In re D.K., Juvenile

2012 VT 23, 47 A.3d 347, 191 Vt. 328, 2012 Vt. LEXIS 20

• Court: Supreme Court of Vermont
• Decided: March 23, 2012
• Docket: 2011-076
• Status: Published

Opinions

Johnson, J.

¶ 1. The issue in this case is whether the State may prosecute an adult defendant for crimes alleged to have occurred when he was a juvenile between the ages of ten and fourteen years. The prosecution is late, not through any fault of the State, because the alleged victims did not come forward until defendant was eighteen years of age and beyond the jurisdiction of the family division. The State, recognizing this jurisdictional difficulty, tried to file the information in the criminal division. The criminal division transferred the case to the family division because it found there was no criminal jurisdiction to adjudicate even the most serious of the offenses without first filing the matter in the family division. The family division, however, determined it was without jurisdiction to entertain the charges because defendant had reached eighteen years of age. Accordingly, it dismissed all of the charges against defendant.

¶2. On appeal, the State argues that the family division erred by dismissing the more serious felony charges because: (1) a recent legislative enactment addressing what it calls a “gap” in the jurisdictional provisions of the statutes is a mere clarification demonstrating that the Legislature had always intended that adult defendants be subject to prosecution for serious crimes committed when they were juveniles; and (2) even if the new amendment does not clarify the statutes and fill the gap, there is jurisdiction in the criminal division because that division has always had jurisdiction over all serious felonies. We conclude that: (1) the Legislature’s recent enactment did not clarify existing law but rather established entirely new law that cannot be applied retroactively to this case; therefore, to the extent that the Legislature has filled the “gap,” it has done so only prospectively; and (2) the statutory scheme applicable at the time of the offenses plainly did not allow either the family or criminal division to exercise its jurisdiction over an adult defendant accused of offenses committed as a juvenile under the age of fourteen. Accordingly, we affirm the family division’s order dismissing all charges in this case.

¶ 3. In July 2010, the State filed an information alleging that when the eighteen-year-old defendant was between the ages of eleven and thirteen he sexually assaulted, through mouth-to-genital contact, one younger male cousin on three occasions, and that when he was between the ages of twelve and fourteen he subjected another younger male cousin to lewd and lascivious acts on four occasions. Before arraignment or a probable cause determination, the criminal division ordered the parties to submit memoranda on the question of whether it had initial jurisdiction to consider the charges. In an October 2010 decision, the criminal division removed the four lewd-and-lascivious counts to the family division and ordered that the three sexual-assault counts be redocketed in the family division as a delinquency petition.

¶4. Shortly thereafter, defendant filed a motion in the family division to dismiss all of the charges. The State acknowledged that the family division’s jurisdiction was limited to juveniles under the age of eighteen, but nevertheless argued that the court should accept jurisdiction over the lewd and lascivious conduct charges and transfer the sexual assault charges to the criminal division. In February 2011, the family division issued a decision concluding that: (1) it lacked jurisdiction over the lewd and lascivious conduct charges because defendant had reached his eighteenth birthday; and (2) for the same reason, it lacked jurisdiction to transfer the sexual assault charges to the criminal division, given the statutory-requirement that such charges against juveniles be filed in the first instance in the family division.

¶ 5. The State appeals the dismissal of only the sexual assault counts, arguing first that the Legislature’s recent clarification of the statutes solves the jurisdictional issue and demonstrates that the Legislature had always intended defendants to be subject to criminal prosecution for crimes committed while they were children, even if those offenses were not reported or discovered until after the juvenile reached adulthood. We conclude that this argument is unavailing.

¶ 6. During the 2011 legislative session, after the family division filed its decision in this case, the Legislature enacted a statute, codified as 33 V.S.A. § 5204a, creating jurisdiction and detailed procedures for the family division in the first instance (and potentially the criminal division upon transfer from the family division) to adjudicate charges against adult defendants for offenses allegedly committed when they were juveniles. 2011, No. 16, § 2. The newly created statute provides that a proceeding may commence in the family division against an adult defendant if the petition alleges that the defendant committed one of certain specified serious crimes, no juvenile petition had ever been filed based on the alleged conduct, and the statute of limitations had not yet tolled on the alleged offense. 33 V.S.A. § 5204a. If certain criteria are met, and upon consideration of detailed factors set forth in the statute, the family division may do one of three things: (1) transfer the case to the criminal division in the interest of justice and public safety; (2) order the defendant, if under twenty-three years of age, to be treated as a youthful offender; or (3) dismiss the petition. Id. § 5204a(b)-(c). Among the statute’s numerous criteria and factors for the court’s consideration are those that take into account the differences in culpability and treatment for offenses committed by juveniles as opposed to adults.¹

¶ 7. Before the enactment of § 5204a, the statutory scheme did not provide jurisdiction or procedures for adjudicating charges against adult defendants based on offenses committed when they were under the age of fourteen. Nevertheless, the first section of the act creating § 5204a states, in part, as follows: “This act clarifies, as the general assembly had always intended, that under the proper circumstances and for serious offenses, the state may bring charges against a person 18 years of age or older who committed a crime before turning 18.” 2011, No. 16, § 1. The State relies upon this statement as evidence that the old statutory scheme, which the State concedes applies to defendant, allows the family division to infer that it may overlook its most basic and explicit statutory limitation to exercise jurisdiction over this eighteen-year-old defendant and transfer this case to the criminal division. The State’s position does not withstand scrutiny.

¶ 8. Although “[t]he general presumption is that legislation is intended to apply only prospectively,” the presumption may be rebutted when the Legislature enacts a clarification of a misapplied or misinterpreted statute, thereby revealing its true meaning. State v. Kenvin, 2011 VT 123, ¶ 24, 191 Vt. 30, 38 A.3d 26. It is true that the Legislature in this instance took pains to describe its actions as a clarification of its prior intent, and while the Legislature’s statement of its intent is always of interest to this Court, our review must be based on the substantive analysis of the statutory amendment. If the amendment has created new law, the law may not be applied retroactively, and the old law may not be validly interpreted as implying what the new law requires. In these circumstances, any statement of legislative intent that is contrary to what the Legislature has actually done is not controlling and must be disregarded.

¶ 9. Here, the Legislature’s attempt to clarify the law in 2011 after defendant was charged created an entirely new jurisdictional statute providing procedures for adjudicating delinquency petitions involving adult defendants where none existed before. The new statute is plainly inconsistent with the prior law and cannot be considered merely a clarification of what a previous Legislature had intended the statute to mean.

¶ 10. The State argues, however, that even if the Legislature’s 2011 amendment cannot be considered a clarification of the law as it existed at the time the instant charges were brought, the law at that time still plainly provided jurisdiction in the criminal division to adjudicate those charges. According to the State, although the adult defendant may have been beyond the family division’s jurisdiction, the criminal division has general jurisdiction “to try, render judgment, and pass sentence in prosecutions for felonies,” 4 V.S.A. § 32(a), without regard to the age of the defendant. Moreover, the State notes that prosecutions for sexual assault of child victims are permitted until “the earlier of the date the victim attains the age of 24 or 10 years from the date the offense is reported,” 13 V.S.A. § 4501(c), neither of which was reached in this case before defendant was charged. Thus, in the State’s view, the criminal division had continuing jurisdiction to adjudicate the charges it brought against defendant. This position, the State maintains, is further supported by the Legislature’s important public policy goals of protecting minors from sexual abuse and rehabilitating sex offenders.

¶ 11. None of these arguments is consistent with the statutory scheme in place at the time the charges were brought in this case, which provided the family division with exclusive original jurisdiction to adjudicate charges alleging delinquent acts committed by defendants under the age of fourteen. As a general matter, “[notwithstanding any other provision of law to the contrary, the family division shall have exclusive jurisdiction to hear and dispose of . . . [a]ll juvenile proceedings filed pursuant to chapters 51, 52, and 53 of Title 33 . . . whether the matter originated in the criminal or family division of the superior court.” 4 V.S.A. § 33(8) (emphasis added). More specifically, the family division “shall have exclusive jurisdiction over all proceedings concerning a child who is or who is alleged to be a delinquent child . . . under the authority of the juvenile judicial proceedings chapters, except as otherwise provided in such chapters.” 33 V.S.A. § 5103(a) (emphasis added). Moreover, “[t]he provisions of the juvenile judicial proceedings chapters shall be construed as superseding the provisions of the criminal law of this state to the extent the same are inconsistent with this chapter.” 33 V.S.A. § 5101(b).

¶ 12. The family division’s jurisdiction over delinquency petitions does not last indefinitely, however. Apart from youthful offender provisions not applicable here, “jurisdiction over a child shall not be extended beyond the child’s 18th birthday.” Id. § 5103(c). In short, the family division’s jurisdiction over juvenile delinquency proceedings is exclusive and takes precedence over any inconsistent criminal law provisions, but normally ends when the juvenile reaches eighteen years of age.

¶ 13. The juvenile proceedings act generally defines “[cjhild” to include “[a]n individual who has been alleged to have committed or has committed an act of delinquency after becoming 10 years of age and prior to becoming 18 years of age.” 33 V.S.A. § 5102(2)(C). Hence, whether an individual is deemed to be a child subject to the jurisdiction of the family division depends on the offender’s age at the time the delinquent act was committed, not at the time that the offender was charged with the delinquent act. Relative to the instant circumstances, the definition of “child” adds the caveat that an individual alleged to have committed any of certain specified acts between the ages of ten and fourteen “may be treated as an adult,” but only “as provided therein” Id. § 5102(2)(C)(i) (emphasis added).

¶ 14. The juvenile transfer statutes determine when a juvenile may be treated as an adult in criminal court. Delinquency proceedings may be commenced, depending on the circumstances, by the filing of a delinquency petition in the family division or by transfer from another court, including the criminal division. 33 V.S.A. § 5201(a). Proceedings concerning a child alleged to have committed certain serious offenses specified in 33 V.S.A. § 5204(a) between the ages of fourteen and eighteen “shall originate” in the criminal or civil division, provided that “jurisdiction may be transferred [to the family division] in accordance with this chapter.” 33 V.S.A. § 5201(c). The statute pertaining to transfers to the family division from other courts provides that: (1) cases involving individuals who committed offenses not set forth in § 5204(a), including lewd and lascivious conduct, when they were under the age of sixteen “shall” be transferred to the family division; and (2) cases involving individuals who committed any offense between the ages of sixteen and eighteen or one of the offenses specified in § 5204(a), including sexual assault, between the ages of fourteen and sixteen “may” be transferred to the family division. 33 V.S.A. § 5203(a)-(b). The prosecutor may commence a case in either the family division or the criminal division when charging juveniles between sixteen and eighteen with offenses not listed under § 5204(a). See id. § 5203(c).

¶ 15. These transfer statutes, while explicitly providing in detail when charges against juvenile offenders may or must be filed in the criminal division — depending on the offense charged and the age of the offender — notably do not provide for filing charges in the criminal division in cases where the defendant was between the ages of ten and fourteen at the time the delinquent acts were committed, even if the act is an offense listed under § 5204(a). In marked contrast, § 5204(a) provides that the family division “may” transfer to the criminal division delinquency petitions involving individuals alleged to have committed the serious offenses specified therein, including sexual assault, between the ages of ten and fourteen. Upon a motion in the family division to transfer such a case to the criminal division, § 5204(d) sets forth seven factors for the court’s consideration following a hearing.² Those factors are grounded in the recognition that the acts were committed by a child under the age of fourteen.

¶ 16. Read together, these statutory provisions plainly and unambiguously demonstrate that the family division had exclusive original jurisdiction over all of the charges in this case — not only, as the State recognizes, the lewd and lascivious conduct counts for acts allegedly committed in part after defendant reached the age of fourteen, but also the sexual assault counts for acts allegedly committed when defendant was between the ages of eleven and thirteen. Moreover, the family division’s exclusive original jurisdiction terminated upon defendant having reached eighteen years of age. In effect, the time period that the Legislature allowed for prosecution of the charged offenses that defendant allegedly committed as a child has expired. Indeed, the State acknowledges that the family division properly dismissed the State’s delinquency petition for lack of subject matter jurisdiction.

¶ 17. We find no support for the State’s position that, even assuming the family division properly dismissed the delinquency petition under the applicable law, the criminal division retains jurisdiction in this case by virtue of its general jurisdiction over criminal offenses such as sexual assault. This position is contrary not only to the plain meaning of the applicable statutory scheme, but also the relevant case law. See Commonwealth v. A Juvenile, 554 N.E.2d 1212, 1213 (Mass. 1990) (superseded by statute) (holding that similar statutory scheme did not allow criminal court to exercise jurisdiction over charges against juvenile who committed delinquent acts when he was twelve or thirteen years old but was not apprehended and prosecuted until he was nineteen years old); State v. Dellinger, 468 S.E.2d 218, 220-21 (N.C. 1996) (interpreting similar statutory scheme under similar circumstances and concluding that both plain meaning of statutes and legislative policy underlying those statutes gave juvenile court exclusive original jurisdiction pending transfer to criminal court). As the North Carolina Supreme Court stated in Dellinger, the criminal court “cannot obtain jurisdiction by the mere passage of time nor can the mere passage of time transform a juvenile offense into an adult felony.” Dellinger, 468 S.E.2d at 220.

¶ 18. The State argues, however, that the Legislature must have contemplated jurisdiction in the criminal division under these circumstances because, in its view, the alternative of allowing the charged delinquent acts to go unprosecuted thwarts the legislative policies of protecting children and rehabilitating sex offenders. We disagree. The State’s position is directly contrary to the explicit language of the statutory scheme in place at the time the charges were brought, and that language is not susceptible to a claim that it is irrational or inconsistent with the underlying statutory intent. Indeed, the State’s position is undercut by the Legislature’s enactment of the new amendment, which requires that delinquency petitions against adult defendants be commenced in the family division, thereby allowing the juvenile court to assess the underlying charges in a transfer hearing after applying essentially the same criteria contained in § 5204(d). 33 V.S.A. § 5204a(b).³ Even under the new amendment, prosecution in criminal court for juvenile offenders is still a matter of discretion for the family division to exercise in the first instance. The fact that defendant could have been transferred by the family division to the criminal division under the statutes in effect at the time of the alleged offenses does not solve the jurisdictional problem. This Court cannot exercise on appeal the family division’s discretion to transfer a juvenile to adult court, or presume that transfer would have been ordered in this case.

¶ 19. Although defendant was eighteen years old when the State brought charges against him, this case concerns delinquent acts, the most serious of which occurred when defendant was between eleven and thirteen years of age. Juvenile proceedings are aimed primarily at protecting and rehabilitating youth in trouble. See 33 V.S.A. § 5101(a) (setting forth purposes underlying juvenile proceedings provisions). The legislative policy expressly seeks to rehabilitate juvenile offenders while removing “the taint of criminality and the consequences of criminal behavior.” 33 V.S.A. § 5101(a)(2). That policy necessarily takes into account that a child who commits an offense between the ages of ten and fourteen is still a child and that his culpability must be viewed in light of his age. Thus, the policy is not furthered by automatically subjecting to criminal prosecution adult defendants who committed delinquent acts when they were children under the age of fourteen. See State v. Gifford, 808 A.2d 1, 3 (N.H. 2002) (stating that to permit criminal prosecution of twenty-two-year-old defendant charged with delinquent acts committed when he was thirteen years old “would render meaningless the protections of [the criteria set forth in] the criminal responsibility statute” for juvenile offenders); Dellinger, 468 S.E.2d at 221 (stating that safeguards in juvenile proceedings “evince conceptual distinctions between the purpose of juvenile proceedings and that of adult criminal prosecutions”).

¶ 20. Nor can it be considered absurd or irrational, in light of the relevant policy considerations, for the Legislature to have established a statutory scheme precluding the criminal prosecution of adult defendants accused of having committed delinquent acts when they were between the ages of ten and fourteen — even if that meant that they could not be prosecuted in the family division because of age-related jurisdictional limitations. While this Court construes statutes under the assumption that the Legislature did not intend to create genuinely absurd results, see Braun v. Bd. of Dental Exam’rs, 167 Vt. 110, 117, 702 A.2d 124, 128 (1997), we must be vigilant not to employ this rule of construction simply because we consider one result preferable to another. This is particularly true here, where the State’s position, in effect, asks us to create criminal jurisdiction where it did not exist under the plain language of the applicable statutory scheme.

¶ 21. Notwithstanding the statement of legislative purpose in the 2011 amendment’s preamble, it is impossible at this juncture to know what a prior Legislature intended by not providing jurisdiction in either the family or criminal division for the State to prosecute adults who committed delinquent acts as children under the age of fourteen. It could have been an oversight or it could have been an intentional policy decision. See A Juvenile, 554 N.E.2d at 1213 (recognizing that legislation not providing for prosecution of adult defendant charged with delinquent acts committed before fourteen years of age could be unintended “gap” in statute, but concluding that “[t]he Legislature is the proper forum in which to raise this concern”). But given the specificity of the original statutory scheme as to when the criminal or family division may exercise its jurisdiction to adjudicate charges against juveniles — depending on the offense charged and the age of the defendant at the time the offense was committed — it is just as likely that the Legislature intended not to allow criminal prosecution of adult defendants who committed delinquent acts between the ages of ten and fourteen, even if it meant that they would be beyond the family division’s jurisdiction. See In re Coleman, 459 N.Y.S.2d 711, 715 (Fam. Ct. 1983) (dismissing delinquency petition concerning adult defendant who committed charged acts as juvenile, and noting that gap in statute not providing for prosecution of adult defendants who committed delinquent acts when under age of sixteen was either “an oversight” or “more likely a brief eleven year change in legislative policy toward prosecution of persons under sixteen charged with certain acts”).

¶ 22. In any event, we will not create jurisdiction where it did not exist to cover this perceived “gap,” which has since been addressed by the Legislature. Given the applicable law and the circumstances of this case, neither the family nor criminal division had jurisdiction to adjudicate the State’s charges alleging that the adult defendant committed three counts of sexual assault when he was a child between the ages of eleven and thirteen. Accordingly, the family division acted properly in dismissing these charges, along with the lewd and lascivious conduct charges.

¶ 23. The dissent identifies the issue before us as “what should be done with adults who are alleged to have committed felonies when still juveniles,” post, ¶ 31, and indicates it “would much prefer” that the criminal division adjudicate this matter “rather than letting a calendar decide the outcome,” post, ¶ 42. Apparently, the dissent’s preference is based on two past cases in which juveniles between the ages of fourteen and sixteen committed egregious crimes. As the dissent acknowledges, however, the Legislature responded to those instances of juvenile crime by amending Vermont’s juvenile justice laws. Indeed, in this case we construe those very laws, which unequivocally demonstrate that jurisdiction does not exist in either the family or criminal division to prosecute an adult defendant for crimes committed when he was under the age of fourteen. This Court’s role is to determine legislative intent by construing the relevant law, not to provide our opinion on what should be done with adults who are alleged to have committed felonies when still juveniles. That is the Legislature’s prerogative and they have exercised it.

Affirmed.

1 For example, §5204a(b)(3) provides that the family division may consider the following factors in determining whether public safety and the interests of justice require a transfer to the criminal division:

(A) The maturity of the defendant as determined by consideration of his or her age; home; environment; emotional, psychological, and physical maturity; and relationship with and adjustment to school and the community.

(B) The extent and nature of the defendant’s prior criminal record and record of delinquency.

(C) The nature of past treatment efforts and the nature of the defendant’s response to them.

(D) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.

(E) The nature of any personal injuries resulting from or intended to be caused by the alleged act.

(F) Whether the protection of the community would be best served by transferring jurisdiction from the family division to the criminal division of the superior court.

2 Subsection 5204(d) of Title 33 provides as follows:

In making its determination as required under subsection (c) of this section, the court may considei1, among other matters:

(1) The maturity of the child as determined by consideration of his or her age, home, environment; emotional, psychological and physical maturity; and relationship with and adjustment to school and the community.

(2) The extent and nature of the child’s prior record of delinquency.

(3) The nature of past treatment efforts and the nature of the child’s response to them.

(4) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.

(5) The nature of any personal injuries resulting from or intended to be caused by the alleged act.

(6) The prospects for rehabilitation of the child by use of procedures, services, and facilities available through juvenile proceedings.

(7) Whether the protection of the community would be better served by transferring jurisdiction from the juvenile court to the criminal division of the superior court.

3 The only factor that is present in § 5204(d) but not § 5204a(b)(3) concerns amenability to rehabilitation and is located in § 5204a(b)(2)(A)(ii) as a factor to be considered in determining whether the youthful offender program would be appropriate for the adult defendant who is charged with a delinquent act committed as a child.