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18-P-920 Appeals Court
COMMONWEALTH vs. LEOPOLD L., a juvenile.
No. 18-P-920.
Suffolk. October 2, 2019. - January 8, 2020.
Present: Wolohojian, Blake, & Englander, JJ.
Practice, Criminal, Juvenile delinquency proceeding, Revocation of probation, Hearsay, Continuance, Sentence. Juvenile Court, Delinquent child, Jurisdiction. Jurisdiction, Juvenile delinquency proceeding. Moot Question. Due Process of Law, Identification, Sentence. Evidence, Identification, Photograph. Department of Youth Services.
Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on August 10, 2015.
A proceeding for revocation of probation was heard by Joseph F. Johnston, J.
Caroline I. Alpert for the juvenile. Julien M. Mundele, Assistant District Attorney, for the Commonwealth.
WOLOHOJIAN, J. This appeal from a probation revocation in
the Juvenile Court raises a number of issues of first
impression, including whether the juvenile, who turned eighteen 2
after committing the crime that violated his probation but
before the probation violation hearing, could be committed to
the custody of the Department of Youth Services (DYS) until age
nineteen. For the reasons set out below, we conclude as a
general proposition that the Juvenile Court has both the
jurisdiction and the authority to impose a probation revocation
disposition to age nineteen. But because the juvenile's
underlying suspended delinquency sentence committed him to DYS
custody only to age eighteen, the judge, after deciding to
revoke the juvenile's probation, could impose only the original
suspended sentence; he could not extend it. For that reason, we
vacate the juvenile's commitment to DYS custody to age nineteen
and order that the original sentence be imposed nunc pro tunc.
In addition, because we reject the juvenile's arguments that the
finding of violation rested on unreliable hearsay evidence, and
that continuances allowed in excess of the time limits for
probation violation hearings in the Juvenile Court constitute
reversible error, we affirm the finding of probation violation
and the revocation of probation. See Commonwealth v. Padua, 479
Mass. 1004, 1005 (2018) (conviction need not be vacated simply
because sentence was incorrect).
Background. In August 2015, a complaint was brought
charging the juvenile with delinquency by reason of unarmed
robbery, G. L. c. 265, § 19 (b), and assault and battery, G. L. 3
c. 265, § 13A (a) (the 2015 charges). On November 9, 2016, the
then-sixteen year old juvenile admitted to sufficient facts and
pleaded delinquent to the charges. He was committed to DYS
custody "suspended until age eighteen," and placed on probation
with conditions to February 8, 2018 (his eighteenth birthday).
On January 22, 2018, not long before he was to turn
eighteen, a new delinquency complaint charged the juvenile with
having committed armed assault with intent to murder, G. L.
c. 265, § 18 (b), assault and battery by means of a dangerous
weapon, G. L. c. 265, § 15A (b), and malicious damage to a motor
vehicle, G. L. c. 266, § 28 (a) (the 2018 charges). He was
arraigned in Juvenile Court that same day, and ordered held on
$20,000 cash bail. A pretrial conference was scheduled for
February 8, 2018.
Also on January 22, 2018, the juvenile was served with a
notice of probation violation alleging that the new criminal
conduct violated the terms of his 2016 probation.1 The juvenile
did not contest a preliminary finding of violation, and the
judge found probable cause and ordered that the juvenile be held
without bail. See Juvenile Court Standing Order 1-17 § V(c)
1 The juvenile had previously been charged with having committed technical violations of probation. The first of these was withdrawn; he was found in violation of probation on the second occasion and reprobated. 4
(2017). The probation violation hearing was set for February 8,
2018.
Thus, as of January 22, 2018, the seventeen year old
juvenile was held on $20,000 cash bail on the 2018 delinquency
complaint, he was held on no bail on the probation violation
notice, and the parties were to appear on February 8, 2018, both
for the probation violation hearing and for a pretrial
conference on the 2018 delinquency complaint. February 8, 2018
was the juvenile's eighteenth birthday.
On the morning of the February 8, 2018 hearing, the
juvenile filed a motion arguing that the Juvenile Court's
jurisdiction over the probation violation would end by the end
of the day, as would its ability to impose any sentence. The
Commonwealth sought a continuance in order to address these
issues, and because it had not summonsed the necessary witnesses
for the probation hearing. The Commonwealth also informed the
judge that it was still reviewing whether to indict the juvenile
as a youthful offender. Over the juvenile's objection, the
judge allowed a continuance to March 8, 2018, set a briefing
schedule with respect to the juvenile's motion, and informed the
Commonwealth that it should be prepared to go forward with its
evidence on the probation violation on March 8. The judge also
extended the juvenile's probation to March 8, without prejudice
to the juvenile's jurisdictional argument. 5
On February 12, 2018, the juvenile filed an emergency
petition for relief with the Supreme Judicial Court under G. L.
c. 211, § 3, challenging both the continuance and the Juvenile
Court's jurisdiction to extend probation beyond the juvenile's
eighteenth birthday. A single justice of the Supreme Judicial
Court denied the petition in part because the juvenile continued
to be held on bail on the new charges, which he had not
challenged.2
The parties next appeared in Juvenile Court on March 8,
2018, as scheduled. As to the 2018 delinquency complaint, the
Commonwealth informed the judge that it had begun to present
evidence to a grand jury and intended to seek an indictment. As
to the probation violation, the juvenile again pressed his
argument that the court lacked jurisdiction and authority given
the juvenile's age. The Commonwealth sought a continuance
because its sole witness (the investigating officer) on the
probation violation was unavailable given unexpected childcare
issues caused by snow and school cancellations. The judge noted
on the record that there had been a significant snowfall the
2 The single justice also denied the petition for the reasons in the Commonwealth's opposition, which is not part of the record before us. The Commonwealth has not argued that the single justice's ruling has any binding effect here. Without knowing the bases for the single justice's ruling or the arguments made to him, we decline to give it any such force. 6
previous evening resulting in school cancellations and even a
delayed opening of the court. Over the juvenile's objection,
the judge continued the probation violation hearing for one week
to March 15, 2018. The judge also denied the juvenile's request
that the judge terminate his detention.
The evidentiary portion of the probation violation hearing
was conducted on March 15, 2018, with argument conducted the
following week on March 22, 2018, after the judge had had an
opportunity to review the video recording (video) exhibits.3 The
evidence (which came in through the investigating officer)
showed the following. On January 14, 2018, the victim and his
friend, driving two separate cars, returned home after having
gone out to get something to eat. As the victim was backing
into a parking spot, three to four young men appeared. Two
wielded baseball bats and smashed the windows of the victim's
car. Another then reached in and stabbed the victim. The
victim's friend managed to disperse the group by driving his car
toward them, and the victim then drove himself to a local
medical clinic for treatment. Finding it closed, the victim
called 911. He recounted the incident to the responding officer
and was then transported by ambulance to a hospital, where the
We, like the Juvenile Court judge, have viewed the video 3
recording of the police interview of the juvenile as well as the surveillance footage. 7
officer conducted a short interview in which the victim
described his assailants only as younger Hispanic males.
The victim's friend was interviewed by police at the
station shortly after the attack. The friend's account was
consistent with what we have set out above and added the
following. He was "pretty sure" that one of the attackers was
the juvenile. The day before the incident, the friend and the
victim had seen the juvenile about fifty yards from where the
assault occurred. Upon seeing the juvenile, the victim said,
"[O]h, there goes [the juvenile] and me and him have a beef, as
in like a feud, fight situation." The juvenile was wearing a
grey jumpsuit.
Five days after the incident, after having been released
from the hospital, the victim appeared at the police station
with his father in order to be interviewed. The victim repeated
what he had previously said about the incident but added the
following. The victim identified the juvenile as the person who
broke the car windows and hit his hand with a bat. He had heard
from a friend that the juvenile had used a metal bat in a
previous (unrelated) assault. The victim stated that the
juvenile's nickname was "Puerto Rico," and told the officer
where the juvenile lived, stating that he had known the juvenile
for about two years and that they had previously been friends.
The victim confirmed that he had seen the juvenile the day 8
before the attack and that the juvenile was wearing the same
hoodie.
The victim added that he recognized the stabber, described
him as having "long hair," and identified him as Adam,4 whom he
(the victim) had known for about two years and saw approximately
monthly. He provided Adam's address. The victim also said that
he had been involved in a physical altercation with Adam a few
months earlier.
A surveillance video obtained from a nearby building
confirmed the details of the attack in all particulars, but did
not show any of the attackers' faces.
The victim identified both the juvenile and Adam from
double-blind photographic arrays. When the police went to
arrest the juvenile at his home, his family attempted to divert
police while the juvenile escaped. The juvenile was apprehended
as he fled out the back exit.
After hearing the evidence, the judge continued the hearing
to March 22, 2018, so that he could review the videos. When the
parties returned on that date, the juvenile again argued that
the court did not have jurisdiction over him given his age, that
both due process and double jeopardy would be violated should
any disposition be imposed beyond that imposed in the original
4 A pseudonym. 9
sentence on the 2015 charges, that the hearsay evidence was not
reliable, and that the evidence did not establish by a
preponderance of the evidence that the juvenile participated in
the attack. The judge disagreed, found the juvenile in
violation of his probation, revoked the suspended sentence, and
committed him to DYS custody to age nineteen (i.e., to February
8, 2019). This appeal followed.5
Discussion. The juvenile raises three primary arguments on
appeal, all of which are preserved. First, he argues that he
was deprived of due process because the probation violation
rested solely on unreliable hearsay. Second, he contends that
the judge committed reversible error by continuing the probation
violation hearing, over the juvenile's objection, without good
cause and beyond the period allowed by Juvenile Court Standing
Order 1-17, and G. L. c. 119, § 56. Third, the juvenile argues
that the judge imposed an illegal sentence when he committed him
to DYS custody until his nineteenth birthday.
As an initial matter, on our own initiative, we have first
considered whether this appeal is moot given that the juvenile's
commitment to DYS custody has ended and there is no effective
relief we can provide with respect to that sentence even though
5 The juvenile was subsequently indicted as a youthful offender on the 2018 charges, which were transferred to the Superior Court. 10
we conclude that it was illegal. An appeal from a probation
revocation does not become moot simply because the person has
finished serving his or her sentence. This is because the
revocation "may have collateral consequences" in the future
apart from the sentence itself. Commonwealth v. Kendrick, 446
Mass. 72, 73 n.1 (2006). See G. L. c. 119, § 60 (juvenile
probation violation adjudication is admissible "in subsequent
delinquency or criminal proceedings against the same person").
In addition, although it is true that we can offer no effective
relief with respect to the sentence the juvenile has already
served, the same is not true with respect to the probation
violation finding itself, which we could reverse were we to
agree (which we do not) with the juvenile's view that it rests
on insufficient evidence and unreliable hearsay.6 See Padua, 479
Mass. at 1005 (defendant has continuing interest in obtaining
relief from conviction itself even if he has completed serving
sentence). See also Commonwealth v. Pena, 462 Mass. 183, 189
(2012), and cases cited ("probation revocation may have
collateral consequences beyond term of incarceration"). For all
6 Even were we to conclude that the appeal were moot, we note that several of the juvenile's arguments regarding his sentence turn on his "aging out" of the Juvenile Court's jurisdiction or authority, and are thus particularly susceptible of evading review upon repetition in future cases. See Delaney v. Commonwealth, 415 Mass. 490, 492 (1993). 11
of these reasons, we conclude this appeal is not moot and we now
turn to the arguments raised by the parties.
1. Hearsay. The juvenile argues that the victim's
identification of him (which was introduced through the
testifying officer) was unreliable hearsay and therefore could
not, consistent with due process, be the sole basis upon which
to conclude that the juvenile was one of the assailants. See
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Commonwealth v.
Milton, 427 Mass. 18, 22 (1998). He points in particular to the
fact that the victim did not identify his assailants immediately
after the crime and that the victim's identification of the
juvenile in the photographic array rested on his previous
dealings with the juvenile rather than on seeing the juvenile
during the attack.
In assessing the juvenile's argument, we begin by noting
that this is not a case where probation revocation rested
entirely on hearsay; indeed, the principal investigating officer
testified at the hearing. Contrast Commonwealth v. Durling, 407
Mass. 108, 110 (1990) (sole evidence of probation violation was
two police reports about which probation officer had no personal
knowledge). The officer responded to the scene, observed and
questioned the victim who had shortly before been stabbed,
investigated the scene of the attack, saw the damaged car, went
to the hospital where the victim was treated, interviewed both 12
the victim and his friend, wrote a police report, and obtained a
surveillance video showing the attack. The officer was subject
to confrontation7 on all of these matters. Moreover, the
surveillance video, which would be admissible in evidence,
confirmed the attack and many of its details.
This is also not a case where the accuracy of the witness
reporting the hearsay evidence is questioned. See Commonwealth
v. Negron, 441 Mass. 685, 692 n.8 (2004) (admission of hearsay
impliedly includes "an additional implicit determination that
the witness who is reporting the hearsay . . . is doing so
accurately"). The juvenile does not question that the officer
accurately recounted the victim's statements identifying the
juvenile; indeed, any such argument would be foreclosed by the
video recording of the interview, which confirms the officer's
testimony.
Thus, the narrow question before us is only whether the
victim's identification of the juvenile bore sufficient indicia
of reliability for the judge to conclude by a preponderance of
the evidence that the juvenile participated in the attack. "The
7 The confrontation right at issue in probation violation proceedings is the due process right of confrontation described in Durling, 407 Mass. at 117-119. It is not the right of confrontation under the Sixth Amendment to the United States Constitution or under art. 12 of the Massachusetts Declaration of Rights. Commonwealth v. Wilcox, 446 Mass. 61, 67-68, 70-71 (2006). 13
[juvenile] court may rely on hearsay as evidence of a probation
violation only if the court finds in writing that the hearsay is
substantially reliable." Juvenile Court Standing Order 1-17
§ VII(b).
In written findings required by Juvenile Court Standing
Order 1-17 § VIII(c), the judge determined that the out-of-court
statements of identification were reliable because the victim
knew the perpetrators based on previous interactions with them,
knew where the perpetrators lived, was able to identify the
attackers in separate photographic arrays, the information was
internally consistent, and the victim relied on personal
knowledge in making the identifications. See Juvenile Court
Standing Order 1-17 § VII(b) (reproduced in the margin).8 The
8 Juvenile Court Standing Order 1-17 § VII(b) provides:
"The court may rely on hearsay as evidence of a probation violation only if the court finds in writing that the hearsay is substantially reliable. In determining if hearsay is substantially reliable, the court may consider, among any other relevant factors, whether that evidence
"(1) is based on personal knowledge and/or direct observation, rather than on other hearsay;
"(2) involves observations recorded close in time to the events in question;
"(3) is factually detailed, rather than generalized and conclusory;
"(4) is internally consistent; 14
judge's reasoning was well-grounded in the evidence and we agree
that it provided an ample basis upon which to conclude the
hearsay was reliable. See Commonwealth v. Nunez, 446 Mass. 54,
59 (2006). In addition to the factors highlighted by the judge,
we note that the victim's identification of the juvenile was
corroborated by the first-hand observations of his friend (who
provided the same identification immediately after the crime,
with no suggestion of coordination with the victim), was
consistent with the victim's hostile relationship with the
juvenile, and was bolstered by the juvenile's demonstrated
consciousness of guilt when he attempted to evade the police.
In addition, when assessing the reliability of the victim's
statements, we take into account that "it is a crime for a
citizen to make a false report of a crime to police officers,
see G. L. c. 269, § 13A, a factor that 'bolsters the reliability
of the report[].'" Negron, 441 Mass. at 691-692, quoting
Durling, 407 Mass. at 121. See Commonwealth v. Patton, 458
Mass. 119, 132-133 (2010) (nonexclusive list of factors derived
"(5) is corroborated by any evidence provided by the probationer;
"(6) was provided by a disinterested witness; or
"(7) was provided under circumstances that support the veracity of the source (e.g., was provided under the pains and penalties of perjury or subject to criminal penalties for providing false information)." 15
from Durling and Commonwealth v. Delaney, 36 Mass. App. Ct. 930,
932 n.4 [1994] bearing on reliability of hearsay).
2. Continuances. The juvenile argues that the probation
violation hearing was several times continued over his
objection, without good cause, in violation of Juvenile Court
Standing Order 1-17 § VI(e), was once continued for more than
fifteen days, in violation of G. L. c. 119, § 56, and that those
continuances cumulatively resulted in the hearing occurring more
than fifteen days after the juvenile was served with the
probation violation notice, in violation of Juvenile Court
Standing Order 1-17 § III(b)(iii). Although we conclude that
there was good cause for each of the continuances, we agree with
the juvenile that the continuances exceeded the deadlines
contained in Juvenile Court Standing Order 1-17, and in one
instance exceeded the time limit in G. L. c. 119, § 56.
Nonetheless, we conclude that the juvenile suffered no
cognizable prejudice from the delay.
Juvenile Court Standing Order 1-17 sets out procedures for
probation revocation proceedings in the Juvenile Court.9 Section
III(b)(iii) pertains to the scheduling of probation violation
hearings and provides:
9 The Chief Justice of the Juvenile Court Department may issue standing orders, subject to approval of the Supreme Judicial Court. G. L. c. 218, § 60. 16
"The probation violation hearing shall be scheduled to commence on the date of the pretrial hearing for the new delinquency or criminal complaint or youthful offender indictment, unless the court expressly orders an earlier hearing. The hearing shall be scheduled for a date certain no less than seven days after service on the probationer of the Notice of Violation/Hearing unless the probationer waives said seven day notice period. The hearing date shall not be later than fifteen days after service of the Notice of Violation/Hearing without the probationer's consent if he or she is held [as the juvenile in this case was] pursuant to Section V of this standing order. In any case, the hearing shall not be later than thirty days after service of the Notice of Violation/Hearing, except in extraordinary circumstances. In scheduling the pretrial hearing on the new delinquency or criminal complaint or youthful offender indictment together with the probation violation hearing, the court shall give primary consideration to the need for promptness in conducting the probation violation hearing."
Also pertinent is § VI(e) of Standing Order 1-17, which states
that "[p]robation violation hearings shall be continued only by
a judge and only for good cause shown."10
Taken together, these provisions require that (1) a
probation violation hearing be scheduled no less than seven days
after the juvenile is served with notice of the probation
violation (unless waived by the juvenile), (2) the hearing shall
occur within fifteen days after service of the notice if (as
here) the juvenile is held in custody, (3) in any event, absent
10Section VI(e) also provides that "[t]he reason of any continuance shall be stated by the judge and entered in the case docket." 17
"extraordinary circumstances," the hearing shall occur no later
than thirty days after service of the violation notice, and (4)
continuances require a showing of good cause. The parties have
not pointed us to, nor have we found, any appellate case
construing or examining the application of Standing Order 1-17.
We have also found no appellate cases construing the
provision of G. L. c. 119, § 56, that provides:
"Hearings upon cases arising under sections fifty-two to eighty-four, inclusive, [which includes probation violation proceedings under section fifty-nine], may be adjourned from time to time; provided however, that no adjournment shall exceed fifteen days at any one time against the objection of the child."
Section 53 of G. L. c. 119 states that § 56 (like other sections
of c. 119) "shall be liberally construed so that the care,
custody and discipline of the children brought before the court
shall approximate as nearly as possible that which they should
receive from their parents." G. L. c. 119, § 53. Thus,
although a judge has discretionary authority to allow
continuances, he or she is to keep this interpretive principle
in mind when assessing whether (and for how long) to grant a
continuance in particular circumstances. Regardless, § 56
imposes a bright-line limit of fifteen days for any individual
continuance, which is written in unequivocal and mandatory
language: "no adjournment shall exceed fifteen days at any one
time" (emphasis added). See Hashimi v. Kalil, 388 Mass. 607, 18
609 (1983) ("The word 'shall' is ordinarily interpreted as
having a mandatory or imperative obligation").11
We now examine these provisions with respect to each of the
procedural events in this case.
The juvenile was served with the probation violation notice
on January 22, 2018, when he was also arraigned on the new
delinquency complaint. He next appeared in court on February 8,
2018, seventeen days after the arraignment, for both a pretrial
conference on the delinquency complaint and a hearing on the
probation violation. This date was suggested by counsel for the
11Relying on the sentence of G. L. c. 119, § 56, that states that G. L. c. 276, § 35, "relative to recognizance in cases continued shall apply to cases arising under sections fifty-two to eighty-four, inclusive," the Commonwealth argues that § 56 does not apply at all to delinquency and youthful offender proceedings. General Laws c. 276, § 35, provides, in pertinent part:
"[T]he defendant . . . may recognize in a sum and with surety or sureties to the satisfaction of the court or justice, or without surety, for his appearance for . . . trial . . . . While the defendant remains committed, no adjournment shall exceed thirty days at any one time against the objection of the defendant."
For two reasons, we do not read the sentence in c. 119, § 56, as broadly as the Commonwealth. First, the Commonwealth's reading would cause the thirty-day limit on continuances contained in § 35 to supplant the fifteen-day limit in § 56, and thus render meaningless the first sentence of § 56. Second, the Commonwealth's reading ignores the limiting phrase "relative to recognizances." "We do not read a statute so as to render any of its terms meaningless or superfluous. Bynes v. School Comm. of Boston, 411 Mass. 264, 268 (1991), and cases cited." Banushi v. Dorfman, 438 Mass. 242, 245 (2002). 19
juvenile, and therefore was within the provisions of Standing
Order 1-17 § III(b)(iii) and complied with G. L. c. 119, § 56;
the juvenile raises no issue concerning it now.
The juvenile does, however, challenge the one-month
continuance of the probation violation hearing from February 8,
2018, to March 8, 2018. He contends that there was no good
cause for the continuance and, furthermore, that it violated
G. L. c. 119, § 56, and Standing Order 1-17 § III(b)(iii). We
disagree with the juvenile's contention that the judge abused
his discretion in finding good cause for this continuance, see
Commonwealth v. Jackson, 376 Mass. 790, 792 (1978)
(determination of continuance "will be disturbed only if there
was a clear abuse of discretion"), but agree that it violated
§ III(b)(iii) of the standing order and G. L. c. 119, § 56.
"In considering a request for a continuance, a trial judge
should balance the movant's need for additional time against the
possible inconvenience, increased costs, and prejudice which may
be incurred by the opposing party if the motion is granted."
Commonwealth v. Super, 431 Mass. 492, 496-497 (2000), quoting
Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973). Although
the Commonwealth's simple assertion at the February 8 hearing
that it had failed to summons any witnesses, without anything
more or further inquiry by the judge, would not constitute good
cause, see Commonwealth v. Perkins, 464 Mass. 92, 103-104 20
(2013), the hearing transcript reveals that the judge's decision
to allow the continuance did not rest on this ground. Instead,
the judge's primary reason for granting the continuance was the
filing of the juvenile's motion -- that very morning --
challenging the court's jurisdiction over him. The one-month
continuance followed from the Commonwealth's need to respond to
the motion, and from the schedule the judge set to allow both
the Commonwealth and the juvenile time to submit further
briefing on those complicated issues. See Commonwealth v.
Lester L., 445 Mass. 250, 259 (2005) (relevant inquiry with
respect to good cause is Commonwealth's reasons for
continuance). The judge was entitled to consider that, although
in other cases a continuance might result in prejudice by
extending a juvenile's detention, in this case no such prejudice
would result because the juvenile was being detained on the new
delinquency charges, not only on the probation violation. Thus,
no prejudice to the juvenile acted as a counterweight to the
Commonwealth's need for the continuance.
Although there was good cause for the one-month
continuance, it nonetheless ran afoul of the requirement in
Standing Order 1-17 § III(b)(iii) that probation violation
hearings be conducted within fifteen days of service of the
notice where (as here) the juvenile is in detention and does not
consent to the delay. It also violated G. L. c. 119, § 56's 21
prohibition against continuances of more than fifteen days at
any one time.
Turning to the one-week continuance from March 8, 2018, to
March 15, 2018, where the Commonwealth's witness was
unexpectedly unavailable due to childcare demands caused by a
large snowfall and school cancellations, we also conclude that
the judge did not abuse his discretion in finding good cause to
continue the hearing. Again, the continuance worked no
prejudice since the juvenile was being held on the delinquency
charges in addition to the probation violation. That said, the
one-week continuance meant that the hearing on the probation
violation would take place more than seven weeks after the
juvenile had been served with the probation violation notice.
This exceeded two time limits in Standing Order 1-17
§ III(b)(iii): first, the hearing was not to take place,
without the juvenile's consent, more than fifteen days after
service of the probation violation notice where (as here) the
juvenile was in detention; second, "[i]n any case, the hearing
shall not be later than thirty days after service of the Notice
of Violation/Hearing, except in extraordinary circumstances."
The Commonwealth has not argued extraordinary circumstances
here.
All that said, we conclude that none of these delays,
either individually or cumulatively, requires reversal of the 22
probation violation finding. In the related context of G. L.
c. 276, § 35, which sets time limits on continuances in adult
criminal cases, the Supreme Judicial Court has said that "[a]
continuance in violation of G. L. c. 276, § 35, does not
automatically provide the defendant with the right to have the
case against him dismissed." Commonwealth v. Ludwig, 370 Mass.
31, 34 n.1 (1976). Instead, "a continuance in excess of that
limitation triggers an examination as to whether the delay was
excusable and whether the defendant was prejudiced thereby."
Commonwealth v. Boyer, 6 Mass. App. Ct. 938, 939 (1978). Here,
as we have set out above, there was good cause for the
continuances and no prejudice to the juvenile from them. To the
extent the juvenile claims prejudice because the Commonwealth
would not have been prepared to go forward on the days at issue,
this understanding of prejudice, if accepted, would mean that no
continuance could ever be granted regardless of the
circumstances -- a proposition that is not only illogical but
one for which we have found no support.
3. Illegal sentence. The juvenile contends that
committing him to DYS custody to age nineteen was an illegal
sentence for three reasons. First, relying on G. L. c. 119,
§ 58, he contends that because he committed the probation
violation before he turned eighteen, the Juvenile Court had no
jurisdiction to impose a sentence beyond his eighteenth 23
birthday.12 Second, he argues that, even if the court had
jurisdiction to impose a sentence to age nineteen, the judge
could not do so here because the underlying suspended sentence
ended at age eighteen. Third, the juvenile argues that, should
we disagree with the latter proposition, then a constitutional
concern is raised with the knowingness of his plea. Because we
conclude that, although the court had jurisdiction, the judge
could not extend the suspended sentence, we need not reach this
last argument.
a. Jurisdiction. The Juvenile Court has jurisdiction to
adjudge delinquent "a child between 12 and 18 years of age who
commits any offense against a law of the commonwealth; provided,
however, that such offense shall not include a civil infraction,
a violation of any municipal ordinance or town by-law or a first
offense of a misdemeanor for which the punishment is a fine,
12 In pertinent part, G. L. c. 119, § 58, provides:
"If a child is adjudicated a delinquent child on a complaint, the court may place the case on file or may place the child in the care of a probation officer for such time and on such conditions as it deems appropriate or may commit him to the custody of the department of youth services, but the probationary or commitment period shall not be for a period longer than until such child attains the age of eighteen, or nineteen in the case of a child whose case is disposed of after he has attained his eighteenth birthday or age 20 in the case of a child whose case is disposed of after he has attained his nineteenth birthday." 24
imprisonment in a jail or house of correction for not more than
6 months or both such fine and imprisonment." G. L. c. 119,
§ 52, as amended by St. 2018, c. 69, § 72.13 See generally
Wallace W. v. Commonwealth, 482 Mass. 789, 792 (2019); Lazlo L.
v. Commonwealth, 482 Mass. 325, 326-335 (2019); Commonwealth v.
Cole C., 92 Mass. App. Ct. 653 (2018). The court has continuing
jurisdiction in certain circumstances beyond the date when a
child turns eighteen. As pertinent here, the Juvenile Court
"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" (emphasis added).
G. L. c. 119, § 72 (a). In essence, the juvenile argues that,
because his case was "finally adjudicated" when he admitted to
sufficient facts and was adjudged delinquent on the underlying
complaint, the continuing jurisdiction provided by § 72 (a) does
not extend to the subsequent probation violation proceeding. It
13When the underlying delinquency complaint was brought in August 2015, the Juvenile Court's jurisdiction was limited by an earlier, broader definition of "delinquent child" as "a child between seven and 18 who violates any city ordinance or town by- law or who commits any offence against a law of the commonwealth." See St. 2013, c. 84, § 7. The new definition took effect on July 12, 2018. See St. 2018, c. 69, § 232. The juvenile fell within both definitions at all relevant times. 25
follows, he argues, that the Juvenile Court lost jurisdiction
over him when he turned eighteen.
The juvenile's argument depends on his reading of the
phrase "final adjudication of [his] case[]" to mean the moment
when he was adjudged delinquent and sentenced. But as is clear
from the expansive enumerative language that immediately follows
the phrase, which includes references to appeals, probation, and
"any other proceeding arising out of the[] case[]," the
juvenile's reading is incorrect. Instead, "final adjudication"
for purposes of § 72 (a) does not occur until all proceedings
arising out of a case are concluded. It does not, as the
juvenile suggests, have the same meaning as "disposed of" as
that phrase is used in G. L. c. 119, § 58,14 which refers in that
context to the moment of initial sentencing.15,16
14 The text of § 58 is reproduced in note 12, supra.
15Our conclusion in this regard is consistent with cases finding jurisdiction over adult probation violation proceedings even after the expiration of the probationer's term of probation provided the violation occurred during the probationary term. See Commonwealth v. Aquino, 445 Mass. 446, 449 (2005); Commonwealth v. Sawicki, 369 Mass. 377, 379-380 (1975).
16Initial sentencing, as we use the phrase here, means the first sentence of commitment the juvenile receives. This could be a commitment sentence on the underlying delinquency complaint or, where a juvenile received straight probation on the underlying offense, a commitment sentence imposed upon probation revocation. 26
What remains, then, is the question whether a probation
violation proceeding "aris[es] out of" the underlying
delinquency case, and we have no hesitation in concluding that
it does. A "probation revocation proceeding is not a new
criminal prosecution." Commonwealth v. Wilcox, 446 Mass. 61, 65
(2006). Instead, it is a proceeding arising from a
probationer's alleged violation of the terms of probation
imposed as part of a sentence for an underlying conviction; in
other words, it is spawned by the sentence from which it stems.
See Commonwealth v. Holmgren, 421 Mass. 224, 227 n.1 (1995)
("revocation of probation is not punishment for commission of
any subsequent crime charged, but rather is a remedial sanction
arising from the sentence imposed for the earlier offense").
Accordingly, because the juvenile's underlying delinquency
case was pending final adjudication and the probation violation
proceeding arose from it, the Juvenile Court retained
jurisdiction over him even after he turned eighteen.
b. Imposing suspended sentence upon revocation of
probation. Once the judge found the juvenile in violation of
his probation, he had only four sentencing options:
"After the court has entered a finding that a violation of probation has occurred, the court may order any of the following dispositions set forth below, as it deems appropriate. These dispositional alternatives shall be the exclusive options available to the court. 27
. . .
"(i) Continuance of Probation. The court may decline to modify or revoke probation and, instead, issue to the probationer such admonition or instruction as it may deem appropriate.
"(ii) Termination. The court [may] terminate the probation order.
"(iii) Modification. The court may modify the conditions of probation. Such modification may include the addition of reasonable conditions and the extension of the duration of the probation order.
"(iv) Revocation. The court may order that the order of probation be revoked. If the court orders revocation, it shall state the reasons therefor in writing."
Juvenile Court Standing Order 1-17 § VIII(d).
Here, the judge decided that revocation was appropriate.
Once he made that determination, he was required to impose the
original suspended sentence. Holmgren, 421 Mass. at 228. See,
e.g., Commonwealth v. Eldred, 480 Mass. 90, 102 n.8 (2018) ("A
suspended sentence, however, limits the judge's options should
there be a violation of probation after a suspended sentence has
been imposed, because, under . . . Holmgren, [supra], 'when
probation is revoked, the original suspended sentence must be
imposed'"); Commonwealth v. Cole, 468 Mass. 294, 304 (2014)
("Where the judge determines that the probation violation
warrants the revocation of probation, the judge must impose the
original suspended sentence"). "Upon revocation of a probation
order, any sentence or commitment that was imposed for the 28
offense involved, the execution of which was suspended, shall be
ordered . . . ." Juvenile Court Standing Order 1-17 § VIII(e).
Straightforward application of this rule here, however,
leads to the undesirable result of imposing an illusory
sentence. Because the juvenile's original suspended sentence
terminated his DYS commitment when he turned eighteen, there was
no practical purpose in imposing that sentence after the
juvenile had already turned eighteen. Presumably recognizing
this, the judge's solution was to extend the juvenile's DYS
commitment to age nineteen. Although the judge could have
imposed such a committed sentence upon finding a probation
violation had the juvenile initially been sentenced to straight
probation, he could not reach this result by imposing the
suspended sentence.
It seems odd, indeed, that there should be no effective
remedy for a juvenile whose probation violation is serious
enough to warrant revocation of his probation simply because he
violated probation shortly before turning eighteen -- especially
since that juvenile received the benefit of a suspended sentence
on the underlying delinquency complaint in the first place, and
for the reasons we have set out above, the court had continuing
jurisdiction over the juvenile even after he turned eighteen.
But we have found no authority, nor has the Commonwealth cited
any, for the proposition that the judge could do anything other 29
than impose the original sentence. Indeed, to the contrary, we
have been instructed that, upon probation revocation, the
original suspended sentence must be imposed, regardless of
whether that "is a desirable rule or not." Holmgren, 421 Mass.
at 228. This is "[b]ecause the revocation of probation is not
punishment for commission of any subsequent crime charged, but
rather is a remedial sanction arising from the sentence imposed
for the earlier offense . . . ." Id. at 227 n.1.
At oral argument, the Commonwealth suggested that the
"spirit" of the underlying sentence was to commit the juvenile
to DYS custody to the judge's maximum authority, i.e., age
eighteen. Therefore, the Commonwealth reasons, when the judge
imposed the suspended sentence to age nineteen (his maximum
authority at that point), he was merely effectuating the same
"spirit" of the original sentence, not really extending it.
Although we recognize the broad equitable powers of the Juvenile
Court, and the salutary purposes and reasons behind committing
the juvenile to DYS custody because of the probation violation,
we think it is a slippery slope indeed to look to the spirit of
a sentence rather than its plain terms. This is not a case of
merely interpreting the original sentencing judge's intent in
the face of a less-than-explicit sentencing structure. See
Commonwealth v. Bruzzese, 437 Mass. 606, 615 (2002). The 30
underlying sentence here stated that the juvenile was being
committed to DYS until age eighteen.
This is not to say that the judge, despite finding the
juvenile had violated his probation, was without power to do
anything at all. He could have modified the terms of the
juvenile's probation, including extending it and/or adding other
terms. See G. L. c. 119, § 72 (a); Juvenile Court Standing
Order 1-17 § VIII(d)(iii). And, as we stated above, had the
juvenile originally been sentenced to straight probation, the
judge could "impose a sentence, commitment, or other disposition
as provided by law," Juvenile Court Standing Order 1-17
§ VIII(f), including commitment to the juvenile's nineteenth
birthday, G. L. c. 119, §§ 58 & 72. See Bruzzese, 437 Mass. at
617-618 ("If a defendant's straight probation is revoked,
whether it be on a single charge or on multiple charges, he is
subject to sentencing on those charges in essentially the same
light that existed at the time straight probation was originally
imposed"). But he could not extend the original suspended
sentence to age nineteen, and the sentence must accordingly be
vacated.
The problem presented here is a result of the Juvenile
Court's common practice of crafting sentences to terminate at
age eighteen, which seems to act as a convenient shorthand to
indicate that the judge wishes to impose a sentence concurrent 31
with the full extent of the court's initial jurisdiction over a
juvenile and the judge's initial sentencing authority. The
Juvenile Court may wish to study and consider whether there are
other ways to write sentences that will not result in the
problem we encounter here.
Conclusion. For the reasons set out above, so much of the
order as finds a probation violation and revokes the juvenile's
probation is affirmed; so much of the order as extends the
juvenile's commitment to DYS custody to age nineteen is vacated,
and the juvenile's original sentence shall be imposed nunc pro
tunc.17
So ordered.
17We realize that, given the juvenile's age, the corrected sentence will have no practical effect.