COMMONWEALTH VS. LEOPOLD L., a juvenile.
No. 18-P-920.
Appeals Court of Massachusetts
January 8, 2020
Wolohojian, J. (with Blake & Englander, JJ.)
Suffolk. October 2, 2019. – January 8, 2020.
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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 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 rеvoke the juvenile‘s probation, could impose only the original suspended
Background. In August 2015, a complaint was brought charging the juvenile with delinquency by reason of unarmed robbery,
On January 22, 2018, not long before he was to turn eighteen, a new delinquency complaint charged the juvenile with having committed
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 bаil. See Juvenile Court Standing Order 1-17 § V(c)
(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 hеaring. 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.
On February 12, 2018, the juvenile filed an emergency petition for relief with the Supreme Judicial Court under
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
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
officer conducted a short interview in
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
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
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
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
we conclude that it was illegal. An appeal from a probation revocation does not become moot simply because the pеrson 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
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
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
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
[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
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 thе 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
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
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:
“The probation violation hearing shall be scheduled to commence
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
“extraordinary circumstances,” thе 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
“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
(“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
juvenile, and therefore was within the provisions of Standing
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
“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 (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 sсhedule 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
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
All that said, we conclude that none of these delays, either individually or cumulatively, requires reversal of the probation violation finding. In the related context of
The juvenile contends that committing him to DYS custody to age nineteen was an illegal sentence for three reasons. First, relying on
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, imprisonment in a jail or house of correction for not more than 6 months or both such fine and imprisonment.”
“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).
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
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
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.
. . .
“(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.”
Here, the judge decided that revocation was appropriate. Once he made that determination, he was required to impose the original
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 juvenilе 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 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.
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
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 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.
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.