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SJC-12395

                       J.H.   vs.   COMMONWEALTH.



         Suffolk.       December 7, 2017. - April 12, 2018.

   Present:   Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.


Juvenile 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.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 3, 2017.

    The case was reported by Lenk, J.


     Thomas A. Dougherty, III, for the juvenile.
     Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.
     Afton M. Templin, for Youth Advocacy Division of the
Committee for Public Counsel Service, amicus curiae, submitted a
brief.


    KAFKER, J.      A 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
                                                                    2


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.

    In her 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 transfer."

    We 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
                                                                    3


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.

     Here, 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 bad faith.1




     1 We acknowledge the amicus brief submitted by the youth
advocacy division of the Committee for Public Counsel Services.
                                                                    4


    1.    Background and prior proceedings.   In June and July of

2007, the defendant was sixteen years old and the complainant

was thirteen years old.     As summarized by the Juvenile Court

judge at the transfer hearing, the complainant described three

incidents in detail, in which she alleged that she and the

defendant engaged in sexual intercourse.

    In October, 2007, the investigation was referred to the

Plymouth County district attorney's office.    The complainant's

mother advised the district attorney's office that the

complainant did not wish to participate in a prosecution at that

time.    As a result, the investigation was closed.

    The investigation was reopened in April, 2009, when the

complainant was fifteen years old.    At that time, the

complainant agreed to participate in a sexual assault interview.

The complainant again decided not to pursue the matter because

she thought that the defendant "eventually wanted to be with

[her], and at that time [that] is what [she] wanted" and "didn't

want [the defendant] to be in any trouble."

    In 2014, the investigation was reopened for the third time,

when the complainant, then twenty years old, presented herself

at the Middleborough police department and indicated a desire to

go forward with the case.

    The defendant was not apprehended, for the purposes of

G. L. c. 119, § 72A, until 2014, when he was twenty-three years
                                                                     5


old.   Complaints issued in the Plymouth County Division of the

Juvenile Court Department against the defendant for three counts

of rape of a child with force in violation of G. L. c. 265,

§ 22A.    The defendant was subsequently arraigned on the

complaints in the Juvenile Court.

       In 2016, pursuant to G. L. c. 119, § 72A, a judge in the

Juvenile Court held a transfer hearing.    The complainant

testified as described above.    After the evidence had closed,

the prosecution conceded that there was insufficient evidence of

force on only one of the charges and sought, for the first time,

a probable cause finding and transfer of the lesser included

offense of rape of a child (statutory rape).    The defendant

objected.

       In the defendant's argument against transfer, which was

focused on disproving the element of force, defense counsel

objected to the lesser included charge being considered where

the Commonwealth had not charged him with statutory rape.       He

argued:

       "I don't have a lesser included offense in front of me of
       the statutory rape, and this is a probable cause hearing.
       And I'm not sure that the [c]ourt can modify the complaints
       at this time to include a lesser included offense of
       statutory rape. The Commonwealth could have [pleaded] that
       but didn't. They could have amended over the last two
       years or actually since 2007 but didn't. They elected to
       proceed, your Honor, with these particular charges, and I
       would argue I think the [c]ourt may be bound by what it has
       on the four corners before it."
                                                                      6


    At the conclusion of his argument, defense counsel returned

briefly to the issue of statutory rape as a lesser included

offense.   He argued that there was no probable cause to support

a finding of statutory rape, and if the judge found that there

was, the judge should nevertheless discharge the defendant and

not cause a criminal complaint to issue, as the defendant and

the complainant were both just teenagers "experimenting with

their sexuality."

    Without addressing the objection or otherwise alerting the

defendant that she intended to consider the lesser included

offenses, the judge thereafter issued a decision in which she

found insufficient evidence to establish probable cause for rape

of a child with force on any of the charges but found sufficient

evidence to establish probable cause for statutory rape on all

three charges.   She also found that it was in the public

interest that the defendant be tried for such offenses,

concluding that "[t]he nature of a complaint for rape and abuse

of a minor militates in favor of binding the [d]efendant over

for trial as an adult".       She then dismissed the juvenile

complaints and bound the defendant over for trial in adult court

for the lesser included offenses of statutory rape.

    2.     Discussion.   a.   Transfer of a lesser included offense

not expressly charged.    General Laws c. 119, § 72A, provides:
                                                                   7


    "If a person commits an offense or violation prior to his
    eighteenth birthday, and is not apprehended until after his
    nineteenth birthday, the court, after a hearing, shall
    determine whether there is probable cause to believe that
    said person committed the offense charged, and shall, in
    its discretion, either order that the person be discharged,
    if satisfied that such discharge is consistent with the
    protection of the public; or, if the court is of the
    opinion that the interests of the public require that such
    person be tried for such offense or violation instead of
    being discharged, the court shall dismiss the delinquency
    complaint and cause a criminal complaint to be issued. The
    case shall thereafter proceed according to the usual course
    of criminal proceedings and in accordance with the
    provisions of [G. L. c. 218, § 30,] and [G. L. c. 278,
    § 18]. Said hearing shall be held prior to, and separate
    from, any trial on the merits of the charges alleged."

The defendant argues that G. L. c. 119, § 72A, does not allow

the transfer of a lesser included offense that was not charged

in the complaint.   We disagree.

    It is well established that statutory rape is a lesser

included offense of rape of a child with force.   See

Commonwealth v. Thayer, 418 Mass. 130, 132 (1994) ("statutory

rape in G. L. c. 265, § 23, is a lesser included offense within

the forcible rape of a child under sixteen years of age within

G. L. c. 265, § 22A" [footnote omitted]); Commonwealth v.

Licciardi, 387 Mass. 670, 673 (1982) (jury "could return a

verdict of guilty of statutory rape, a lesser included offense

within the rape indictments"); Commonwealth v. Franks, 365 Mass.

74, 78 (1974) ("crime of statutory rape . . . is a crime

included within the crime of forcible rape . . . which was

charged in the indictment"); Commonwealth v. Harris, 74 Mass.
                                                                    8


App. Ct. 105, 110 (2009) ("the crime with which the defendant

was charged was rape of a child by force, as to which rape of a

child is a lesser included offense").   It is also well

established that a defendant may be convicted of a lesser

included offense even if the lesser included offense is not

expressly charged.   See, e.g., Commonwealth v. Walker, 426 Mass.

301, 303 (1997); Commonwealth v. Keane, 41 Mass App Ct. 656, 661

(1996).

    We have specifically applied these principles in the

transfer hearing and statutory rape context as well.   In

Commonwealth v. Williams, 427 Mass. 59, 59 (1998), we held that

a Superior Court judge could accept a guilty plea and impose a

sentence on a lesser included offense of statutory rape where

the defendant's case was transferred from the Juvenile Court

only on the greater and more serious offense of forcible rape.

We reasoned that even though the lesser included offense was not

specifically charged, the "legislative intent that such lesser

included offenses are part and parcel of the transfer hearing

process may fairly be presumed."   Id. at 62.   We therefore

conclude in answer to the first reported question that G. L.

c. 119, § 72A, permits a Juvenile Court judge, who has dismissed

offenses charged for lack of probable cause, to cause a criminal

complaint to be issued for lesser included offenses, where the

lesser included offenses are supported by probable cause and the
                                                                   9


interests of the public require that the defendant be tried for

the lesser included offenses.

    b.   Notice.   The second reported question asks us to

address whether the transfer of lesser included offenses in this

case was unconstitutional because this defendant was not

provided with "proper notice."   As explained infra, we conclude

that although the defendant had notice of the lesser included

offenses, he did not have a meaningful opportunity to be heard

before the transfer occurred.

    Individuals in the Juvenile Court have a constitutional due

process right to "essential fairness."   Commonwealth v. Wayne

W., 414 Mass. 218, 223 (1993).   Included in that right is

adequate notice.   In re Gault, 387 U.S. 1, 33 (1967);

Commonwealth v. Olivo, 369 Mass. 62, 68 (1975) (form of notice

provided must be reasonably calculated to give actual notice of

proceedings and opportunity to be heard).   Here, the defendant

was on notice, as a matter of law, that statutory rape was a

lesser included offense of rape of a child with force, and that

lesser included offenses are "part and parcel" of the transfer

process, and thus there was a possibility of transfer of the

statutory rape charges.   Williams, 427 Mass. at 62.     See Franks,

365 Mass. at 78.   This, however, is not the end of the inquiry.

    As evidenced by this case, Juvenile Court judges must make

difficult, discretionary decisions regarding whether to transfer
                                                                     10


an offense or discharge a defendant.     These decisions require

consideration of the specific crime and the particular

defendant.   A thoughtful presentation by defense counsel

directed at both issues is thus critical.     See J.D. Blitzman &

K.J. King, Hearings Pursuant to G. L. c. 119, § 72A:     "Aging

Out" of the System, in 1 Massachusetts Juvenile Court Bench Book

§ 12, at 12-11 (Mass. Cont. Legal Educ. 3d ed. 2011 & Supp.

2014) ("[Advocates] must provide the court with adequate

information to place the alleged offending behavior into a

developmental context and to allow the court to understand how,

if at all, the defendant's more mature development reduces the

risk of reoffense.     A reliable determination of the significant

issues that confront a judge in proceedings under this statute

can be made only if all relevant developmental and contextual

evidence is before the court").    Proper notice is essential to

such a presentation.    See Commonwealth v. Bousquet, 407 Mass.

854, 860 & n.3 (1990) (transfer proper where counsel on notice

of nature of hearing and "had a sufficient basis to conclude

that the interests of the public required transfer").     We

therefore conclude that where a judge finds no probable cause to

believe the defendant committed the crime charged, but does find

probable cause to believe the defendant committed a lesser

included offense, the judge must provide the defendant notice of

that decision and give the defendant a meaningful opportunity to
                                                                  11


present evidence and argument as to why discharge of the

defendant is consistent with the protection of the public and

thus transfer of the lesser included offenses is not required.

     In the instant case, the issue of lesser included offenses

was not raised by the prosecutor until after the close of

evidence and only after conceding that there was insufficient

evidence of force on one of the charges.   The defendant objected

to this development, and the judge did not address the objection

or state her view regarding whether she would consider

transferring only the lesser included offenses until she issued

her decision.   Consequently, when defense counsel made his

argument regarding transfer, he was not informed that the judge

had decided that there was not probable cause to support the

rape of a child with force charges but that there was probable

cause to support the lesser included offenses of statutory rape.

As we conclude that the defendant is entitled to be so notified

in order to be given a meaningful opportunity to present

evidence and argument directed at why transfer of the lesser

included offenses of statutory rape was not required, we reverse

and remand.

    The specific facts and crimes at issue reveal the

importance of such notice and opportunity to be heard.     The

protection of the public "interests" analysis differs

significantly for rape of a child with force and statutory rape
                                                                  12


when considering teenage sexual activity.    A teenager who

forcibly rapes another presents a greater public safety risk

than a teenager engaged in consensual sexual activity with a

peer.2   As sexual activity among teenagers is common, even the

original decision to prosecute often depends on whether the

sexual activity is consensual or coerced.3




     2 Compare Commonwealth v. Sullivan, 78 Mass. App. Ct. 631,
631–632 (2011) (teenage victim forcibly raped by teenage
codefendant while teenage defendant held victim down by her
shoulders), with Doe v. Attorney General, 430 Mass. 155, 164
(1999) (in cases involving consensual sexual activity between
teenagers and requirement of sex offender registration, State's
interest in protecting children not as great because risk of
reoffense may be minimal and present danger not significant).

     3 See generally Commonwealth v. Bernardo B., 453 Mass. 158,
161 (2009) (emphasizing in statutory rape case that
"Commonwealth has broad discretion in deciding whether to
prosecute a case"). See Centers for Disease Control and
Prevention, Substance Use and Sexual Risk Behaviors Among Teens
(2017), https://www.cdc.gov/healthyyouth/substance-use/pdf/dash-
substance-use-fact-sheet.pdf [https://perma.cc/Z4H6-TL9P]
("According to the 2015 National Youth Risk Behavior Survey
. . . [forty-one per cent] of high school students have . . .
had intercourse and [thirty per cent] of high school students
are currently sexually active"). See also High, Good, Bad and
Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape
Laws Against the Protected Class, 69 Ark. L. Rev. 787, 808
(2016) (describing common practice of "prosecutorial discretion
. . . exercised to exclude sexual activity among adolescents
from the reach of legal regulation unless it appears to be
exploitative"); Oberman, Regulating Consensual Sex with Minors:
Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703, 750
(2000) (describing "an apparent consensus among prosecutors
against enforcement of statutory rape laws in cases of
'consensual sexual relationships' among peers").
                                                                   13


     The judge's decision finding no probable cause of rape of a

child with force, but probable cause of statutory rape,

therefore fundamentally changed the protection of the public

"interests" calculus.   Further complicating the public interest

analysis in the context of consensual teenage sexual relations,

the complainant's own decision to proceed expressly depended at

least at one point on whether the defendant "eventually wanted

to be with [her]."   Finally, if the defendant were tried as an

adult seven years after the offense, the consequences of a

statutory rape conviction would not be a finding of delinquency

but the possibility of a life felony.   Both the defense counsel

and the judge should have been carefully focused on all of these

issues.

     Without having the benefit of the judge's decision on

probable cause, however, defense counsel chose to focus his

argument on the more serious charges of rape, for which he had a

strong defense.4   Indeed, defense counsel addressed the lesser


     4 For the defendant, the case also changed dramatically once
the prosecutor sought to transfer statutory rape as well as rape
of a child with force charges. The defendant had not testified
at the hearing. On the issue of force, the defendant could rely
on the complainant's testimony alone, which described none. But
once the prosecution expressed its intentions to proceed on
statutory rape charges, the defendant was in an evidentiary
bind. With statutory rape charges being sought, the
complainant's testimony was now sufficient and unrebutted. That
being said, the complainant's testimony alone provided probable
cause to proceed on the statutory rape charges. The difficult
                                                                    14


included offenses of statutory rape only in passing, including

the critical and complicated discretionary issue whether the

court should discharge the defendant, even if there was probable

cause to support the lesser included offenses.

    In sum, the defendant is entitled to reopen the transfer

proceedings to present evidence and argument on whether

discharge is consistent with the protection of the public.

    c.    Delay in apprehension.   In posthearing briefing

requested by the parties and allowed by the judge, the defendant

argued that the delay in prosecuting the case was "done in bad

faith."   As we discern no indicia of bad faith from this record,

and the timing of the prosecution appears directly connected to

the complainant's willingness to proceed, we conclude that this

argument has no merit.    See Commonwealth v. Mogelinski, 473

Mass. 164, 171-172 (2015).

    3.    Conclusion.    For the reasons set forth above, we

conclude that the judge did not err in determining that, lesser

included offenses could be transferred under G. L. c. 119,

§ 72A, and that the defendant was on notice as a matter of law

that such a transfer was a possibility.     We conclude, however,

that where a judge finds no probable cause of the crime charged,

but does find probable cause of a lesser included offense, the



issue, requiring further proceedings, is not probable cause but
the discretionary decision to transfer or discharge.
                                                               15


judge must give the defendant a meaningful opportunity to

address why discharge rather than transfer of the lesser

included offense is consistent with the protection of the

public, and that such opportunity was not provided here.

    We remand the matter to the single justice of the county

court where an order of remand to the Juvenile Court shall issue

for further proceedings consistent with this opinion.

                                   So ordered.
