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14-P-550                                             Appeals Court

                COMMONWEALTH   vs.   MATTHEW MERCIER.


                           No. 14-P-550.

           Middlesex.     May 7, 2015. - August 7, 2015.

              Present:   Trainor, Agnes, & Blake, JJ.


Jurisdiction, Juvenile Court, Juvenile delinquency proceeding.
     Juvenile Court, Jurisdiction. Practice, Criminal,
     Complaint, Indictment. Youthful Offender Act. Delinquent
     Child.



     Indictments found and returned in the Superior Court
Department on December 6, 2012.

    The cases were tried before Janet Kenton-Walker, J.


     Patrick Levin, Committee for Public Counsel Services, for
the defendant.
     Jessica Langsam, Assistant District Attorney, for the
Commonwealth.


    AGNES, J.    The principal issue raised by the defendant,

Matthew Mercier, is whether his conviction in 2013 of raping his

younger cousin on two occasions in 2008 must be vacated due to a

jurisdictional defect at the outset of the case.     In particular,
                                                                   2


he maintains that the case against him was commenced in the

Juvenile Court Department by means of an indictment and not by a

juvenile complaint, in violation of the requirements of G. L.

c. 119, § 74, as appearing in St. 1996, c. 200, § 15, which

provides in relevant part that "[e]xcept as hereinafter provided

and as provided in [G. L. c. 119, §§ 52-84, . . . no criminal

proceeding shall be begun against any person who prior to his

seventeenth birthday commits an offense against the laws of the

commonwealth . . . ."1   Although the charges are very serious,


     1
       Under the law applicable at the time of the proceedings in
this case, there were exceptions to the general rule, that
proceedings must be begun by a juvenile complaint, that are not
applicable in this case. For example, if a person committed an
offense while between the ages of fourteen and seventeen years
of age like the ones charged in this case, i.e., offenses
involving "the infliction or threat of serious bodily harm," and
the juvenile was apprehended prior to turning eighteen years of
age, the Commonwealth could elect to proceed by means of a
complaint or seek a youthful offender indictment. See G. L.
c. 119, § 54, as amended through St. 1996, c. 200, § 2, and
G. L. c. 119, § 72(b), as appearing in St. 1998, c. 98, § 2.
However, for the reasons we explain in the text, in a case such
as this in which the juvenile is not apprehended until after his
eighteenth birthday, the Commonwealth does not have the right to
proceed by direct indictment.

     General Laws c. 119, § 74, as appearing in St. 1996,
c. 200, § 15, in its entirety reads as follows:

     "Except as hereinafter provided and as provided in sections
     fifty-two to eighty-four, inclusive, no criminal proceeding
     shall be begun against any person who prior to his
     seventeenth birthday commits an offense against the laws of
     the commonwealth or who violates any city ordinance or town
     by-law, provided, however, that a criminal complaint
     alleging violation of any city ordinance or town by-law
     regulating the operation of motor vehicles, which is not
                                                                   3


and a Superior Court jury returned verdicts of guilty, we are

constrained to agree with the defendant and, accordingly, order

the judgments to be vacated.2

     Background.   On December 23, 2010, the case was commenced

against the defendant by means of a youthful offender (YO)

indictment returned by a Middlesex County grand jury.3   A



     capable of being judicially heard and determined as a civil
     motor vehicle infraction pursuant to the provisions of
     chapter ninety C may issue against a child between sixteen
     and seventeen years of age without first proceeding against
     him as a delinquent child.

     "The juvenile court shall not have jurisdiction over a
     person who had at the time of the offense attained the age
     of fourteen but not yet attained the age of seventeen who
     is charged with committing murder in the first or second
     degree. Complaints and indictments brought against persons
     for such offenses, and for other criminal offenses properly
     joined under Massachusetts Rules of Criminal Procedure 9
     (a)(1), shall be brought in accordance with the usual
     course and manner of criminal proceedings."
     2
       At the outset of the hearing, counsel informed the judge
that Commonwealth v. Nanny, 462 Mass. 798 (2012), was then
pending before the Supreme Judicial Court on the question
whether a direct indictment of a person in the defendant's
position (over the age of eighteen when apprehended for an
offense committed while he was a juvenile) was permissible. The
Nanny case was decided on July 16, 2012, before the judge
decided to transfer the defendant from Juvenile Court to adult
court, and was the basis of a specific motion, and argument, by
defense counsel that the case should be dismissed for lack of
jurisdiction. In any case, we are required to address
jurisdictional defects at any stage of the proceedings. See
Commonwealth v. DeJesus, 440 Mass. 147, 150-151 (2003);
Commonwealth v. Porges, 460 Mass. 525, 527 (2011).
     3
       A "[y]outhful offender" is defined by the statute in
effect at the time of this case as "a person who is subject to
an adult or juvenile sentence for having committed, while
                                                                   4


juvenile complaint was never sought nor issued. Following an

evidentiary hearing conducted by the Juvenile Court on July 11,

2012, a judge found probable cause to believe the defendant had

raped his younger cousin while the defendant was sixteen years

old and the victim was nine years old.4   The defendant was not

apprehended until 2010, after he turned eighteen years of age.

Based on the probable cause determination, the judge dismissed

the YO indictment, ordered "the transfer of prosecution" to the

District Court, and requested issuance of adult criminal

complaints.   On December 6, 2012, a Middlesex County grand jury

indicted the defendant as an adult on charges of aggravated rape

of a child (count one) and rape on a child with force (count


between the ages of fourteen and seventeen, an offense against a
law of the commonwealth which, if he were an adult, would be
punishable by imprisonment in the state prison, and (a) has
previously been committed to the department of youth services,
or (b) has committed an offense which involves the infliction or
threat of serious bodily harm in violation of law, or (c) has
committed a violation of paragraph (a), (c) or (d) of section
ten or section ten E of chapter two hundred and sixty-nine;
provided that, nothing in this clause shall allow for less than
the imposition of the mandatory commitment periods provided in
section fifty-eight of chapter one hundred and nineteen." G. L.
c. 119, § 52, definition of "[y]outhful offender," inserted by
St. 1996, c. 200, § 1.
     4
       In view of the disposition we reach, it is not necessary
to summarize the evidence presented at trial, or to address the
other issue raised by the defendant concerning the alleged
improper comments made by the prosecutor during her closing
argument. However, because it is possible that this case could
proceed again and result in a trial, we strongly suggest that
counsel familiarize themselves with the new guidelines
applicable to opening statements and closing arguments. See
Mass.G.Evid. § 1113 (2015).
                                                                   5


two).    On September 23, 2013, following a trial by jury before

the Superior Court, the defendant was convicted on both charges.

On October 3, 2013, the defendant was sentenced on count one to

a mandatory minimum term of ten years to ten years and one day

in State prison.    On count two the judge imposed a sentence of

ten years' probation, to be served from and after the sentence

on count one.

     Discussion.    The defendant maintains that because the

offenses in this case were committed while he was sixteen years

of age and a juvenile but he was over the age of eighteen when

apprehended,5 it was necessary to commence the case by means of a

delinquency, or juvenile, complaint, and without such a charging

document the Juvenile Court lacked the authority to conduct any

proceedings, including a transfer hearing, and that the Superior

Court lacked the authority to try the indictments.    This

statement of law is supported by the terms of the applicable

statutes and by a series of decisions by the Supreme Judicial

Court.




     5
       The events alleged in this case occurred prior to the
passage of St. 2013, c. 84, "which extended the Juvenile Court's
jurisdiction to persons who are seventeen years of age at the
time of committing an offense." Watts v. Commonwealth, 468
Mass. 49, 49-50 (2014). Throughout this opinion, we refer to
the law as it existed at the time the defendant was apprehended
in 2010.
                                                                   6


     The statute governing transfer hearings like the one

conducted in this case, G. L. c. 119, § 72A, as appearing in St.

1996, c. 200, § 13A, provides:

     "If a person commits an offense or violation prior to his
     seventeenth birthday, and is not apprehended until after
     his eighteenth 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."
     (Emphasis supplied.)
"The plain meaning of this statute is that, where a person has

allegedly committed a crime before his seventeenth birthday but

is apprehended after his eighteenth birthday, a delinquency

complaint shall be filed in the Juvenile Court, and a Juvenile

Court judge shall conduct a hearing to determine whether there

is probable cause to believe that the person committed the crime

charged and, if so, how the case should proceed."   Commonwealth

v. Porges, 460 Mass. 525, 528 (2011) (Porges).6



     6
       Later in its opinion in the Porges case, the court
underscored this point when it stated that "we conclude that the
Superior Court has jurisdiction over indictments charging rape
of a child with force (G. L. c. 265, § 22A), and indecent
assault and battery of a child under the age of fourteen (G. L.
                                                                   7


     A reading of § 72A to require a juvenile complaint in all

cases in which the offender was a juvenile when the offense was

committed but who is not apprehended until he is no longer a

juvenile, is reinforced by the terms of G. L. c. 119, § 74, as

appearing in St. 1996, c. 2000, § 15, which provides in relevant

part that except as specifically provided in that chapter, "no

criminal proceeding shall be begun against any person" for an

offense committed prior to his seventeenth birthday.7

     Porges was followed by Commonwealth v. Nanny, 462 Mass. 798

(2012) (Nanny).   In Nanny, the court determined that a transfer

hearing pursuant to § 72A must be held before the Commonwealth

may seek an indictment pursuant to G. L. c. 119, § 54,8 against a



c. 265, § 13B), pursuant to G. L. c. 119, § 72A, where the
defendant is alleged to have been under the age of fourteen at
the time of the commission of the offenses, but was not
apprehended until after his eighteenth birthday, provided a
delinquency complaint is filed and a Juvenile Court judge
determines that there is probable cause to believe the defendant
committed the offenses charged, and the judge, in the sound
exercise of discretion, determines that the interests of the
public require that the defendant be tried for the offenses in
the usual course of criminal proceedings instead of being
discharged." Porges, 460 Mass. at 532-533 (emphasis supplied).
     7
       Further the exception set out in § 74 for motor vehicle
offenses specifically provides that a criminal complaint
alleging a motor violation may issue "without first proceeding
against him as a delinquent child." This language again
indicates that a delinquency complaint is required to initiate
proceedings unless the statute otherwise makes an exception.
     8
       General Laws c. 119, § 54, as amended through St. 1996,
c. 200, § 2, provides in part that "[t]he commonwealth may
proceed by complaint in juvenile court or in a juvenile session
                                                                    8


defendant in the position of the defendant in this case, namely,

one who is alleged to have committed offenses when he was

between fourteen and seventeen years of age, but who was not

apprehended until after his eighteenth birthday.   Id. at 798-

799.   Nanny rejects the Commonwealth's principal argument in

this case that § 54 authorized it to commence the case against

the defendant by means of a YO indictment.   In Nanny, 462 Mass.

at 800, the court explained that prior to 1996, Massachusetts

law provided that in order to prosecute as an adult a person who

was a juvenile at the time an offense was committed, a Juvenile

Court judge had to conduct a transfer hearing first under G. L.

c. 119, § 61, repealed by St. 1996, c. 200, § 7.   In all such

instances, the case against the juvenile began when a Juvenile

Court complaint was issued.   The 1996 amendment of G. L. c. 119,

§ 54, which governs this case,

       "was aimed primarily at 'address[ing] growing concern[s]
       about violent crimes committed by juveniles,' by creating a
       youthful offender classification. The concurrent repeal of


of a district court, as the case may be, or by indictment as
provided by chapter two hundred and seventy-seven, if a person
is alleged to have committed an offense against a law of the
commonwealth while between the ages of fourteen and seventeen
which, if he were an adult, would be punishable by imprisonment
in the state prison, and the person has previously been
committed to the department of youth services, or the offense
involves the infliction or threat of serious bodily harm in
violation of law or the person has committed a violation of
paragraph (a), (c) or (d) of section ten or section ten E of
chapter two hundred and sixty-nine. The court shall proceed on
the complaint or the indictment, as the case may be, in
accordance with sections fifty-five to seventy-two, inclusive."
                                                                    9


     § 61, and amendment of § 54, allowed prosecutors to
     'proceed [directly] against a child by indictment in a
     Juvenile Court if the child [was] considered a "youthful
     offender,"' without having to request a transfer after a
     hearing from a Juvenile Court judge."
Id. at 800-801 (citations omitted).   Although the 1996 amendment

creating the YO category streamlined the process by means of

which a juvenile could be indicted and subject to adult

penalties for certain violent offenses, it did not change

preexisting law which required that a juvenile complaint be

obtained to initiate the case.   In Nanny, 462 Mass. at 801-802,

the court held that before a juvenile can be indicted as a YO,

there must be a transfer hearing pursuant to G. L. c. 119,

§ 72A.   In Nanny, the court also specifically rejected the

Commonwealth's argument, renewed in the present case, that § 72A

applies only to cases in which the Commonwealth has elected to

initiate the proceedings by complaint, leaving the Commonwealth

free in other cases to directly indict a juvenile as a YO under

§ 54 without first conducting a transfer hearing under G. L.

c. 119, § 72A.   "Under the clear language of the statute, once

the two conditions that trigger § 72A are satisfied, 'a

delinquency complaint shall be filed in the Juvenile Court'"

(emphasis original).   Nanny, 462 Mass. at 802, quoting from

Porges, 460 Mass. at 528.9



     9
       The Nanny case was decided before the completion of the
transfer hearing in this case and was the basis of an
                                                                   10


     Despite the detailed statutory analysis by the Supreme

Judicial Court in Commonwealth v. Nanny, 462 Mass. at 799-806,

the Commonwealth argues that the holding in Nanny leaves room

for a different outcome in this case because unlike in Nanny,

the defendant not only had the benefit of a probable cause

determination by the grand jury, but also had the benefit of a

hearing before a Juvenile Court judge that met the requirements

of G. L. c. 119, § 72A.10   In Nanny, supra at 805, unlike in the

present case, the Commonwealth sought to bypass the requirement

of a § 72A transfer hearing by arguing that a grand jury's

determination of probable cause was equivalent to or at least

satisfied § 72A's requirement of a probable cause determination.

The court in Nanny rejected this argument.   Ibid.11   In Nanny,

the court also indicated that the avoidance of a transfer

hearing deprived the defendant of the safeguards under the



unsuccessful motion by the defendant to dismiss the YO
indictments. See note 2, supra.
     10
        A transcript of the transfer hearing conducted by the
Juvenile Court judge is part of the record before us. The
defendant does not claim that he was deprived of any of the
rights he was entitled to under G. L. c. 119, § 72A, with the
exception that a Juvenile Court complaint was neither sought nor
issued.
     11
       The court stated, "A probable cause determination differs
from that made in grand jury proceedings in many respects
including that a judge makes the determination, not a grand
jury, and a defendant may present a defense and cross-examine
witnesses affording significant due process protections not
available before a grand jury." Id. at 805.
                                                                     11


second prong of § 72A in that the discretion exercised by a

judge after a § 72A transfer hearing is more expansive than the

sentencing discretion exercised by a judge after a person is

tried and convicted on an indictment, because one option

available to a judge in a § 72A hearing is to discharge the

defendant from any further prosecution.     Id. at 805-806.    The

record before us indicates that the judge properly addressed the

issues that should be addressed at the close of a § 72A hearing.

    However, Nanny is not the final word from the Supreme

Judicial Court on the jurisdictional requirements in cases in

which the offender was a juvenile when the offense was committed

but is not apprehended until after he turns eighteen.     In

Commonwealth v. Mogelinski, 466 Mass. 627, 628 (2013)

(Mogelinski), the Supreme Judicial Court answered the precise

question before us:   "[w]hether an individual may be indicted as

a youthful offender after he has turned 18, for offenses he

allegedly committed between the ages of 14 and 17?"     The court

answered the question "no."   Id. at 629.   In Mogelinski,

although Juvenile Court complaints charging the defendant with

rape of a child were initially obtained before the defendant's

eighteenth birthday, by the time of his arraignment on those

complaints he had turned eighteen years of age.     Id. at 629.

However, while the delinquency complaints were still pending in

the Juvenile Court, the Commonwealth obtained YO indictments
                                                                     12


against the defendant pursuant to G. L. c. 119, § 54.    Ibid.

The delinquency complaints were eventually nolle prossed.      Id.

at 630.   In Mogelinski, the court explained that under the law

applicable in this case (prior to the amendment of G. L. c. 119

by St. 2013, c. 84, see note 5, supra), when a person is a

juvenile at the time the offenses are committed and when he is

apprehended12 (even if he turns eighteen while the case is

pending), and the offenses consist of one or more violent crimes

other than murder, the Commonwealth can proceed along either of

two tracks:   a juvenile complaint or a YO indictment, with

significant differences in terms of the dispositional options

available to the judge and the safeguards available to the

juvenile.   Id. at 631-632.   The distinctions between the two

tracks are significant.13     However, once the person turns

eighteen before he is first apprehended (as in this case), the


     12
       In this case between the ages of fourteen and seventeen
(under current law now eighteen). See note 5, supra.
     13
       "[C]omplaints against individuals label them
'delinquents' and place them on one track, while indictments
label their subjects 'youthful offenders' and place them on
another. A 'delinquent child' is subject to essentially
rehabilitative penalties and remedies, while a 'youthful
offender' is subject to penalties ranging from placement in a
[Department of Youth Services] facility to adult sentences in
the State prison." Mogelinski, 466 Mass. at 641 (citations
omitted). See Commonwealth v. Clint C., 430 Mass. 219, 229
(1999) (Ireland, J., dissenting) ("By statute, the adjudication
of a delinquency complaint is not a criminal proceeding. G. L.
c. 119, §§ 53 and 74. The return of a youthful offender
indictment transforms the proceeding into a criminal one").
                                                                  13


offender can still be prosecuted in the Juvenile Court, but the

Commonwealth no longer retains the two options noted earlier.

"While proceedings under either a delinquency complaint or a

youthful offender indictment presuppose that an individual is

under the age of eighteen when the proceeding is commenced, the

Commonwealth is not precluded from prosecuting individuals who

are 'apprehended' after their eighteenth birthdays for offenses

committed prior to turning seventeen.    See G. L. c. 119, § 72A.

In such cases, the Commonwealth first must file a delinquency

complaint and obtain a transfer hearing in the Juvenile Court."

Mogelinski, 466 Mass. at 632.

     The question for us therefore is the consequence of failing

to obtain a juvenile complaint against the defendant who had

turned eighteen years of age before he was apprehended but who

had the benefit of a transfer hearing that conformed to G. L.

c. 119, § 72A, in all other respects, an indictment by a grand

jury, and a jury trial?   The answer, again is supplied by the

Supreme Judicial Court in Mogelinski:    "Ultimately, the Juvenile

Court is a court of limited jurisdiction, which 'has no . . .

authority in the absence of a specific statutory

authorization.'"   Id. at 645, quoting from Commonwealth v. A

Juvenile, 406 Mass. 31, 34 (1989).14    Here, without the prior


     14
       In Mogelinski, the court added, "If the Legislature had
disagreed with the result in Commonwealth v. Nanny, supra, and
                                                                  14


issuance of a juvenile complaint, the Juvenile Court lacked the

authority to proceed on a direct indictment of the defendant as

a YO and to transfer the defendant's case to adult court.




wished to make it easier for youthful offender indictments to
issue after an individual otherwise ages out of the juvenile
justice system, it would have addressed the matter when it
increased by one year the Juvenile Court's jurisdictional age
limit. Indeed, raising that age limit was the method it chose
for bringing more people under the aegis of the Juvenile Court,
rather than blurring the lines between delinquency complaints
and youthful offender indictments." Mogelinski, 466 Mass. at
646. This is consistent with the view that "[t]he Juvenile
Courts, like all the courts of the Commonwealth, except the
Supreme Judicial Court, are creatures of the Legislature and
derive their powers, other than those powers that are inherent
in all courts, . . . from the Legislature." Parents of Two
Minors v. Bristol Div. of the Juvenile Ct. Dept., 397 Mass. 846,
851 (1986).

     To suggest that judges are authorized to nullify the
requirement of a juvenile complaint in a case such as this would
raise a troublesome constitutional question under the doctrine
of the separation of powers established by art. 30 of the
Massachusetts Declaration of Rights. The Legislature has broad
authority to define the jurisdiction of courts below the Supreme
Judicial Court and to prescribe the manner of procedure in such
courts. See Opinion of the Justices, 372 Mass. 883, 901-904
(1977). See also Charles C. v. Commonwealth, 415 Mass. 58, 64
(1993), quoting from Johnson v. Commonwealth, 409 Mass. 712, 716
(1991) ("It is a first principle that the jurisdictions of the
several lower courts of this Commonwealth, and therefore their
powers, are limited to those granted by the Constitution of the
Commonwealth or by the Legislature"); Commonwealth v. Pyles, 423
Mass. 717, 722 (1996) ("As an examination of the various
provisions of G. L. c. 277 and 278 discloses, the Legislature
also may establish and define methods of criminal practice and
procedure"); Commonwealth v. Tim T., 437 Mass. 592, 594-595
(2002) (in disposing of a juvenile case, judge may not disregard
restrictions imposed by legislation).
                                                                 15


Accordingly, the judgments are vacated, the verdicts are set

aside, and the indictments are dismissed.15

                                        So ordered.




     15
       Nothing we have said should be understood as expressing
the opinion that the Commonwealth cannot at this time proceed
against the defendant by a juvenile complaint. Indeed, when
asked the question at oral argument, counsel for the defendant
conceded that he was not aware of any basis for a double
jeopardy claim in view of the jurisdictional defect.
