through mouth-to-genital contact, one younger male cousin
on three occasions, and that when he was between the ages of twelve and
fourteen he subjected another younger male cousin to lewd and lascivious acts
on four occasions.  Before arraignment or a probable cause determination,
the criminal division ordered the parties to submit memoranda on the question
of whether it had initial jurisdiction to consider the charges.  In an
October 2010 decision, the criminal division removed the four
lewd-and-lascivious counts to the family division and ordered that the three
sexual-assault counts be re-docketed in the family division as a delinquency
petition.
¶ 4.            
Shortly thereafter, defendant filed a motion in the family division to
dismiss all of the charges.  The State acknowledged that the family
division’s jurisdiction was limited to juveniles under the age of eighteen, but
nevertheless argued that the court should accept jurisdiction over the lewd and
lascivious conduct charges and transfer the sexual assault charges to the
criminal division.  In February 2011, the family division issued a
decision concluding that: (1) it lacked jurisdiction over the lewd and
lascivious conduct charges because defendant had reached his eighteenth
birthday; and (2) for the same reason, it lacked jurisdiction to transfer the
sexual assault charges to the criminal division, given the statutory requirement
that such charges against juveniles be filed in the first instance in the
family division.
¶ 5.            
The State appeals the dismissal of only the sexual assault counts,
arguing first that the Legislature’s recent clarification of the statutes solves
the jurisdictional issue and demonstrates that the Legislature had always
intended defendants to be subject to criminal prosecution for crimes committed
while they were children, even if those offenses were not reported or
discovered until after the juvenile reached adulthood.  We conclude that
this argument is unavailing.
¶ 6.            
During the 2011 legislative session, after the family division filed its
decision in this case, the Legislature enacted a statute, codified as 33 V.S.A.
§ 5204a, creating jurisdiction and detailed procedures for the family division
in the first instance (and potentially the criminal division upon transfer from
the family division) to adjudicate charges against adult defendants for
offenses allegedly committed when they were juveniles.  2011,
No. 16, § 2.  The newly created statute provides that a proceeding
may commence in the family division against an adult defendant if the petition
alleges that the defendant committed one of certain specified serious crimes,
no juvenile petition had ever been filed based on the alleged conduct, and the
statute of limitations had not yet tolled on the alleged offense.  33 V.S.A. § 5204a.  If certain criteria are met, and
upon consideration of detailed factors set forth in the statute, the family
division may do one of three things: (1) transfer the case to the criminal
division in the interest of justice and public safety; (2) order the defendant,
if under twenty-three years of age, to be treated as a youthful offender; or
(3) dismiss the petition.  Id. 5204a(b)-(c). 
Among the statute’s numerous criteria and factors for the court’s consideration
are those that take into account the differences in culpability and treatment
for offenses committed by juveniles as opposed to adults.[1]
¶ 7.            
Before the enactment of § 5204a, the statutory scheme did not provide
jurisdiction or procedures for adjudicating charges against adult defendants
based on offenses committed when they were under the age of fourteen. 
Nevertheless, the first section of the act creating § 5204a states, in
part, as follows: “This act clarifies, as the general assembly had always
intended, that under the proper circumstances and for serious offenses, the
state may bring charges against a person 18 years of age or older who committed
a crime before turning 18.”  2011, No. 16, § 1. 
The State relies upon this statement as evidence that the old statutory scheme,
which the State concedes applies to defendant, allows the family division to
infer that it may overlook its most basic and explicit statutory limitation to
exercise jurisdiction over this eighteen-year-old defendant and transfer this
case to the criminal division.  The State’s position does not withstand
scrutiny.  
¶ 8.            
Although “the general presumption is that legislation is intended to
apply only prospectively,” the presumption may be rebutted when the Legislature
enacts a clarification of a misapplied or misinterpreted statute, thereby
revealing its true meaning.  State v. Kenvin, 2011 VT 123, ¶ 24,
___ Vt. ___, ___ A.3d ___.  It is true that the Legislature in this
instance took pains to describe its actions as a clarification of its prior
intent, and while the Legislature’s statement of its intent is always of
interest to this Court, our review must be based on the substantive analysis of
the statutory amendment.  If the amendment has created new law, the law
may not be applied retroactively, and the old law may not be validly
interpreted as implying what the new law requires.  In these
circumstances, any statement of legislative intent that is contrary to what the
Legislature has actually done is not controlling and must be disregarded. 
¶ 9.            
  Here, the Legislature’s attempt to clarify the law in 2011
after defendant was charged created an entirely new jurisdictional statute
providing procedures for adjudicating delinquency petitions involving adult
defendants where none existed before.  The new statute is plainly
inconsistent with the prior law and cannot be considered merely a clarification
of what a previous Legislature had intended the statute to mean.
¶ 10.         The
State argues, however, that even if the Legislature’s 2011 amendment cannot be
considered a clarification of the law as it existed at the time the instant
charges were brought, the law at that time still plainly provided jurisdiction
in the criminal division to adjudicate those charges.  According to the State,
although the adult defendant may have been beyond the family division’s
jurisdiction, the criminal division has general jurisdiction “to try, render
judgment, and pass sentence in prosecutions for felonies,” 4 V.S.A. § 32,
without regard to the age of the defendant.  Moreover, the State notes
that prosecutions for sexual assault of child victims are permitted until “the
earlier of the date the victim attains the age of 24 or 10 years from the date
the offense is reported,” 13 V.S.A. § 4501(c), neither of which was reached in
this case before defendant was charged.  Thus, in the State’s view, the
criminal division had continuing jurisdiction to adjudicate the charges it
brought against defendant.  This position, the State maintains, is further
supported by the Legislature’s important public policy goals of protecting
minors from sexual abuse and rehabilitating sex offenders.
¶ 11.         None
of these arguments is consistent with the statutory scheme in place at the time
the charges were brought in this case, which provided the family division with
exclusive original jurisdiction to adjudicate charges alleging delinquent acts
committed by defendants under the age of fourteen.  As a general matter,
“[n]otwithstanding any other provision of law to the contrary,
the family division shall have exclusive jurisdiction to hear and
dispose of . . . [a]ll juvenile proceedings filed pursuant to chapters 51, 52,
and 53 of Title 33 . . . whether the matter originated in the criminal or
family division of the superior court.”  4 V.S.A. § 33(8) (emphasis
added).  More specifically, the family division “shall have exclusive
jurisdiction over all proceedings concerning a child who is or who is
alleged to be a delinquent child . . . under the authority of the juvenile judicial
proceedings chapters, except as otherwise provided in such chapters.”  33
V.S.A. § 5103(a) (emphasis added).  Moreover, “[t]he provisions of the
juvenile judicial proceedings chapters shall be construed as superseding the
provisions of the criminal law of this state to the extent the same are
inconsistent with this chapter.”  33 V.S.A.
§ 5103(b).
¶ 12.         The
family division’s jurisdiction over delinquency petitions does not last
indefinitely, however.  Apart from youthful offender provisions not
applicable here, “jurisdiction over a child shall not be extended beyond the
child’s eighteenth birthday.”  Id. § 5103(c). 
In short, the family division’s jurisdiction over juvenile delinquency
proceedings is exclusive and takes precedence over any inconsistent criminal
law provisions, but normally ends when the juvenile reaches eighteen years of
age.
¶ 13.         The
juvenile proceedings act generally defines “[c]hild” to include “[a]n
individual who has been alleged to have committed or has committed an act of
delinquency after becoming 10 years of age and prior to becoming 18 years of
age.”  33 V.S.A. § 5102(2)(C).  Hence,
whether an individual is deemed to be a child subject to the jurisdiction of
the family division depends on the offender’s age at the time the delinquent
act was committed, not at the time that the offender was charged with the
delinquent act.  Relative to the instant circumstances, the definition of
“child” adds the caveat that an individual alleged to have committed any of
certain specified acts between the ages of ten and fourteen “may be treated as
an adult,” but only “as provided herein.”  Id. § 5102(2)(C)(i) (emphasis added).
¶ 14.         The
juvenile transfer statutes determine when a juvenile may be treated as an adult
in criminal court.  Delinquency proceedings may be commenced, depending on
the circumstances, by the filing of a delinquency petition in the family
division or by transfer from another court, including the criminal division. 
33 V.S.A. § 5201(a).  Proceedings concerning a
child alleged to have committed certain serious offenses specified in 33 V.S.A.
§ 5204(a) between the ages of fourteen and eighteen “shall originate” in
the criminal or civil division, provided that “jurisdiction may be transferred
[to the family division] in accordance with this chapter.”  33 V.S.A. § 5201(c).  The statute pertaining to
transfers to the family division from other courts provides that: (1) cases
involving individuals who committed offenses not set forth in § 5204(a),
including lewd and lascivious conduct, when they were under the age of sixteen
“shall” be transferred to the family division; and (2) cases involving
individuals who committed any offense between the ages of sixteen and eighteen
or one of the offenses specified in § 5204(a), including sexual assault, between
the ages of fourteen and sixteen “may” be transferred to the family
division.  33 V.S.A. § 5203(a)-(b).  The
prosecutor may commence a case in either the family division or the criminal division
when charging juveniles between sixteen and eighteen with offenses not listed
under § 5204(a).  See id. § 5203(c).
¶ 15.         These
transfer statutes, while explicitly providing in detail when charges against
juvenile offenders may or must be filed in the criminal division—depending on
the offense charged and the age of the offender—notably do not provide for
filing charges in the criminal division in cases where the defendant was
between the ages of ten and fourteen at the time the delinquent acts were
committed, even if the act is an offense listed under § 5204(a). 
In marked contrast, § 5204(a) provides that the family division “may”
transfer to the criminal division delinquency petitions involving individuals
alleged to have committed the serious offenses specified therein, including
sexual assault, between the ages of ten and fourteen.  Upon a motion in
the family division to transfer such a case to the criminal division, § 5204(d)
sets forth seven factors for the court’s consideration following a hearing.[2]  Those factors are grounded in the
recognition that the acts were committed by a child under the age of fourteen.
¶ 16.         Read
together, these statutory provisions plainly and unambiguously demonstrate that
the family division had exclusive original jurisdiction over all of the charges
in this case—not only, as the State recognizes, the lewd and lascivious conduct
counts for acts allegedly committed in part after defendant reached the age of
fourteen, but also the sexual assault counts for acts allegedly committed when
defendant was between the ages of eleven and thirteen.  Moreover, the
family division’s exclusive original jurisdiction terminated upon defendant
having reached eighteen years of age.  In effect, the time period that the
Legislature allowed for prosecution of the charged offenses that defendant
allegedly committed as a child has expired.  Indeed, the State
acknowledges that the family division properly dismissed the State’s delinquency
petition for lack of subject matter jurisdiction.
¶ 17.         We
find no support for the State’s position that, even assuming the family
division properly dismissed the delinquency petition under the applicable law,
the criminal division retains jurisdiction in this case by virtue of its
general jurisdiction over criminal offenses such as sexual assault.  This
position is contrary not only to the plain meaning of the applicable statutory
scheme, but also the relevant case law.  See Commonwealth
v. A Juvenile, 554 N.E.2d 1212, 1213 (Mass. 1990) (superseded
by statute) (holding that similar statutory scheme did not allow criminal court
to exercise jurisdiction over charges against juvenile who committed delinquent
acts when he was twelve or thirteen years old but was not apprehended and
prosecuted until he was nineteen years old); State v. Dellinger, 468
S.E.2d 218, 220-21 (N.C. 1996) (interpreting similar statutory scheme under
similar circumstances and concluding that both plain meaning of statutes and
legislative policy underlying those statutes gave juvenile court exclusive
original jurisdiction pending transfer to criminal court).  As the North
Carolina Supreme Court stated in Dellinger, the criminal court “cannot
obtain jurisdiction by the mere passage of time nor can the mere passage of
time transform a juvenile offense into an adult felony.”  Dellinger,
468 S.E.2d at 220.
¶ 18.         The
State argues, however, that the Legislature must have contemplated jurisdiction
in the criminal division under these circumstances because, in its view, the
alternative of allowing the charged delinquent acts to go unprosecuted thwarts
the legislative policies of protecting children and rehabilitating sex
offenders.  We disagree.  The State’s position is directly contrary
to the explicit language of the statutory scheme in place at the time the
charges were brought, and that language is not susceptible to a claim that it
is irrational or inconsistent with the underlying statutory intent.
 Indeed, the State’s position is undercut by the Legislature’s enactment
of the new amendment, which requires that delinquency petitions against adult
defendants be commenced in the family division, thereby allowing the juvenile
court to assess the underlying charges in a transfer hearing after applying
essentially the same criteria contained in § 5204(d).  33 V.S.A.
§ 5204a(b).[3] 
Even under the new amendment, prosecution in criminal court for juvenile
offenders is still a matter of discretion for the family division to exercise
in the first instance.  The fact that defendant could have been
transferred by the family division to the criminal division under the statutes
in effect at the time of the alleged offenses does not solve the jurisdictional
problem.  This Court cannot exercise on appeal the family division’s
discretion to transfer a juvenile to adult court, or presume that transfer
would have been ordered in this case.
¶ 19.         Although
defendant was eighteen years old when the State brought charges against him,
this case concerns delinquent acts, the most serious of which occurred when
defendant was between eleven and thirteen years of age.  Juvenile
proceedings are aimed primarily at protecting and rehabilitating youth in
trouble.  See 33 V.S.A. § 5101(a) (setting forth purposes underlying
juvenile proceedings provisions).  The legislative policy expressly seeks
to rehabilitate juvenile offenders while removing “the taint of criminality and
the consequences of criminal behavior.”  33 V.S.A. § 5101(a)(2).  That policy necessarily takes into account that
a child who commits an offense between the ages of ten and fourteen is still a
child and that his culpability must be viewed in light of his age.  Thus,
the policy is not furthered by automatically subjecting to criminal prosecution
adult defendants who committed delinquent acts when they were children under
the age of fourteen.  See State v. Gifford, 808 A.2d 1, 3 (N.H.
2002) (stating that to permit criminal prosecution of twenty-two-year-old defendant
charged with delinquent acts committed when he was thirteen years old “would
render meaningless the protections of [the criteria set forth in] the criminal
responsibility statute” for juvenile offenders); Dellinger, 468 S.E.2d
at 221 (stating that safeguards in juvenile proceedings “evince conceptual
distinctions between the purpose of juvenile proceedings and that of adult
criminal proceedings”).
¶ 20.         Nor
can it be considered absurd or irrational, in light of the relevant policy
considerations, for the Legislature to have established a statutory scheme
precluding the criminal prosecution of adult defendants accused of having
committed delinquent acts when they were between the ages of ten and
fourteen—even if that meant that they could not be prosecuted in the family
division because of age-related jurisdictional limitations.  While this
Court construes statutes under the assumption that the Legislature did not
intend to create genuinely absurd results, see Braun v. Bd. of Dental
Exam’rs, 167 Vt. 110, 117, 702 A.2d 124, 128 (1997), we must be vigilant
not to employ this rule of construction simply because we consider one result
preferable to another.  This is particularly true here, where the State’s
position, in effect, asks us to create criminal jurisdiction where it did not
exist under the plain language of the applicable statutory scheme.
¶ 21.         Notwithstanding
the statement of legislative purpose in the 2011 amendment’s preamble, it is
impossible at this juncture to know what a prior Legislature intended by not
providing jurisdiction in either the family or criminal division for the State
to prosecute adults who committed delinquent acts as children under the age of
fourteen.  It could have been an oversight or it could have been an intentional
policy decision.  See A Juvenile, 554 N.E.2d at 1213 (recognizing
that legislation not providing for prosecution of adult defendant charged with
delinquent acts committed before fourteen years of age could be unintended
“gap” in statute, but concluding that “[t]he Legislature is the proper forum in
which to raise this concern”).  But given the specificity of the original
statutory scheme as to when the criminal or family division may exercise its
jurisdiction to adjudicate charges against juveniles—depending on the offense
charged and the age of the defendant at the time the offense was committed—it
is just as likely that the Legislature intended not to allow criminal
prosecution of adult defendants who committed delinquent acts between the ages of
ten and fourteen, even if it meant that they would be beyond the family
division’s jurisdiction.  See Coleman, 459 N.Y.S.2d at 715
(dismissing delinquency petition concerning adult defendant who committed
charged acts as juvenile, and noting that gap in statute not providing for
prosecution of adult defendants who committed delinquent acts when under age of
sixteen was either “an oversight” or “more likely a brief eleven year change in
legislative policy toward prosecution of persons under sixteen charged with
certain acts”).
¶ 22.         In
any event, we will not create jurisdiction where it did not exist to cover this
perceived “gap,” which has since been addressed by the Legislature.  Given
the applicable law and the circumstances of this case, neither the family nor
criminal division had jurisdiction to adjudicate the State’s charges alleging
that the adult defendant committed three counts of sexual assault when he was a
child between the ages of eleven and thirteen.  Accordingly, the family
division acted properly in dismissing these charges, along with the lewd and
lascivious conduct charges.
¶ 23.         The
dissent identifies the issue before us as “what should be done with adults who
are alleged to have committed felonies when still juveniles,” post, ¶
31, and indicates it “would much prefer” that the criminal division adjudicate
this matter “rather than letting a calendar decide the outcome,” post ¶
42.  Apparently, the dissent’s preference is based on two past cases in
which juveniles between the ages of fourteen and sixteen committed egregious
crimes.  As the dissent acknowledges, however, the Legislature responded
to those instances of juvenile crime by amending Vermont’s juvenile justice
laws.   Indeed, in this case we construe those very laws, which
unequivocally demonstrate that jurisdiction does not exist in either the family
or criminal division to prosecute an adult defendant for crimes committed when
he was under the age of fourteen.  This Court’s role is to determine
legislative intent by construing the relevant law, not to provide our opinion
on what should be done with adults who are alleged to have committed felonies
when still juveniles.  That is the Legislature’s prerogative and they have
exercised it.
Affirmed.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
¶ 24.         DOOLEY,
concurring.  I concur fully in the Court’s decision.  I write
only to urge the Legislature to reconsider a decision made in the recent
judicial branch restructuring legislation.  In making this plea, I am
trying to avoid situations where the wording of legislation fails to implement
legislative intent such that important policy objectives cannot be
reached.  It is hard to read our decision in this case without concluding
that we have invented a case processing machine so complicated that we cannot
easily control its operating rules.
¶ 25.         This
case is fundamentally about what consequences should result when a young
juvenile commits a serious crime but is not charged until he or she becomes an
adult.  We must hold that the answer is “no consequences” under the
applicable statutory language, but that conclusion is reached only through
pages of statutory analysis involving two statutory schemes and two trial court
decisions reached independently by two different divisions of the superior
court.   I understand from the Legislature’s statement of purpose
accompanying the corrective legislation that it never intended this result:
However,
the general assembly never intended the juvenile procedures statutes to be used
to permit a person who commits a crime to escape the consequences of that
behavior simply by turning 18 before the state has filed charges against the
person.
 
2011, No. 16, § 1.  In my opinion, this deviation
between legislative language and legislative intent occurred because we have a
very complicated system of transferring cases between courts and, despite the
best intentions, it is possible that some cases, perversely, will not have a
home that comfortably or completely fits the circumstances of the case. 
In common jargon, these cases fall between the cracks.
¶
26.        
Prior to restructuring, juvenile delinquency cases were adjudicated in
family court, and criminal cases were adjudicated in district court.  If
the circumstances of the case indicated that it should not be adjudicated in
the court in which it was filed, the case and its paper file had to be sent
from the wrong court to the right court, the necessary consequence of having
separate first instance courts.  Stated simplistically, the overall
question was whether the circumstances warranted a juvenile rehabilitation
disposition that continued only to adulthood in a confidential proceeding or,
alternatively, warranted a criminal sentence in an open proceeding.  Over
time, the relevant circumstances became more and more complicated.
¶
27.        
Restructuring created the opportunity to eliminate some of the
complication.  Since the family court and district court were merged into
the superior court, it became possible to avoid transferring cases between
courts and to get to the heart of the matter in one proceeding. 
Unfortunately, that did not happen in cases like this one because the
jurisdictional walls between the components of the new superior court continued
and cases must, accordingly, be transferred between divisions of the superior
court by the same formal process that existed in the past.  Cases continue
to fall through the cracks just as they did before.
¶
28.        
Thus, we have a situation where in many counties we have one court, with
one judge and a unified staff, but the judge has to transfer the case to him or
herself in order to match the disposition or sentence to the conduct.  As
we move to electronic records, even the symbolic physical transfer of the case
file will disappear.  In larger counties, there may be more than one
judge, but the same unnecessary complexity persists despite the fact that each
of the judges is a generalist who could adjudicate the whole case.  In
essence we have a system that is ruled by what hat the judge is wearing, and
nothing more.  If the judge fails to change hats properly, or no hat is
available for the action sought, as here, the purposes of the statutory scheme
are frustrated.
¶
29.        
We can solve this problem by allowing a case to be filed in the criminal
or family division, but then treating the filing point as a doorway into a
proceeding that will evaluate the circumstances and determine how best to
handle it with all relevant options available.  In other words, we could
have judges wearing no hats with the ability to conduct the proceeding as if he
or she was wearing all possible hats. In viewing case processing this way, we
are less likely to create cracks that will frustrate legislative intent and
will be able to deal with cases that cross current jurisdictional boundaries as
one case. 
¶
30.        
I urge the Legislature to review the jurisdictional walls between the
components of the superior court and remove them for cases like this, in order
to allow the most expeditious route to a just result.   
                                                                                  
______________________________
                                                                                   
Associate Justice
 
 
¶ 31.         SKOGLUND,
J.  Dissenting.  This case asks what
should be done with adults who are alleged to have committed felonies when
still juveniles. The majority believes the answer is “nothing.”  While I
agree that the family division lacked jurisdiction and properly dismissed the
charges of lewd and lascivious conduct and of sexual assault, I cannot find in
the statutes any intent to allow defendants that have committed serious
felonies to avoid any consequences by the mere fact that they were under
fourteen years of age when they did so.  I would hold that a case could be
brought in the criminal division of the superior court, to which the
Legislature has granted jurisdiction “to try, render judgment, and pass
sentence in prosecutions for felonies and misdemeanors.”  4 V.S.A. § 32(a).
¶ 32.         Thirty
years ago Vermont awoke to a new realization of a child’s capacity for
depravity and violence.  Wade Willis, age sixteen, beat his pregnant
girlfriend in the head with a baseball bat and left her for dead.  Later
that day he returned, realized she was still alive, and used a shovel to finish
what he started.  Then he buried her.  State v.
Willis, 145 Vt. 459, 464, 494 A.2d 108, 110 (1985).  A week
earlier, in another county, Louis Hamlin, age sixteen, along with his
fifteen-year-old companion, grabbed two girls, ages twelve and thirteen, and
dragged them into the woods where they shot the girls with BB guns, stomped on
them, raped them both vaginally and anally, tortured and stabbed them
repeatedly, and left them tied up.  One of the girls died from a stab
wound that punctured her heart.  The other survived.  State v.
Hamlin, 146 Vt. 97, 99-100 499 A.2d 45, 47-48
(1985).  The Age of Innocence, whether the phrase is applied to the age of
the youths or the attitude of the public, was irremediably altered by these
events of these two days in May 1981.
¶ 33.         Louis
Hamlin’s fifteen-year-old companion, who had been an equal participant in the
vicious crime and at one point even claimed responsibility for the fatal
stabbing, could not be charged in the criminal courts because he was under the
age of sixteen.  In re Hamlin, 155 Vt. 98,
99-100, 582 A.2d 129, 130 (1990).) Juvenile delinquency proceedings were
instituted against him.  Hamlin, 146 Vt. at 100, 499
A.2d at 48.
¶ 34.         The
Legislature responded, calling a special session in July 1981 to significantly
change Vermont’s juvenile justice laws.  The law prior to 1981 required
any court entertaining a criminal proceeding involving a defendant under the
age of sixteen to transfer the matter to juvenile court.  33 V.S.A. § 635(a) (1980).  In other words, a judge had
no discretion to keep a matter in criminal court if the defendant was under the
age of sixteen, no matter how heinous the crime.  The Legislature then
made numerous revisions to the statutes, including granting discretion to
judges to keep fourteen- and fifteen-year-old defendants in criminal court if
they were charged with one of eleven serious felonies.  Id.
§ 635(b).  State’s attorneys were given discretion in where to file
charges for older juveniles.  Id. § 635(c). 
And the juvenile court was given discretion to transfer defendants aged ten
through thirteen to criminal court if they were charged with one of the eleven
listed serious felonies.  Id. § 635a(a).
¶ 35.         Then,
in 1988, fourteen-year-old Steven Buelow raped and murdered his seven-year-old
cousin.  He was charged in criminal court and moved to have his case
transferred to juvenile court pursuant to the statutes then in place, 33 V.S.A.
§ 635(b) and § 644(c), which read: “any proceeding concerning a child
who is alleged to have committed an act specified in section 635a(a) of this
title [the same acts listed now in § 5204(a)] after attaining the age of
14 but not the age of 18 shall originate in district or superior court.”[4]  Murder, then as now, was included
in § 635a(a)’s list of offenses. In State v.
Buelow, we wrote, “[a]ccordingly, in situations where a
fourteen-to-sixteen-year-old is charged with murder, the criminal court has
exclusive original jurisdiction over the matter.”  155
Vt. 537, 540, 587 A.2d 948, 950 (1990).      

¶ 36.         I
agree that the statutes governing delinquency proceedings answer the question
of whether the family division had jurisdiction to adjudicate this
matter.  Under 33 V.S.A. § 5103(a), the family division has
“exclusive jurisdiction over all proceedings concerning a child who is or who
is alleged to be a delinquent child.”  A “child” includes an individual
“alleged to have committed . . . an act of
delinquency after becoming 10 years of age and prior to becoming 18 years of
age.”  Id. § 5102(2)(C).  The
family division properly dismissed the lewd and lascivious and sexual assault
charges, finding that its jurisdiction was clearly limited to children and that
defendant was older than eighteen.  It also correctly noted it could not
transfer jurisdiction that it did not possess to the criminal division.  I
also agree with the majority that the newly enacted 33 V.S.A. § 5204(a)
does not govern the case before us.  The new statute is not a
clarification; rather, it creates new law.  I then part ways with my colleagues.

¶ 37.         While
4 V.S.A. § 33(8) grants the family division “exclusive jurisdiction to
hear and dispose of . . . all juvenile
proceedings filed pursuant to chapters 51, 52 and 53 of Title 33,
. . . whether the matter originated in the criminal or family
division of the superior court,” it cannot be rigidly interpreted as
controlling any matter involving a child actor when other statutes establish a
parallel jurisdiction in the criminal division.  Section 33(8) does not
eliminate the statutes governing transfers from other divisions. 
Moreover, this is no longer a juvenile proceeding.  There is no juvenile
before the court.  Defendant is not a child.
¶ 38.         When
creating the juvenile justice system, the Legislature gave special attention to
eleven (now twelve) serious felonies, one of which is sexual assault.  33 V.S.A. § 5204(a).  And, the statutes continue
to provide that any proceeding concerning a child after attaining the
age of fourteen, but not the age of eighteen, who is alleged to have committed
one of the serious felonies “shall originate in the district or superior
court.”  Id. § 5201(c); see infra,
n.4.  The delinquency procedures provide that a child as
young as ten may be treated as an adult if he or she is alleged to have
committed one of the serious felonies specified in § 5204(a).  33
V.S.A. §§ 5102(2)(C)(i) and 5204(a).  And,
if the case was commenced in the family division, it can be transferred to the
criminal division when there is probable cause to believe that the child
committed one of the listed acts and when “public safety and the interests of
the community would not be served by treatment of the child under the
provisions of law relating to juvenile court and delinquent children.” 
Id.. § 5204(c) (emphases added). 
Obviously the Legislature always understood that some actions, even when done
by someone as young as ten years of age, should be handled as a criminal
prosecution.  Murder, for example, comes to mind.  
¶ 39.         This
view runs counter to the majority’s assumption that it is the age of the
perpetrator at the time of the offense that exclusively determines
jurisdiction.  This view is supported by provisions of 33 V.S.A.
§ 5203(a), which direct the criminal division to transfer to the family
division any case filed against a defendant under the age of sixteen at the
time of the offense, unless it is one of the offenses specified in
§ 5204(a).[5] 
Then, § 5203(b) gives the criminal division discretion to transfer a case
if the defendant was between the age of fourteen and sixteen at the time an
offense specified in § 5204(a) was alleged to have been committed, and, if
transferred, “the minor shall thereupon be considered to be subject to
this chapter as a child charged with a delinquent act.” (Emphasis added.) 
However, by the very language used, the jurisdictional choices found in
§ 5203 only govern cases against minors.  It does not address
charges against adult defendants.  That distinction takes this case out
from under the governance of those statutes. Given the statutory structure in
place, it is equally reasonable to find that it is the alleged actions of the
perpetrator that control the jurisdiction of the criminal
division.    
¶
40.        
Reading the entire statutory scheme involving criminal jurisdiction in
pari materia to ascertain the Legislature’s intent, In re Willey, 2010
VT 93, ¶ 11, __ Vt. __, 14 A.3d 954, there is no indication that the
Legislature intended to allow adult defendants to completely avoid the results
of their actions as a juvenile.  Chapter 52 of Title 33 is a comprehensive
act governing juvenile delinquency proceedings with the overarching goal of
protecting children who are still growing and maturing from the consequences of
their actions.  See In re G.T., 170 Vt. 507, 532, 758 A.2d 301, 318
(2000) (“[T]he focus of delinquency proceedings in general . . .
is on protecting children. . . .” (Johnson,
J., dissenting)); In re P.M., 156 Vt. 303, 310, 592 A.2d 862, 865 (1991)
(“We recognize that the purpose of Vermont’s juvenile provisions is not to
punish juvenile offenders, but to . . . provide treatment
consistent with the public interest for children who have committed delinquent
acts.”); see also 33 V.S.A. § 5101(a) (construing juvenile judicial proceedings
chapters “[t]o remove from children committing delinquent acts the taint of
criminality and the consequences of criminal behavior and to provide
supervision, care, and rehabilitation”).  
¶
41.        
However, the protections of the juvenile justice system are designed for
children, not adults.  The majority emphasizes the young age of the
defendant when the acts alleged were committed and discusses the goal of
juvenile proceedings to protect and rehabilitate youth in trouble.  It
posits that the policy behind the juvenile justice system takes into account
that a child who commits a felony offense is still a child and “his culpability
must be viewed in light of his age.”  Ante, ¶ 19. 
I agree, especially in a case where the allegation is sexual assault by a
thirteen-year-old.  However, there is nothing to preclude a defendant
charged with committing a sexual assault when he was thirteen from moving to
dismiss a charge against him, arguing, for example, that, due to his tender
years, the State will be unable to prove the requisite intent to satisfy the
elements of the offense.  See Northern Sec. Ins. Co. v. Perron, 172
Vt. 204, 215, 777 A.2d 151, 159 (2001) (explaining that it is “improper to
[automatically] infer an intent to injure in cases
where a minor sexually abuses another minor”).  Questions that surround
juvenile adjudications—brain development, emotional maturity, and impulse
control—do not disappear when raised by a defendant charged with an act
committed while a child.  Moreover, failing to allow a prosecution to go
forward removes any ability of the State to offer rehabilitative services to a
man who, as a child, allegedly committed a felonious act of sexual assault,
leaving him untreated. 
¶
42.        
Further support for this position is found in the statutes governing
youthful offenders.  33 V.S.A. §§ 5281-5288.  By its terms,
§ 5281 contemplates criminal charges being brought against a child the age
of ten in the criminal division.  It reads:  “A motion may be filed
in the criminal division . . . requesting that a defendant
under 18 years of age in a criminal proceeding who had attained the age of 10
but not the age of 18 at the time the offense is alleged to have been committed
by treated as a youthful offender.”  Id.
§ 5281(a).  If the motion is granted, the case can be
transferred to the family division.  Id.
§ 5281(b).  Obviously, some criminal charges against
ten-year-olds are filed in the criminal division.  With such statutory
provisions in place, I cannot think the Legislature ever intended to leave a
thirteen-year-old unaccountable for murder, arson resulting in death, assault
and robbery with a dangerous weapon, or kidnapping.  Public protection
requires that former children who committed very serious felonies be
accountable in a court of law.  I would much prefer a court evaluate
legislatively designated criminal behavior and impose any necessary
rehabilitative restrictions rather than letting a calendar decide the outcome.
¶
43.        
While the provisions of newly enacted 33 V.S.A. § 5204(a) cannot be
applied in this case, I find the expression of legislative intent found in the
preamble to Act 16 to be instructive:  “[T]he general assembly never
intended the juvenile procedures statutes to be used to permit a person who
commits a crime to escape the consequences of that behavior simply by turning
18 before the state has filed charges against the person.”  2011, No. 16, § 1.  That expression of intent
strongly suggests that the criminal division has always had jurisdiction over a
case involving the crimes enumerated in § 5204(a) when the offender is now
an adult. 
¶
44.        
I am authorized to state that Chief Justice Reiber joins this dissent.
 

 


 


 


 


 


Associate
  Justice

 





[1] 
For example, § 5204a(b)(3) provides that the family
division may consider the following factors in determining whether public
safety and the interests of justice require a transfer to the criminal
division:
 
  (A) The
maturity of the defendant as determined by consideration of his or her age,
home; environment; emotional, psychological, and physical maturity; and
relationship with and adjustment to school and the community.
  (B) The
extent and nature of the defendant’s prior criminal record and record of
delinquency.
  (C) The
nature of past treatment efforts and the nature of the defendant’s response to
them.
  (D) Whether
the alleged offense was committed in an aggressive, violent, premeditated, or
willful manner.
  (E) The
nature of any personal injuries resulting from or intended to be caused by the
alleged act.
  (F) Whether
the protection of the community would be best served by transferring
jurisdiction from the family division to the criminal division of the superior
court.


[2] 
Subsection 5204(d) of Title 33 provides as follows:
 
In making its determination as required under
subsection (c) of this section, the court may consider, among other matters:
 
  (1) The
maturity of the child as determined by consideration of his or her age, home,
environment; emotional, psychological and physical maturity; and relationship
with and adjustment to school and the community.
  (2) The
extent and nature of the child’s prior record of delinquency.
  (3) The
nature of past treatment efforts and the nature of the child’s response to
them.
  (4) Whether
the alleged offense was committed in an aggressive, violent, premeditated, or
willful manner.
  (5) The
nature of any personal injuries resulting from or intended to be caused by the
alleged act.
  (6) The
prospects for rehabilitation of the child by use of the procedures, services,
and facilities available through juvenile proceedings.
  (7) Whether
the protection of the community would be better served by transferring
jurisdiction from the juvenile court to the criminal division of the superior
court.


[3] 
The only factor that is present in § 5204(d) but not § 5204(a)(b)(3) concerns
amenability to rehabilitation and is located in § 5204a(b)(2)(A)(ii) as a
factor to be considered in determining whether the youthful offender program
would be appropriate for the adult defendant who is charged with a delinquent
act committed as a child.
 


[4] 
I believe the choice of courts reflects the older system of hearing most felony
charges punishable by life in prison in the superior courts, while leaving
lesser criminal charges in the districts courts.  4 V.S.A.
§§ 114, 439 (1972).  This older reality is still reflected in
the current version of 33 V.S.A. § 5201(c). 


[5] 
Thus, the criminal division properly recognized the clear statutory mandate to
transfer the L&L charge to the family division because defendant was under
sixteen at the time of the alleged lewd and lascivious conduct and L&L is
not of the twelve serious crimes enumerated in 33 V.S.A. § 5204(a).  As a
final consideration of the L&L charges, I note that the statutory scheme
creates a de facto statute of limitations on unlisted crimes in certain
situations.



