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Introduction
The following is a synopsis of some of the important appellate
decisions rendered in the past year that bear on the practice
of juvenile delinquency law. It is important to note that this
is by no means a comprehensive review of the last year's decisional
law in criminal cases. Rather, this compendium is an idiosyncratic
compilation of cases that the writer believes bear on issues that
are seen with some frequency in the practice of delinquency law.
As has been emphasized before, the practice of delinquency law
is criminal law. There is no substitute for regular review of
the advance sheets to stay abreast of the decisional law.
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Probation
As in years past, probation violations continue to be one of
the main roads to a DYS commitment. Several decisions, discussed
below, offer some assistance when client's are charged with a
probation violation. See, Commonwealth v. McDonald, 50 Mass. App.
Ct. 220 (2000); Commonwealth v. Emmanuel E., 51 Mass. App. Ct.
451 (2001). Of course, the best defense to a probation violation
remains winning at trial and avoiding probation altogether. Attorneys
who work in the Boston Juvenile Court should be aware that when
a client who is supervised by one of the outlying courts (Dorchester
or West Roxbury for example) is believed to be in violation of
his/her probation, the supervising probation officer sends a "Return
of Supervision/Probation" form to the BJC probation officer.
Upon receipt of this form, the BJC probation officer sends out
the notice of violation. The return of supervision form contains
the supervising probation officer's recommendations for arraignment
(hold or release) and for disposition. Counsel should always request
discovery of this form, as well as any other probation records,
including the probation officer's running record of case contacts.
A sample motion for obtaining probation records follows these
materials. The decisions in Gagnon v. Scarpelli, 411 U.S. 778,
786 (1973) and Commonwealth v. Maggio, 414 Mass. 193, 197 (1993)
provide that a probationer is entitled to receive this discovery.
In the BJC the probation officer who handles the case in the
courtroom often recommends a harsher disposition than recommended
by the supervising probation officer. In this circumstance, the
supervising probation officer should be subpoenaed to the violation
hearing to offer testimony on disposition or in mitigation of
the violation. The probationer's rights to put on such evidence
is guaranteed by Morrissey v. Brewer, 408 U.S. 471, 488 (1972)
and Gagnon, supra, 411 U.S. at 786. See also, Commonwealth v.
Smith, 38 Mass. App. Ct. 324, 327 (1995).
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MBTA
The MBTA continues to be a trouble spot for juveniles. Recent
organizing efforts have brought light to bear on some of the T's
abusive arrest practices. These efforts and last summer's public
hearings held by the Black Legislative Caucus, which contributed
to dismantling the MBTA so-called "anti-crime unit,"
appear to have helped rein in some of the T's worst practices.
Nonetheless, unnecessary and unlawful arrests continue. Following
these materials is a Motion To Dismiss and supporting Memorandum
of Law for use when a client is charged with trespassing on T
property. The basic argument is that the trespass law is void
for vagueness as applied to arrests of persons lawfully on T property
who are not interfering with another person's use of the property.
See, Papachristou v. City of Jacksonville, 405 U.S. 156, 163-164
(1972); Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90-91
(1965); and, Commonwealth v. Carpenter, 325 Mass. 519, 521 (1950).
Please note, however, that this argument may also be raised as
a motion for a required finding. See, Commonwealth v. Chou, 433
Mass. 229, 237-238 (2001).
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Prior Delinquency Convictions-Enhanced Penalties
In two decisions, the SJC partially eroded the protection offered
by the Juvenile Court, ruling that, in the circumstances of the
particular cases, prior delinquency adjudications could be treated
as convictions to enhance later sentences. Commonwealth v. Connor
C, 432 Mass. 635 (2000); Commonwealth v. Valiton, 432 Mass. 647
(2000). The Court did, however, emphasize that the policy of the
Commonwealth remains to treat, rather than punish, juveniles and
that delinquency proceedings are not criminal proceedings.
In Connor C., a juvenile who had once been adjudicated delinquent
on a complaint charging illegal possession of a firearm, G.L.
c. 269 § 10(a), was indicted as a youthful offender for illegal
possession of a firearm, subsequent offense. G.L. c. 269 §
10(d). The district court judge allowed a motion to dismiss the
indictment reasoning that an adjudication of delinquency on a
complaint charging illegal possession of a firearm is not a conviction
within the meaning of 269 § 10(d). The SJC granted the Commonwealth's
application for direct appellate review, vacated the dismissal
of the indictment and remanded the case for further proceedings.
In holding that the juvenile could be indicted as a subsequent
offender under c. 269 § 10(d), the Court considered the interrelationship
of G.L. c. 119 § 54, which authorizes the indictment of some
juveniles as youthful offenders, c. 269 § 10, which prohibits
illegal weapons possession, and c. 119 § 58 which defines
dispositions in delinquency cases. Section 58 of c. 119 provides
for mandatory periods of confinement in a DYS facility of six
months for a first adjudication of delinquency for a violation
of c. 269 § 10(a) and twelve months for a subsequent violation
of § 10(a). Under c. 269 § 10(d) a person convicted
of a second violation of § 10(a) may be sentenced to state
prison for five to seven years and to seven to ten years for a
third conviction.
The Court reasoned that the 1996 amendments to c. 119 were "addressed
primarily to those children who commit violent or gun-related
acts." 432 Mass. at 637-638. The amendments allowed a juvenile
judge to sentence juveniles indicted under § 54 as adults
and required mandatory terms of confinement in DYS facilities
for juveniles adjudicated delinquent on complaints charging firearm
offenses. Id. The 1996 amendments were intended to "reduce
or eliminate certain protections previously available to all juvenile
offenders in an effort to address growing concern about violent
crimes committed by juveniles." 432 Mass. at 641, quoting,
Commonwealth v. Clint C., 430 Mass. 219, 227-228 (1999). Accordingly,
the Court concluded that the apparently conflicting provisions
of c. 119 and c. 269 must be construed consistently to further
the legislative intent. The legislative intent can be advanced
only if adjudications of delinquency on a complaint brought under
c. 269 § 10 are treated as a conviction when a juvenile is
indicted under c. 119 § 54 for a subsequent violation of
c. 269 § 10. The Court noted that the legislative determination
that some children who are "found to imperil the public safety,"
should be sentenced to lengthy periods of incarceration would
be frustrated if an adjudication of delinquency on a complaint
for violating c. 269 § 10 was not treated as a conviction
for purposes of § 10(d). 432 Mass. at 642.
The Court also rejected the argument that the specific sentencing
provisions in the seventh and eighth paragraphs of c. 119 §
58, which establish mandatory minimum sentences for juvenile's
adjudicated delinquent for violations of c. 269 § 10 (a),
(c), or (d), govern the disposition of all children ("delinquent
children" and "youthful offenders") who violate
§ 10(d). 432 Mass. 643-646. The Court noted that construing
§ 58 to apply to all children would eliminate the option
of sentencing a child convicted on an indictment charging a violation
of c. 269 § 10 to adult prison and that result would be contrary
to the intent of the 1996 amendments. Further, § 58 as written
applies only to children "adjudicated delinquent" and
makes no mention of youthful offenders. Therefor, the court concluded
that § 58 did not limit the juvenile court's sentencing options
for youthful offenders. 432 Mass. 645-646.
In the concluding paragraphs of the Connor C. decision, the Court
emphasized that the holding "is a narrow one, limited to
these specific statutory provisions." 432 Mass. at 646. It
wrote that it, "adhere[d] to our long standing jurisprudence
that an 'adjudication' that a child has violated a law generally
is not a 'conviction' of a crime. [Citation omitted.] It remains
the law that the goal of our juvenile system of justice is to
act in the best interests of children by encouraging and helping
them to become law-abiding and productive members of society,
and not to label and treat them as criminals." 432 Mass.
at 646 (citations omitted). The 1996 amendments did not "eviscerate
the longstanding principle that the treatment of children who
offend our laws are not criminal proceedings." 432 Mass.
at 641 (citation omitted). The Court reiterated that, "[s]ections
fifty-two to sixty-three [of chapter 119], inclusive, 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,
and that, as far as practicable, they shall be treated, not as
criminals, but as children in need of aid, encouragement and guidance."
G.L. c. 119 § 53. See also, 432 Mass. at 642 & n. 9.
In Commonwealth v. Valiton, 432 Mass. 647 (2000) the Court held
that an adult defendant who, as a juvenile was adjudicated delinquent
on a complaint charging OUI under G.L. c. 90 § 24, and sentenced
to a period of probation which included counseling and evaluation
at an alcohol treatment program, G.L. c. 90 §§ 24 (1)(a)(1)
and 24D, could be subjected to the second offender provisions
of the § 24. The Court reached this result in reliance on
the language of § 24, which requires increased punishment
if the defendant has been previously "convicted or assigned"
to a treatment program. Because the defendant had been "assigned"
to a program previously, he was subject to enhanced punishment
as a second offender. 432 Mass. at 650 - 653. Nonetheless, the
Court agreed, however, that the prior adjudication was not a conviction.
432 Mass. at 651, n. 4.
In United States v. Silva, 133 F.Supp.2d 104 (D. Mass. 2001),
the U.S. District Court considered whether prior adjudications
on complaints charging delinquency offenses could support a request
that a defendant be detained by reason of two or more prior convictions
for crimes of violence. See, 18 U.S.C. § 3142(f)(1)(D). Relying
on the SJC's analysis in Connor C, which, as noted above, acknowledged
the remedial nature of the juvenile justice system, the District
Court concluded that the prior delinquency adjudications were
not convictions for purposes of the federal detention statute.
133 F. Supp. at 114-115.
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New Trial, Ineffective Assistance of Counsel
The decision in Commonwealth v. Wheeler, 52 Mass. App. Ct. 631
(2001) concerned whether the defendant, who had been adjudicated
a delinquent on a complaint charging statutory rape should be
granted a new trial when, twenty five years later, he lost his
job as a police officer in the town of Franklin due to amendments
to G.L. c. 140 § 131 which made him ineligible for renewal
of his license to carry a firearm. Although the Appeals Court
recognized that the amendment to c. 140 § 131 "appear[ed]
to work a harsh result for a youthful transgression" it found
no legal error in the denial of the new trial motion. 52 Mass.
App. Ct. at ___.
The defendant sought a new trial alleging that his trial counsel
labored under a conflict of interest and performed inadequate
pretrial preparation and postconviction representation. In support
of his motion, the defendant filed only his own affidavit. The
trial attorney and the defendant's mother and father, who hired
the attorney, had all died in the intervening twenty five years;
the trial judge had retired. While recognizing the Rule 30 allows
a defendant to bring a motion for a new trial at any time, the
Appeals Court nonetheless relied upon principles of regularity
in proceedings and finality to uphold the denial of the motion.
52 Mass. App. Ct. at ___. See, Commonwealth v. Lopez, 426 Mass.
657, 661-665 (2998); Commonwealth v. Grant, 426 Mass. 667, 671
(1998) and Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 49-50
(1997). "The fact that mere passage of time does not invalidate
a new trial motion does not mean that the passage of time is irrelevant
to its consideration. 'The desirability of finality in the adjudication
of cases and the Commonwealth's interest in the fair and efficient
administration of justice are factors to be considered along with
the ever-present concern that justice not miscarry for the defendant.'"
52 Mass. App. Ct. at ___, quoting, Commonwealth v. Curtis, 417
Mass. 619 (1998). Further, the court wrote that "[t]he presumption
of regularity and the principle of finality are particularly applicable
when, as here, adverse consequences appear, especially adverse
consequences not contemplated or considered possible at the time
of the proceeding." The burden is on the moving party to
"present some articulable reason which the motion judge deems
a credible indicator that the presumptively proper trial proceeding
was constitutionally defective or created a manifest injustice,
above and beyond credulity straining contentions." 52 Mass.
App. Ct. at ___. In other words, defendants' affidavits are inherently
self-serving and suspect. To be successful, new trial motions,
particularly those filed long after trial, must be supported by
some evidence beyond the defendant's word. Here, the defendant's
affidavit did not present a credible factual showing.
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