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SJC-11856

             COMMONWEALTH    vs.   MATTHEW A. MOGELINSKI.



 Franklin-Hampshire.        September 8, 2015. - November 13, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.


Juvenile Court, Jurisdiction, Delinquent child. Jurisdiction,
     Juvenile Court, Juvenile delinquency proceeding, Transfer
     hearing. Practice, Criminal, Juvenile delinquency
     proceeding, Transfer hearing, Nolle prosequi. Youthful
     Offender Act. Delinquent Child.



     Complaint received and sworn to in the Franklin and
Hampshire Counties Division of the Juvenile Court Department on
February 4, 2014.

    A motion to dismiss was heard by Judith J. Phillips, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
     John T. Ouderkirk, Jr., for the defendant.


    LENK, J.   In this case, we address an issue precipitated by

our decision in Commonwealth v. Mogelinski, 466 Mass. 627 (2013)
                                                                     2


(Mogelinski I).   There, we decided, among other things, that the

Juvenile Court did not have jurisdiction over youthful offender

indictments, G. L. c. 119, § 54, that issued after the

defendant's eighteenth birthday, notwithstanding the prior

existence of timely filed delinquency complaints, involving much

the same facts, on which nolle prosequi was subsequently

entered.   In the wake of our decision, the youthful offender

indictments were dismissed.   The Commonwealth thereafter filed,

in the Juvenile Court, a delinquency complaint essentially

identical to those where nolle prosequi was previously entered

in order to seek a transfer hearing.     See G. L., c. 119, § 72A.

The question before us is whether the Juvenile Court has

jurisdiction to proceed on the basis of the newly filed

complaint.   We conclude that it does.

     1.    Background and prior proceedings.   On May 10, 2011,

delinquency complaints were filed against the defendant alleging

two counts of rape of a child under sixteen, G. L. c. 265, § 23,

and three counts of indecent assault and battery of a child

under fourteen, G. L. c. 265, § 13B.     The defendant was then

less than two weeks shy of his eighteenth birthday.1


     1
       In 2013, after Commonwealth v. Mogelinski, 466 Mass. 627
(2013) (Mogelinski I), was argued, the Governor signed St. 2013,
c. 84, "An act expanding juvenile jurisdiction," which amended
various provisions of G. L. c. 119. The act confers
jurisdiction on the Juvenile Court over cases where the alleged
offense was committed up to the point of a defendant's
                                                                     3


       A summons issued on May 11, 2011, ordering the defendant to

appear in the Juvenile Court on May 31, 2011.    Between the date

the summons issued and the date of the court appearance, the

defendant turned eighteen.    The defendant appeared in Juvenile

Court on May 31, 2011, and was duly arraigned on the delinquency

complaints.

       In December, 2011, the Commonwealth sought youthful

offender indictments against the defendant pursuant to G. L.

c. 119, § 54, on the basis of a subset of the acts that were the

subject of the complaints, i.e., those offenses alleged to have

occurred after the defendant had turned fourteen.    The basis of

the May, 2011, complaints was the defendant's alleged sexual

abuse of the victim over a seven-year period, from August, 2001,

until December, 2008, when the defendant was between eight and

fifteen years old.    The December, 2011, youthful offender

indictments alleged that the offenses occurred between May 23,

2007, and December 31, 2008, when the defendant was between

fourteen and fifteen years old.    See Mogelinski I, supra at 642

n.9.    The Commonwealth sought the indictments, which would have

kept proceedings in the Juvenile Court, prior to our decision in

Commonwealth v. Nanny, 462 Mass. 798, 801-806 (2012) (Nanny),



eighteenth, rather than seventeenth, birthday. As in
Mogelinski I, we analyze the case under the statutory scheme as
it existed at the relevant times prior to this amendment. See
id. at 630, 631 nn.3,4.
                                                                    4


clarifying that such youthful offender indictments could not be

returned after a defendant's eighteenth birthday.

    After the indictments were returned on December 5, 2011,

the Commonwealth entered nolle prosequi on all of the

delinquency complaints.   The defendant then moved unsuccessfully

to dismiss the indictments, arguing that the Juvenile Court had

no jurisdiction to proceed on indictments issued after his

eighteenth birthday.   On reported questions following the denial

of that motion, we concluded in Mogelinski I, supra at 646, that

the Juvenile Court did not have jurisdiction over youthful

offender indictments returned after the defendant's eighteenth

birthday, notwithstanding the prior existence of timely filed

juvenile delinquency complaints, brought on much the same facts,

on which nolle prosequi previously entered.   The youthful

offender indictments were thereafter dismissed.

    In January, 2014, acting pursuant to G. L. c. 119, § 72A,

the Commonwealth brought a new complaint in the Juvenile Court

against the then twenty year old defendant.   Like the 2011

juvenile delinquency complaints, the 2014 complaint charged the

defendant with two counts of rape of a child under sixteen,

G. L. c. 265, § 23, and three counts of indecent assault and

battery on a child under fourteen, G. L. c. 265, § 13B.

    Before arraignment, a Juvenile Court judge granted the

defendant's motion to dismiss the complaint for lack of
                                                                   5


jurisdiction, essentially on the basis that the defendant's

prior apprehension on the 2011 complaints precludes compliance

with one of the prerequisites for proceeding under G. L. c. 119,

§ 72A, i.e., that the defendant "is not apprehended until after

his . . . eighteenth birthday."   The Commonwealth appealed, and

we transferred the case to this court on our own motion.

    2.   Discussion.   The Commonwealth contends that the judge

did not have authority to dismiss the complaint before the

defendant's arraignment, and that the Juvenile Court in fact had

jurisdiction over the defendant to proceed on the 2014

complaint.   We consider each claim in turn.

    a.   Dismissal prior to arraignment.   In Commonwealth v.

Humberto H., 466 Mass. 562, 575 (2013) (Humberto H.), we held

that,

         "[w]here, as here, a juvenile files a motion to
    dismiss a complaint before arraignment based on the absence
    of probable cause, and where a judge, after reviewing the
    'four corners' of the complaint application, concludes that
    there is a substantial likelihood that the motion is
    meritorious, a judge does not abuse his discretion in
    deciding to hear and rule on that motion before arraignment
    to protect the child from the potential adverse
    consequences of a [Court Activity Record Information
    database] record."

The Commonwealth urges us to limit the motions to dismiss that

permissibly may be heard by a Juvenile Court judge before

arraignment to those based on the absence of probable cause.

However, given our analysis in Humberto H., supra, we discern no
                                                                     6


good reason to preclude the judge from exercising discretion

where, as here, the judge determines that there is no

jurisdiction based on the record before her.

    b.   Availability of a transfer hearing.   The Juvenile Court

is a court of limited jurisdiction, which "has no . . .

authority in the absence of a specific statutory authorization."

Commonwealth v. A Juvenile, 406 Mass. 31, 34 (1989).    As we said

in Mogelinski I, supra at 630-631,

         "In general, the Juvenile Court has jurisdiction over
    children between the ages of seven and seventeen who are
    alleged to have committed an offense (other than murder)
    prior to their seventeenth birthday. G. L. c. 119,
    §§ 52, 74. The Juvenile Court also retains jurisdiction
    over children who turn eighteen while their cases are
    pending, in order to adjudicate 'all remands and retrials
    following appeals from their cases, or during continuances
    or probation, or after their cases have been placed on
    file, or for any other proceeding arising out of their
    cases.' G. L. c. 119, § 72 (a) (where proceeding commenced
    via delinquency complaint). G. L. c. 119, § 72 (b) (where
    proceeding commenced via youthful offender indictment)."
    (Footnote omitted.)

         However,

         "[w]hile 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." (Footnote
    omitted.)

Mogelinski I, supra at 632.
                                                                   7


     Pursuant to the version of G. L. c. 119, § 72A, at issue in

this case,2 all defendants who meet two statutory predicates

(commission of offense prior to seventeenth birthday and

apprehension after eighteenth birthday) are to be afforded the

protections of a transfer hearing.   See Mogelinski I, supra at

644-645.   There is no dispute as to the first statutory

predicate.   The question before us as to the Juvenile Court's

jurisdiction over the 2014 complaint rests on whether the second

predicate was met, i.e., whether the defendant was "not

apprehended until after his eighteenth birthday."   G. L. c. 119,

§ 72A.

     In Mogelinski I, supra at 634-635, we held for purposes of

G. L. c. 119, §§ 72 and 72A, that apprehension occurs upon

commencement of process, provided the defendant is available to

     2
       The pre-2013 version of G. L. c. 119, § 72A, provided in
relevant part:

          "If a person commits an offense or violation prior to
     his seventeenth birthday, and is not apprehended until
     after his eighteenth birthday, the [Juvenile 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
     . . . ."
                                                                     8


the court.3   Commencement of process is in this context

ordinarily achieved by the issuance of a summons, which serves

as a notification of the pending charges.    Mogelinski I, supra

at 635.   Insofar as G. L. c. 119, § 72A, required that the

defendant not be "apprehended until after his eighteenth

birthday," and the defendant here was summonsed on the 2014

complaint when he was twenty years old, the second statutory

predicate would appear to be satisfied.    The defendant, however,

maintains that his apprehension in 2011 on identical complaints

where nolle prosequi have been entered precludes the

apprehension contemplated by G. L. c. 119, § 72A, either because

that section contemplated that the first apprehension on the

charged offenses occur only after the defendant has turned

eighteen, or because the 2014 complaint is in reality a

continuation of the 2011 complaints on which apprehension

occurred before his eighteenth birthday.    For the reasons that

follow, neither contention is correct, and we conclude that the

Juvenile Court has jurisdiction over the 2014 complaint.

     "[A] statute must be interpreted according to the intent of

the Legislature ascertained from all its words construed by the

     3
       This definition departs from the colloquial use of
"apprehend," in which "the word . . . ordinarily is used to
indicate a physical arrest." Mogelinski I, supra at 634. The
ordinary use, however, "is inapt in the juvenile setting, given
that the statute discourages the use of arrest warrants and
instead directs courts to issue summonses in the vast majority
of cases." Id.
                                                                    9


ordinary and approved usage of the language, considered in

connection with the cause of its enactment, the mischief or

imperfection to be remedied and the main object to be

accomplished, to the end that the purpose of its framers may be

effectuated."   Commonwealth v. Clark, 472 Mass. 120, 129 (2015),

quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934).     "[T]he

meaning of a statute . . . must, in the first instance, be

sought in the language in which the act is framed, and if that

is plain, . . . the sole function of the courts is to enforce it

according to its terms."   Commonwealth v. Ventura, 465 Mass.

202, 208 (2013), quoting Commonwealth v. Boe, 456 Mass. 337, 347

(2010).

    The plain language of G. L. c. 119, § 72A, requires a

transfer hearing where a defendant is "not apprehended until

after his eighteenth birthday."   G. L. c. 119, § 72A.    The

statute contains no language even suggesting that the adult

apprehension, i.e., summons, must be the first and only

apprehension on the offense charged.   See Commonwealth v. One

1980 Volvo Automobile, 388 Mass. 1014, 1015-1016 (1983) ("We are

not free simply to add language to a statute for the purpose of

interpreting the statute according to the Legislature's

perceived objectives" [quotation, alterations, and citation

omitted]).
                                                                    10


      Indeed, in Mogelinski I, supra at 643, we recognized that

more than one apprehension had taken place with respect to the

2011 complaints and youthful offender indictments, which charged

the same offenses but involved different time frames.    We went

on to say that a transfer hearing is the exclusive means of

proceeding against a defendant apprehended after his eighteenth

birthday.   Id.   This is true, we said, even if the defendant had

been previously apprehended before turning eighteen on

complaints rooted in the same facts:

           "The statute clearly prescribes that a specific
      procedure, the transfer hearing pursuant to G. L. c. 119,
      § 72A, take place when a defendant who is over the age of
      eighteen is apprehended, and makes no provision that the
      time of apprehension on [the new charges] relates back to
      the time of apprehension on [the earlier] complaint."

Id.   Also, albeit only in dicta, both the court and the

dissenting justices contemplated that a transfer hearing would

be available in the defendant's case.    See id. at 638; id. at

650 (Gants, J., concurring in part and dissenting in part).    The

court observed that, if the youthful offender indictments in

question were determined to be invalid, as they were, the

Commonwealth would be able to proceed "in such circumstances

only by the filing of a delinquency complaint, followed by a

transfer hearing pursuant to G. L. c. 119, § 72A."    Id. at 638.

      The defendant, however, maintains that there was in reality

no apprehension on the 2014 complaint because the complaint,
                                                                   11


being merely a continuation or revival of the 2011 complaints,

has no independent status.   His "apprehension" in reality

happened in 2011, when he was underage.   This contention relies

on the assumption that the 2011 complaints -- and the

apprehension they occasioned -- were not extinguished when the

Commonwealth entered nolle prosequi on them in 2011 and 2012

after youthful offender indictments were returned.    The

defendant maintains in this regard that entry of nolle prosequi

merely "puts those charges to sleep," but does not extinguish

them in the same way a dismissal would.

    This argument fails since, under our jurisprudence, entry

of nolle prosequi is the equivalent of a dismissal.    See Mass.

R. Crim. P. 16, 378 Mass. 885 (1978) (in rule governing

"dismissal by the prosecution," section on "entry of a nolle

prosequi").   See, e.g., Commonwealth v. Brandano, 359 Mass. 332,

335 (1971) (describing entry of nolle prosequi as "a dismissal

[that] is made with the approval of the Commonwealth [in which]

the judge in effect merely concurs in a recommendation of the

prosecution which is exercising its authority as part of the

[e]xecutive [b]ranch of government"); Commonwealth v. Aldrich,

21 Mass. App. Ct. 221, 224-225 (1985) (equating "dismissal" and

"nolle prosequi" for purposes of double jeopardy analysis).     See

also Commonwealth v. Miranda, 415 Mass. 1, 5-6 (1993) (holding

that entry of nolle prosequi dismisses charges, rather than
                                                                      12


merely making them dormant, such that prosecution can reinstate

charges only by filing them anew, and may not simply revive

them).4   For this reason, we observed in Mogelinski I, supra

at 639, and reiterate here, that when "nolle prosequi is . . .

entered on a complaint," that "complaint is extinguished."      Any

subsequent indictment or complaint, even on the same facts,

"opens a new case," id., which requires a new and independent

apprehension.5



     4
       Commonwealth v. Deheny, 466 Mass. 723 (2014) (Deheny), is
not to the contrary. In that case, "we recognize[d] a relevant
distinction between a judicial dismissal and an entry of a nolle
prosequi. A nolle prosequi is a strategic decision by the
Commonwealth to cease pursuing charges. Its entry is thus an
affirmative exercise of a prosecutorial tool to discontinue
prosecution. . . . In contrast, a judicial dismissal, even one
without prejudice, signals that the Commonwealth has not met its
prosecutorial burden." (Citation omitted.) Id. at 734. This
distinction, however, relates only to whether the dismissal was
initiated by the prosecution or by the judge, relevant in Deheny
to determine responsibility in connection with a speedy trial
analysis, and does not speak to the legal effects of dismissals
and entries of nolle prosequi.
     5
       We hasten to add, however, that the Commonwealth's power
to recharge a defendant after it had earlier entered nolle
prosequi on identical charges is by no means unlimited. The
Commonwealth may not delay a proceeding in a juvenile matter
merely so that it may recharge a defendant after he or she has
turned eighteen, and then seek a transfer hearing. This would
violate the Commonwealth's obligation to act in good faith. See
Mogelinski I, supra at 646 & n.11 (noting that, where
Commonwealth waits until after defendant's eighteenth birthday
and seeks transfer hearing, "it bears the burden of
demonstrating the absence of bad faith or inexcusable delay in
failing to obtain a timely youthful offender indictment" or
juvenile delinquency charge).
                                                                  13


    We are confirmed in our view that, given its raison d'être,

G. L. c. 119, § 72A, confers jurisdiction in circumstances

where, as here, a defendant otherwise would face no possibility

of prosecution for the offenses in question.    The transfer

procedure "was created to address the circumstance in which a

juvenile offender has 'aged out' of the Juvenile Court's

jurisdiction."   Nanny, supra at 806.   "We will not impose an

overly narrow or artificial construction on a statute that would

frustrate a grant of jurisdiction that the Legislature clearly

intended."   Commonwealth v. Porges, 460 Mass. 525, 532 (2011)

(Porges).    See Nanny, supra at 805 (noting that, "[h]ad the

Legislature intended to eliminate the requirement of a § 72A

transfer hearing" in particular context, "it could have done so"

explicitly when it rewrote statute in 1996).

    In such circumstances, the transfer hearing serves a dual

purpose.    On the one hand, it protects the public by ensuring



     Moreover, if jeopardy had attached on the first set of
charges, or if the charges were dismissed with prejudice, the
prosecution could not recharge the defendant. Mass. R. Crim.
P. 16 (b), 378 Mass. 885 (1979). See Commonwealth v. Hernandez,
421 Mass. 272, 277 (1995) (discussing circumstances in which
dismissal with prejudice is appropriate). Furthermore, when a
defendant has pleaded guilty to certain charges in consideration
of dismissal of other charges, the prosecutor may not refile the
dismissed charges. Commonwealth v. Benton, 356 Mass. 447, 448
(1969). Additionally, when the Commonwealth recharges a
defendant, the prosecution must go through all the procedures
for the filing of new charges and may not, for example, revive
charges at a moment's notice and send them immediately to trial.
See Commonwealth v. Miranda, 415 Mass. 1, 5-6 (1993).
                                                                    14


that a defendant will not "fall 'between the cracks' and be free

from prosecution where [he] is apprehended after his eighteenth

birthday."    Mogelinski I, supra at 647, quoting Porges, supra at

531.    On the other hand, the transfer procedure protects the

defendant by allowing a Juvenile Court judge to dismiss the

charges if the judge finds them unsupported by probable cause or

if the judge is "satisfied that [discharging the defendant] is

consistent with the protection of the public."    G. L. c. 119,

§ 72A.

       Here, without a transfer hearing, the defendant would face

no possibility of prosecution for the charged offenses in either

adult court or Juvenile Court.    This is the very result that the

transfer law seeks to avoid.    Our construction, by contrast,

furthers the legislative purpose of ensuring that this defendant

does not "fall 'between the cracks.'"    Porges, supra at 531.

This does not mean that the defendant will or should be tried as

an adult.    It means only that there is a "possibility of

criminal consequences [if the] Juvenile Court judge [determines]

that the interests of the public require the [defendant] to be

tried for the offense rather than discharged."    Id. at 532.

       Finally, we made reference in Mogelinski I to this case as

being among "that narrow set of cases where the Commonwealth

wishes to proceed against an individual who is just shy of the

Juvenile Court's jurisdictional age limit."    Mogelinski I, supra
                                                                  15


at 646.   Given the clarification of the relevant statutes

provided in Mogelinski I, Nanny, Porges, and here, we anticipate

that, going forward, situations like this will be quite rare.

This is particularly so in light of the Commonwealth's burden to

demonstrate the absence of bad faith or inexcusable delay in

failing to obtain a timely juvenile delinquency complaint or

youthful offender indictment, which would cause the proceedings

to remain in the Juvenile Court.   See Mogelinski I, supra at 646

n.11.   We note that, while the defendant asserts without

explanation that the Commonwealth acted in bad faith in filing

the 2014 complaint, we discern no support in the record for any

suggestion that the Commonwealth delayed filing the 2014

complaint in order to prosecute the defendant in adult court.

                                    Judgment reversed.
