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16-P-1645                                              Appeals Court

              COMMONWEALTH    vs.   COLE C., a juvenile. 1


                             No. 16-P-1645.

         Suffolk.       November 8, 2017. - January 19, 2018.

                Present:   Milkey, Blake, & Singh, JJ.


Juvenile Court, Jurisdiction. Jurisdiction, Juvenile
     Court. Youthful Offender Act. Practice, Criminal,
     Indictment, Transfer hearing. Statute, Construction.


     Indictments found and returned in the Superior Court
Department on July 5, 2016.

     After transfer to the Suffolk County Division of the
Juvenile Court Department, a motion to dismiss was heard
by Peter M. Coyne, J.


     Colby M. Tilley, Assistant District Attorney (Michael V.
Glennon, Assistant District Attorney, also present) for the
Commonwealth.
     Melissa Allen Celli for the defendant.


     MILKEY, J.     A grand jury indicted the defendant as a

youthful offender after he had turned eighteen years old.

Relying on Commonwealth v. Mogelinski, 466 Mass. 627 (2013)


     1
         A pseudonym.
                                                                      2


(Mogelinski I), a Juvenile Court judge dismissed the indictments

for want of jurisdiction.      For the reasons that follow, we

reverse and order that the indictments be reinstated.

       Background.    The relevant facts are undisputed.   On April

20, 2016, Boston police arrested the defendant on a variety of

charges related to an armed home invasion that occurred that

day.    He was seventeen years old at that time.    After his

arrest, the police took him to a Department of Youth Services

(DYS) facility.      The following day, a twelve-count delinquency

complaint was issued, and a second delinquency complaint that

included two additional charges was issued a day later.        The

defendant was arraigned on April 25, 2016, and two days after

that (one week after the alleged incident), he turned eighteen.

       On July 5, 2016, a grand jury indicted the defendant as a

youthful offender on five charges:      armed home invasion, armed

robbery, assault with a dangerous weapon, unlawful possession of

a firearm, and intimidation of a witness.      The indictments were

filed with the Juvenile Court on July 11, 2016, and the case was

continued to July 26, 2016, for arraignment.      However, a

Juvenile Court judge refused to arraign the defendant on the

youthful offender indictments on the grounds that -- because the

defendant had turned eighteen prior to the issuance of the

indictments -- the court lacked jurisdiction over them.        The

judge also denied alternative relief that the Commonwealth
                                                                       3


requested, the holding of a transfer hearing pursuant to G. L.

c. 119, § 72A, in order that the defendant might be tried as an

adult.      The Commonwealth filed a motion to reconsider; the judge

denied that motion and allowed the defendant's oral motion to

dismiss the indictments, issuing a memorandum and order

explaining his rulings.

     Meanwhile, the defendant remained committed to the DYS

facility until his release on bail in October.       The delinquency

complaints remain pending, but those proceedings have been

stayed. 2

     Discussion.     1.   The scope of the appeal.   We begin by

noting that the Commonwealth acknowledges on appeal that the

alternative relief it requested in the Juvenile Court, the

holding of a G. L. c. 119, § 72A, transfer hearing, has no

application to this case.     By its express terms, § 72A now

applies to juveniles who are apprehended after they turn

nineteen.     G. L. c. 119, § 72A, as amended by St. 2013, c. 84,

§ 23.    See Mogelinski I, supra at 632 n.4 (noting that as a

result of the 2013 amendments, "the Commonwealth may seek a

transfer hearing if an individual is apprehended after the age


     2
       One of the delinquency dockets indicates that a judge
allowed the Commonwealth's motion for a stay over the
defendant's objection. The other docket appears to show that
the Commonwealth's motion for a stay formally remains under
advisement; in any event, that case too apparently has been
stayed informally in the interim.
                                                                      4


of nineteen, for conduct allegedly committed prior to his or her

eighteenth birthday").    See also Commonwealth v. Mogelinski, 473

Mass. 164, 167-170 (2015) (Mogelinski II).     Although the parties

disagree on exactly when the juvenile here should be deemed to

have been apprehended, they agree that, in any event, he was

apprehended before he turned nineteen.     Because the § 72A

transfer hearing process has no application to this case, the

appeal before us is limited to whether the Juvenile Court had

jurisdiction over the youthful offender indictments.

      2.   The import of Mogelinski I.   In finding no

jurisdiction, the judge relied on Mogelinski I.     Overall, the

setting of that case is indeed quite similar to the one before

us.   Like the present case, Mogelinski I involved someone who --

when he turned eighteen -- was already subject to a pending

delinquency complaint but had not yet been indicted as a

youthful offender. 3   Id. at 629-630.   The court held that

youthful offender indictments cannot be issued against an

      3
       Delinquency complaints and youthful offender indictments
present alternative paths for prosecuting juveniles in Juvenile
Court. These two paths differ significantly as to the
procedures that apply and the potential sanctions that can be
imposed. Youthful offender indictments may be pursued "for
specific types of violent offenses or where the individual
previously had been adjudicated delinquent and was between the
ages of fourteen and seventeen [now eighteen, see G. L. c. 119,
§ 54, as amended by St. 2013, c. 84, § 8] at the time of the
offense." Mogelinski I, supra at 631. The youthful offender
provisions were enacted in 1996 in "response to societal
concerns about violent crimes committed by juveniles."
Commonwealth v. Clint C., 430 Mass. 219, 222-223 (1999).
                                                                     5


individual once he or she turns eighteen, regardless of whether

a delinquency complaint was pending at that time. 4   Id. at 637.

Thus, Mogelinski I on its face supports the proposition on which

the judge relied, namely that eighteen year olds cannot be

indicted as youthful offenders.

     However, an understanding of the continuing import

of Mogelinski I needs to take into account the fact that in

2013, the Legislature expanded the Juvenile Court jurisdiction

by increasing by one year the age at which juveniles could be

prosecuted there.     See St. 2013, c. 84 (effective September 18,

2013).   Under the 2013 amendments, the statute now "confers

jurisdiction on the Juvenile Court over cases where the alleged

offense was committed up to the point of a defendant's

eighteenth (rather than seventeenth) birthday."     Mogelinski I,

466 Mass. at 630.     Although this statutory change took place

before Mogelinski I was issued, the court applied "the statutory

scheme as it existed at all relevant times prior to this

amendment."   Ibid.    The question we face is how to apply the

points of law enunciated in Mogelinski I to the statute as

amended.




     4
       A four-judge majority rejected the Commonwealth's argument
that the youthful offender indictments effectively were a
continuation of the delinquency proceedings. Mogelinski I,
supra at 643.
                                                                   6


     While the Juvenile Court's jurisdiction has been expanded

from time to time, it remains a court of limited jurisdiction.

Accordingly, the court "'has no . . . authority in the absence

of a specific statutory authorization.'"   Mogelinski II, supra

at 167, quoting Commonwealth v. A Juvenile, 406 Mass. 31, 34

(1989).   We therefore must focus on the specific language of

G. L. c. 119, § 72, the statutory provision that most directly

speaks to the continuing jurisdiction of the Juvenile Court in

prosecution proceedings.   We turn first to a closer examination

of the language of that section as it appeared prior to the 2013

amendments, and then examine what changes have been made to it.

     3.   The jurisdiction of the Juvenile Court prior to the

2013 amendments.   As noted, the Juvenile Court formerly had

jurisdiction only over offenses committed before an alleged

offender turned seventeen.   G. L. c. 119, § 54, as in effect

prior to St. 2013, c. 84, § 8.   However, the age of the

individual when he or she allegedly committed the offense is not

the only factor that determines whether the Juvenile Court has

jurisdiction.   Rather, such jurisdiction is also limited by the

individual's age when the prosecution goes forward.   So long as

a prosecution was commenced prior to the individual's eighteenth

birthday, the court retained continuing jurisdiction of the case

until its conclusion.   See G. L. c. 119, § 72(a), first par.,

prior to amendment by St. 2013, c. 84, § 21; G. L. c. 119,
                                                                    7


§ 72(b).   In this manner, the existence of continued

jurisdiction "presuppose[d] that an individual [was] under the

age of eighteen when the proceeding [was]

commenced."   Mogelinski I, supra at 632.   Notably, because any

alleged offenses at issue necessarily had to involve conduct

that occurred prior to the juvenile's turning seventeen, the

statute effectively gave prosecutors at least a year to bring a

prosecution, be it a delinquency proceeding or a youthful

offender proceeding.   The statute reinforced that seventeen

year-old juveniles could be prosecuted for their conduct prior

to seventeen through a separate provision set forth in G. L.

c. 119, § 72(a), second par., that recognized that such

individuals could be prosecuted in Juvenile Court if they were

"apprehended" between their seventeenth and eighteen birthdays. 5

     If there was no pending proceeding when the juvenile turned

eighteen and he was "apprehended" on the charges after he turned

eighteen, then under the prior version of the statute, the

Commonwealth's only recourse was to pursue a § 72A transfer


     5
       Prior to the 2013 amendments, § 72(a), second par., read
as follows:

     "If a child commits an offense prior to his seventeenth
     birthday, and is not apprehended until between such child's
     seventeenth and eighteenth birthday, the court shall deal
     with such child in the same manner as if he has not
     attained his seventeenth birthday, and all provisions and
     rights applicable to a child under seventeen shall apply to
     such child."
                                                                      8


hearing in an effort to have the juvenile tried as an adult.

See Mogelinski I, supra at 633, citing G. L. c. 119, §§ 72, 72A,

as in effect prior to St. 2013, c. 84 ("persons apprehended

prior to their eighteenth birthdays will be proceeded against as

children, and persons apprehended after their eighteenth

birthdays will either be proceeded against as adults or

discharged").   In common parlance, an alleged offender who had

not been apprehended prior to turning eighteen was said to have

"aged out" of the juvenile system.

     4.   The jurisdiction of the Juvenile Court under the

statute as amended.   As already noted, the 2013 amendments

expanded the jurisdiction of the Juvenile Court to include

offenses committed prior to the alleged offender's turning

eighteen, not seventeen.    G. L. c. 119, § 54, as amended by St.

2013, c. 84, § 8.   It also made a corresponding one-year change

to when § 72A transfer hearings apply; such hearings now apply

only to individuals who are apprehended after they turn

nineteen, not eighteen.    G. L. c. 119, § 54, as amended by

St. 2013, c. 84, § 23.    Thus, it is now alleged offenders who

have not been apprehended before their nineteenth birthdays who

no longer can be prosecuted in Juvenile Court.

     Although the Mogelinski I court applied the earlier version

of the statute in resolving the case presented, it commented

along the way on certain effects of the 2013 amendments.     A one-
                                                                   9


sentence footnote there is of particular relevance to the case

before us.   Specifically, the court stated that, as a result of

the 2013 amendments, the Commonwealth now "may seek a youthful

offender indictment at any point prior to an individual's

nineteenth birthday, for offenses alleged to have been committed

between the ages of fourteen and eighteen."    Id. at 631 n.3. 6

That statement directly supports the Commonwealth's position in

the case before us.   However, we do not view it necessarily as

resolving this case for three reasons.    First, the statement

unquestionably is dicta. 7   Second, the statement is not

accompanied by an analysis of the language of G. L. c. 119,

§ 72, as amended, the section that addresses the jurisdictional

question at issue.    As discussed below, because the 2013

amendments modified only some of the age references in G. L.

c. 119, § 72, that section now includes a potential textual

anomaly that no appellate court yet has examined.    Third, the

defendant argues that even if the statement in note three


     6
       For this proposition, the court cited to St. 2013, c. 84,
§ 8. It was that section that amended G. L. c. 119, § 54, so as
to allow the Commonwealth to prosecute offenses committed by
seventeen year olds in Juvenile Court.
     7
       We recognize, of course, that under its superintendence
powers, G. L. c. 211, § 3, the Supreme Judicial Court has
authority to establish prospective rules of law that are binding
on lower courts even though doing so is unnecessary for
resolution of the case before it. We do not read the third
footnote in Mogelinski I as having been intended as such a
pronouncement.
                                                                  10


of Mogelinski I was intended to set forth a general rule, the

particular circumstances of his case does not fall under that

rule.    We turn now to examining § 72, as amended.

     The current version of § 72 is set forth in full in the

margin (with underscoring used to highlight those age references

that were increased by one year in or after 2013). 8   Even though


     8
       The text of G. L. c. 119, § 72, as amended by 2013, c. 84,
§§ 21-22A, and by St. 2014, c. 165, § 153, is as follows. The
age references that were modified by those amendments have been
italicized.

     "(a) The divisions of the juvenile court department shall
     continue to have jurisdiction over children who attain
     their eighteenth birthday pending final adjudication of
     their cases, including 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.
     Except as provided in subsection (b), nothing herein shall
     authorize the commitment of a person to [DYS] after he has
     attained his twentieth birthday.

     "If a child commits an offense prior to his eighteenth
     birthday, and is not apprehended until between such child's
     eighteenth and nineteenth birthday, the court shall deal
     with such child in the same manner as if he has not
     attained his eighteenth birthday, and all provisions and
     rights applicable to a child under 18 shall apply to such
     child.

     "(b) If the Commonwealth has proceeded by indictment, the
     divisions of the juvenile court department shall continue
     to have jurisdiction over such persons who attain their
     eighteenth birthday pending the final adjudication of their
     cases, including all remands and retrials following appeals
     from their cases, or pending the determination allowed
     under section 58, or during continuances or probation, or
     after their cases have been placed on file, or for any
     other proceeding arising out of their cases. Nothing
     herein shall authorize the commitment of a youthful
                                                                  11


G. L. c. 119, § 54, as amended, now allows the Commonwealth to

seek youthful offender indictments based on conduct undertaken

up to the juvenile's eighteenth birthday, the Legislature did

not make a corresponding one-year change to those portions of

§ 72 that recognized that the Juvenile Court retains

jurisdiction over cases that were pending when the juvenile

turns eighteen.    Instead, the relevant language there reads

exactly as it did before the 2013 amendments.     See § 72(a),
                           9
first par., and § 72(b).       Accordingly, the language of § 72(a),

first par., and § 72(b) -- viewed on its own -- continues to

"presuppose" that juvenile enforcement proceedings will be

commenced prior to the alleged offender's eighteenth birthday

(without the Commonwealth having an extra year to file a

delinquency complaint or obtain a youthful offender

indictment). 10   However, we are mindful that the Supreme Judicial



     offender to [DYS] after he has attained his twenty-first
     birthday."

The 2014 amendment substituted "until between such child's
eighteenth and" for "before his."
     9
       The Legislature amended § 72(a), first par., to allow a
delinquent child to be committed to DYS custody until he or she
turned twenty, not nineteen (a change that is not material to
the appeal before us). No changes whatsoever were made to
§ 72(b).
     10
       Although the Legislature's failure to change the age
references in § 72(a), first par., and § 72(b) from "eighteen"
to "nineteen" may seem curious, this is with the benefit of
hindsight. The 2013 amendments preceded Mogelinski I, and
                                                                  12


Court has cautioned -- in the context of interpreting this very

statute -- that we are to "look to the language of the entire

statute, not just a single sentence, and attempt to interpret

all of its terms 'harmoniously to effectuate the intent of the

Legislature.'"   Mogelinski I, 466 Mass. at 641,

quoting Commonwealth v. Hanson H., 464 Mass. 807, 810 (2013).

In addition, "it is a well-established canon of statutory

construction that a strictly literal reading of a statute should

not be adopted if the result will be to thwart or hamper the

accomplishment of the statute's obvious purpose, and if another

construction which would avoid this undesirable result is

possible."   Reade v. Secretary of the Commonwealth, 472 Mass.

573, 578 (2015), quoting Watros v. Greater Lynn Mental Health &

Retardation Assn., 421 Mass. 106, 113 (1995).   With these

principles in mind, we turn to other language in § 72.




therefore the Legislature did not have the benefit of the four-
justice majority opinion on how the pre-amendment language would
be interpreted. Had a majority of the court accepted the
Commonwealth's argument in Mogelinski I that the youthful
offender proceedings effectively were a continuation of the
related delinquency proceedings, then there would have been
little need to change "eighteen" to "nineteen" in § 72(b) (since
eighteen year olds could be indicted as youthful offenders so
long as a delinquency complaint were brought before they turned
eighteen). In terms of considering any failure by the
Legislature to make such a textual change after Mogelinski I
issued, we note that because of the dicta in note three,
Mogelinski I did not flag any potential textual impediment to
indicting eighteen year olds that the Legislature might consider
fixing.
                                                                  13


     Although the 2013 amendments did not modify the provisions

in § 72 regarding the Juvenile Court's continuing jurisdiction

over pending cases, they did update the age references in the

second paragraph of § 72(a).   That paragraph previously served

to confirm the court's jurisdiction to hear enforcement matters

against alleged offenders who were apprehended after they turned

seventeen but before they turned eighteen.   As a result of the

2013 amendments (and a minor clarifying amendment in 2014), the

second paragraph of § 72(a) now recognizes that the Commonwealth

can bring Juvenile Court enforcement actions against an

individual who "is not apprehended until between such child's

eighteenth and nineteenth birthday," with the matter then being

treated as if the child had not turned eighteen.   It is this

provision that provides the Commonwealth an express pathway for

initiating prosecutions in the Juvenile Court against

individuals between their eighteenth and nineteenth birthdays

(whether delinquency proceedings or youthful offender

proceedings). 11


     11
       It bears noting that unlike § 72(b), which applies only
to youthful offender proceedings, § 72(a) does not expressly
refer to either delinquency proceedings or youthful offender
proceedings. Rather, its language -- "[i]f a child commits an
offense prior to his eighteenth birthday" (emphasis supplied) --
is broad enough to encompass both types of proceedings. Compare
G. L. c. 119, § 58 (a section that similarly uses the undefined
term "child" with reference to both a "delinquent child" and a
"youthful offender"). Nevertheless, we recognize that some
argument can be made, based on the two-part structure of § 72,
                                                                  14


     Our interpretation of the statutory text not only is

consistent with note three of Mogelinski I, but also satisfies

the principle enunciated in that case that we must look to the

statute as a whole, not view language in isolation.   Mogelinski

I, supra at 641.   Were we to conclude, as the judge did, that

the Commonwealth cannot seek youthful offender indictments

against individuals once they turn eighteen, this would leave a

significant gap in the coverage of the statute.   Specifically,

individuals who committed extremely serious offenses while they

were seventeen -- such as the armed home invasion allegedly

committed by the defendant a week before his eighteenth birthday

-- could not be indicted as youthful offenders unless the

Commonwealth actually obtained those indictments before they




that § 72(a) applies only to delinquency proceedings. After
all, since the first paragraph of § 72(a) so closely parallels
§ 72(b), the latter subsection arguably is rendered largely
superfluous if § 72(a) already applied to youthful offender
proceedings. In any event, for the reasons discussed below, we
interpret the second paragraph of § 72(a) as applying to both
delinquency proceedings and youthful offender proceedings,
notwithstanding the somewhat awkward manner in which § 72 is
structured. Finally, we note that although the first paragraph
of § 72(a) and § 72(b) both theoretically apply to youthful
offender proceedings, the latter subsection is plainly the
operative provision to the extent there are any differences.
This explains the court's shorthand reference in Mogelinski I to
§ 72(a) applying "where proceeding commenced via delinquency
complaint" and to § 72(b) applying "where proceeding commenced
via youthful offender indictment." Mogelinski I, supra at 631.
                                                                     15


turned eighteen. 12   Given unavoidable time lags incumbent in

investigating crimes and obtaining indictments, this in turn

would mean that many serious offenses committed by juveniles

could not be prosecuted through youthful offender proceedings

even though the statutes authorizing such proceedings were

enacted to apply to such offenses.    See Commonwealth v. Dale D.,

431 Mass. 757, 760 (2000) ("The Legislature intended to give

prosecutors greater discretion when proceeding against violent

juvenile offenders, and to reduce or eliminate protections

previously afforded to delinquent children").    That result would

be so at odds with the "central purpose" and overall structure

of the statute that we cannot ascribe it to the

Legislature.   Reade v. Secretary of the Commonwealth, 472 Mass.

at 584 ("We decline to construe [a statute] in a manner that is

plainly inconsistent with its central purpose, notwithstanding

the susceptibility of the statute's plain language to such a

construction").

     5.   Application of § 72(a) to this case.    Having concluded

that the statute now provides the Commonwealth a pathway for

securing youthful offender indictments against individuals

between their eighteenth and nineteenth birthdays (for offenses

allegedly committed prior to their turning eighteen), our job is

     12
       Nor could the Commonwealth seek to proceed against them
as adults, at least if they were apprehended prior to their
nineteenth birthdays. See G. L. c. 119, § 72A.
                                                                   16


not yet done.    That is because the defendant argues that even if

the Commonwealth generally can indict eighteen year olds as

youthful offenders, it cannot do so under the particular facts

of this case.    Specifically, he points to the fact that he was

taken into DYS custody on the very day the alleged crime

occurred, while he was still seventeen.    Because he was

"apprehended" before he turned eighteen, the defendant argues,

§ 72(a), second par., is inapplicable.    According to him,

because he was neither indicted as a youthful offender before he

turned eighteen, nor apprehended after he turned eighteen, the

Commonwealth's only option is to proceed on the pending

delinquency complaints.    For the reasons that follow, we

disagree.

     In Mogelinski I, the court discussed at length the meaning

of "apprehended," as that term is used in the context of §§ 72

and 72A.    The court held that when an individual is "available

to the court," he generally is "apprehended" on a juvenile

charge when process issues on that charge.     Mogelinski I, 466

Mass. at 634-636.    The court recognized that in a typical

juvenile case, process would be issued before the individual is

taken into custody.    Id. at 636.   The court also recognized,

however, that there may be cases where "a juvenile may be

apprehended prior to the time of the issuance of a summons or a

warrant, where, for example, the police catch him or her in the
                                                                       17


act of committing a crime."    Id. at 636 n.6.    "In such a case,

taking the juvenile into custody constitutes apprehension" even

though no charges may yet have been filed.       Ibid.

     From all of this, it follows that the defendant here is

correct to the extent he argues that he was first "apprehended"

when he was taken into custody, which indisputably occurred

before he turned eighteen.    What the defendant fails to

recognize, however, is that the delinquency complaints and the

youthful offender indictments are considered to have initiated

distinct proceedings for which there may be different points of

"apprehension."   In Mogelinski I, the court expressly rejected

the argument that the date of apprehension on the youthful

offender proceeding should "relate back" to the date of

apprehension on the prior delinquency proceeding.        Id. at 646.

Instead, the court concluded that "the commencement of process

after an indictment marks a new point of apprehension, distinct

from any apprehension on delinquency complaints."        Id. at 643.

     We recognize that in the case before us, the defendant's

initial apprehension was effected by his being taken into

custody rather than -- as in Mogelinski I -- by the issuance of

process on a delinquency complaint.    However, we discern no

reason why that should make a difference in deciding when the

"new point of apprehension" occurred on the youthful offender

indictments.   To the contrary, viewing the issuance of process
                                                                  18


on youthful offender indictments as initiating the applicable

point of apprehension on those indictments is the only way of

arriving at a sensible construction of the statute that squares

both with its language and the principles enunciated

in Mogelinski I.

     Conclusion.    To sum up, we conclude that the Juvenile Court

had jurisdiction over the youthful offender indictments, because

-- based on the uncontested facts -- the defendant was not

apprehended on them until between his eighteenth and nineteenth

birthdays. 13   See G. L. c. 119, § 72(a), second par.

Accordingly, the judge's order, dated August 9, 2016, allowing

the motion to dismiss the five youthful offender indictments is

reversed, and the five indictments are reinstated. 14

                                     So ordered.



     13
       Strictly speaking, the limited record before us does not
reveal the specific date on which process issued on the youthful
offender indictments. However, we know that this must have
occurred prior to July 26, 2016, the date on which the defendant
appeared in court with respects to the indictments.
     14
       Because the judge concluded that there was no
jurisdiction over the youthful offender indictments, the case
remained impounded in the Juvenile Court. We have kept the case
impounded through the course of these appellate proceedings.
See S.J.C. Rule 1:15, § 2, as appearing in 472 Mass. 1301
(2015). However, we note that once the indictments are
reinstated, impoundment will no longer be warranted. See G. L.
c. 119, § 60A ("The record of a youthful offender proceeding
conducted pursuant to an indictment shall be open to public
inspection in the same manner and to the same extent as adult
criminal records").
