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<v ->SJC-13496, Commonwealth v. a Juvenile.</v>

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<v ->[Chief Justice Budd] Okay, Attorney Renaud.</v>

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<v ->Feel very short in here.</v>

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Thank you.

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Excuse me.

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May it please the court, Suzanne Renaud for the juvenile.

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Your Honors, to start with,

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I just wanna make one change from what I said

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in the primary brief, and that is the relief

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that the juvenile is seeking at this time,

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and it's caused by the passage of time since April

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when that was originally filed, is actually asking

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for a Department of Corrections sentence

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that would be suggested

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by the advisory sentencing guidelines

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of zero to 24 months at this point,

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and again it's simply because so much time has passed.

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He's had good time credit.

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He's already served two and a half years just about

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of the sentence,

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and for him to be put in a different setting,

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I think would probably be more disruptive than anything,

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and so that is why that's the relief that's sought,

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and tangential to that,

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I would ask that if this court agrees,

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that that would be the appropriate outcome,

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to issue, if you could, an immediate order

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having the juvenile court enter that order on his behalf,

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because at this point, any more time spent would have

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potentially an irreparable harm on him,

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even if you issue a decision later.

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But obviously, we do wanna talk about the issue

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that this court raised, and that is what is the review,

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what can be the review, what is the possibility

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of anybody looking at a juvenile sentence?

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And there's clearly a lack of clarity.

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This court expressed that.

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<v ->It was a lawful sentence, right?</v>

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<v ->It is a lawful sentence.</v>

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Well, it's lawful insofar as it fits under Section 58.

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<v ->Right, so the judge has three options, right?</v>

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And they picked option A, to your client's detriment,

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you know, to be sentenced as an adult.

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Sentencing this person as an adult

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for the offenses charged include a state prison alternative.

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<v Atty. Renaud>Yes, Your Honor.</v>

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<v ->Right, and the judge imposed state prison alternatives.</v>

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<v ->The situation that I did raise in my opening brief was</v>

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that there is a focus in her decision on punishment,

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and that the law has suggested very strongly

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that there has to be a rehabilitative option

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that would be part of the focus

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of what the length of the sentence is.

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So the illegality isn't because of the setting necessarily.

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In this particular case for this particular juvenile,

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the illegality, if you agree on that point,

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would be because there are statutory precepts

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that say that there has to be a prioritization of that-

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<v ->Didn't Judge Gershengorn and say something like,</v>

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"Yeah, I've been a juvenile judge for a long time.

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I kind of know this stuff."

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<v ->She does know, of course,</v>

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and I don't deny that she has a better sense

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of all of the literature than I do,

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but at the same time, there has to be,

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particularly when you're dealing with this issue

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of length of a sentence, there has to be an articulation.

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I wanna just go back for one moment.

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In the best practices, the opening,

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I think on page three of it says that there has to be

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an interest in frugality, in other words,

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how can you serve the ends using the least harsh means?

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<v ->We have as best practices, we have advisory sentencing.</v>

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We don't have mandatory sentencing guidelines, right?

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<v ->Of course, except that I bring that up</v>

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because that is reflective of the trend in the law

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and in the statutes that all say

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that when you are looking at a juvenile

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under Section 1 of chapter 119 and section 53 of 119,

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and the way Connor C says it, you don't ignore

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those other things, to treat children like children,

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to prioritize juvenile sentencing,

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to make that juvenile rehabilitated

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and a better person at the end,

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and part of what goes into that is that consideration

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of where they're going to go,

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and for how long they're going to go there,

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and if you just completely leave that out,

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it is clearly an abuse of discretion.

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But I would also say that there would be a potential error

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of law that arises if those particular considerations are

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not explicitly referenced, and in contrast,

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the issue of punishment is overly focused upon

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over and over and over again.

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I should also mention, I mean, there's another error

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of law in there, which is she said that this juvenile,

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he committed violent crimes.

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Nothing he has is a crime of violence as defined by the law,

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and that they increased in severity over time.

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She included in that taking into account things

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that she herself had found had no merit.

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<v ->The carjacking wasn't a crime of violence?</v>

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<v ->She was talking about the probation, the crimes</v>

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that were committed allegedly while he was on probation.

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I'm not talking about the underlying offenses themselves,

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because clearly those are

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in a different category altogether,

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which obviously can come into play with all of this,

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which is why at the end of the day,

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when we're talking about this juvenile,

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never, I mean, I know that he did ask at one point

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for DYS sentence, but the request has actually been

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for some kind of adult sentence.

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There is a recognition that by violating probation on these-

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<v ->Can I just go back to your challenge</v>

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to the judge's finding that there's been an escalation?

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So the first violation of probation was

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for failing to report to probation, right?

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And he got a sort of a slap on the back of the hand,

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and said, "Hey, fix it."

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And the second one was, I thought assault and battery

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on a police officer, resisting arrest,

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interference with a police officer,

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disturbing the peace, isn't that-

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<v ->Well, there are two things, Your Honor.</v>

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<v J. Wendlandt>An escalation from failing to report?</v>

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<v ->She actually considered the first violation.</v>

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She said, I don't believe, if I look at her words,

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she didn't say it was the probation violation

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that escalated, she said his crimes have increased

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in severity, and for that-

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<v ->And what are you reading into that?</v>

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<v ->I'm sorry, Your Honor, if I may,</v>

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she says he has 10 open charges, and

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number 17, 10 open charges including possession

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of a firearm, and then number 18 says

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the defendant's crimes have grown in seriousness

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over a relatively short time.

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So she actually was not saying

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that the probation violations increased in severity.

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She said that the crimes

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that she was saying that he had committed

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while on probation had increased in severity.

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<v ->And she actually disagreed with the Commonwealth,</v>

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and found that he wasn't responsible

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for the possession of a firearm as well, right?

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<v ->Well, which is part of the reason why I, you know, again,</v>

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if we're doing this on abuse of discretion,

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you have to honestly say, well, you know,

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this is a tested offense that she found that

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by the preponderance of the evidence didn't meet

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the standard, and I think Your Honors know now

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that's been dismissed.

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<v ->As Justice Wendlandt pointed out,</v>

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that's when he got the slap on the wrist.

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<v ->That's when he got the slap on the wrist, but yet in her-</v>

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<v ->That's a judge using her discretion to say,</v>

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"Even on a preponderance, you don't have enough

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of constructive possession.

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I'm not gonna take into account the firearm charge."

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<v ->But yet in August, and then again in January of 2023</v>

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when she wrote her written decisions,

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and this is after I brought it to her attention

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in the motion for new trial,

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she ignored the fact that she had determined

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that those criminal offenses,

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after testing them with a two day hearing,

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did not meet the standard of proof

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of being something that he actually committed.

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They've been dismissed,

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<v ->Remind me, what happened to those charges?</v>

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Were they ever litigated?

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<v ->They were, there was a motion to suppress,</v>

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the motion to suppress was allowed,

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and the Commonwealth nolle prosequi.

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So those are all been disposed at this point,

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but again, you know, back in,

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by the time that she decided in February of 2022

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that there was no preponderance of evidence

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to support his constructive possession, even using hearsay,

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you know, in that hearing, then to go in her decision

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and to use that as a basis to say,

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"Well, we should punish this person very harshly

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because he has these crimes."

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I think that that is,

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it's a bit perplexing, really, about that.

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And again, I'm not saying that there aren't crimes

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that he is picking up and getting accused of

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and having an indictment brought against him,

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and those all things that can come into the equation.

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But what it doesn't tell you,

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and there is literally no place in either

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of her written findings

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that tell you this is why did she pick three years?

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There is no reason why she found,

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that she said three years is the appropriate amount.

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When she decided this originally in July, she was basing it

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on a couple of misapprehensions of what she-

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<v ->Is that the standard, though?</v>

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I mean, we've sentenced a lot of people,

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and you know, there's nothing, there's a house,

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because the baseline or the guidelines was two years

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in the house corrections, correct?

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<v ->The guidelines for him, and again she's misinformed,</v>

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would've been zero to 24 months.

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<v ->24 months, right?</v>

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So she says, "Well, that's the guidelines,

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that's the heartland, but you know what?

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this guy deserves another year."

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<v ->But she didn't say that,</v>

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and she didn't give her reasoning.

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<v ->Right, but I just don't get how we get</v>

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to abuse of discretion for something

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which is a three year sentence, frankly,

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given the escalated conduct we have in this case.

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<v ->But I think, well, there are a couple of reasons.</v>

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Number one, it's not escalating conduct.

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<v ->It seems like he's out of control,</v>

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so basically, he just gets outta DYS,

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and he does this really incredible crime,

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and then he goes on probation,

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and he just keeps on picking up new charges,

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and she says, "Listen, at the end of the day,

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he's now a menace to society, essentially," right?

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<v ->But he's a juvenile, Your Honor,</v>

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and everything that we're talking about,

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he did when he was 16 years old,

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and that's where all of this comes out of,

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where yes, you've sentenced people,

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but when you're talking about juvenile sentencing,

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the entire focus has to be like,

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what exactly is going to be beneficial to this person,

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and what is going to be unduly harmful?

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Again, sentencing him to an adult sentence makes sense

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for exactly the reasons why you just stated,

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but when you're dealing with juveniles,

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length and location matter too.

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It's not just getting an adult sentence.

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<v ->Can a juvenile judge take into account</v>

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the public safety concerns?

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<v ->Of course they can, but I think that the other part</v>

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of a juvenile judge taking into account public safety is

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that you are also trying to rehabilitate the person,

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because you don't want them to be a recidivist,

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and so if you are looking at that, at least give reasons,

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which she didn't give any reasoning.

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<v J. Georges>Does she have to?</v>

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<v ->I believe she does, Your Honor.</v>

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<v ->Where's your support for that?</v>

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I guess that's why I keep going back to it,

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because I probably didn't sentence

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as much as my Superior Court brethren,

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but if I have a range of appropriate sentence range,

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00:11:56.220 --> 00:11:57.990
and I pick a range,

255
00:11:57.990 --> 00:12:00.270
I don't have to say why I am picking a range.

256
00:12:00.270 --> 00:12:01.740
I don't wanna have to say that.

257
00:12:01.740 --> 00:12:04.980
I mean, there are no, it's not prescribed.

258
00:12:04.980 --> 00:12:09.074
<v ->Well, Your Honor, while that might be true,</v>

259
00:12:09.074 --> 00:12:10.830
there are two responses to that.

260
00:12:10.830 --> 00:12:12.450
Number one, I think for a juvenile,

261
00:12:12.450 --> 00:12:14.760
especially with the knowledge in this case that she had

262
00:12:14.760 --> 00:12:15.720
that he was going to be going

263
00:12:15.720 --> 00:12:18.360
to Souza-Baranowski has to factor into that.

264
00:12:18.360 --> 00:12:21.030
But the second part of it is, is that when you're dealing

265
00:12:21.030 --> 00:12:23.700
with abuse of discretion, it's also based on errors of law.

266
00:12:23.700 --> 00:12:26.400
If she is calling parole a service,

267
00:12:26.400 --> 00:12:29.070
if she is saying originally that, "I'm punishing him

268
00:12:29.070 --> 00:12:32.040
for carjacking," which is what she did I think on page 28

269
00:12:32.040 --> 00:12:34.770
of July transcript, if she's saying

270
00:12:34.770 --> 00:12:37.080
that these are violent crimes, which they're not,

271
00:12:37.080 --> 00:12:41.296
if she is making a number of mistakes of law,

272
00:12:41.296 --> 00:12:44.099
and she was also originally basing this on saying

273
00:12:44.099 --> 00:12:47.220
and believing that the assault and battery carried

274
00:12:47.220 --> 00:12:49.080
a maximum five-year penalty,

275
00:12:49.080 --> 00:12:51.120
if she's doing all of those things,

276
00:12:51.120 --> 00:12:53.103
and those are all errors of law,

277
00:12:54.330 --> 00:12:56.430
now that we've erased those errors of law,

278
00:12:57.330 --> 00:12:58.620
it's an abuse of discretion

279
00:12:58.620 --> 00:13:00.990
if the original discretion was premised

280
00:13:00.990 --> 00:13:02.160
on those errors of law,

281
00:13:02.160 --> 00:13:05.190
and there's no other reason to understand

282
00:13:05.190 --> 00:13:06.990
where she came up with the three years.

283
00:13:06.990 --> 00:13:09.467
<v ->Can you help me on this analysis on,</v>

284
00:13:09.467 --> 00:13:12.180
these are all violations of probation, right?

285
00:13:12.180 --> 00:13:13.260
<v Atty. Renaud>Yes, Your Honor.</v>

286
00:13:13.260 --> 00:13:14.093
<v ->In the sentence,</v>

287
00:13:14.093 --> 00:13:16.620
the index sentence is the carjacking probation?

288
00:13:16.620 --> 00:13:17.880
<v Atty. Renaud>Not any longer, Your Honor.</v>

289
00:13:17.880 --> 00:13:21.884
<v ->No, no, so he was sentenced</v>

290
00:13:21.884 --> 00:13:25.620
by Judge Gershengorn with five years probation

291
00:13:25.620 --> 00:13:27.840
from and after on the carjacking, right?

292
00:13:27.840 --> 00:13:30.150
<v ->No, Your Honor, it was on counts two and three.</v>

293
00:13:30.150 --> 00:13:32.283
<v ->Which were assault on an elderly man.</v>

294
00:13:33.285 --> 00:13:35.160
<v ->Okay, but I'm not-</v>

295
00:13:35.160 --> 00:13:36.150
<v ->They're level four offenses</v>

296
00:13:36.150 --> 00:13:37.530
rather than level six, Your Honor.

297
00:13:37.530 --> 00:13:39.644
<v ->This is my, I'm not being precise.</v>

298
00:13:39.644 --> 00:13:40.477
<v Atty. Renaud>Okay.</v>

299
00:13:40.477 --> 00:13:42.360
<v ->It was the 2019 offenses.</v>

300
00:13:42.360 --> 00:13:43.193
<v Atty. Renaud>Yes.</v>

301
00:13:43.193 --> 00:13:46.710
<v ->And he served on the carjacking and then from and after.</v>

302
00:13:46.710 --> 00:13:47.786
<v Atty. Renaud>Yes.</v>

303
00:13:47.786 --> 00:13:49.170
<v ->Then we're dealing</v>

304
00:13:49.170 --> 00:13:51.300
with two different violations of probation,

305
00:13:51.300 --> 00:13:53.610
one he doesn't really violate,

306
00:13:53.610 --> 00:13:55.530
and then the second one is when she comes down

307
00:13:55.530 --> 00:13:57.000
hard on the thing.

308
00:13:57.000 --> 00:13:57.953
<v Atty. Renaud>Yes, Your Honor.</v>

309
00:13:57.953 --> 00:14:00.573
<v ->When we look at a violation of probation,</v>

310
00:14:02.190 --> 00:14:06.690
is it that the judge is sentencing on the charges

311
00:14:06.690 --> 00:14:10.263
they put them on probation for, or the new offense?

312
00:14:11.190 --> 00:14:13.470
<v ->Well, you can't sentence for the new offense.</v>

313
00:14:13.470 --> 00:14:16.680
<v ->Right, so your sentencing, my understanding was,</v>

314
00:14:16.680 --> 00:14:19.680
and the sometimes it gets lost, right?

315
00:14:19.680 --> 00:14:23.460
Because it depends on how bad the new offense is or how not,

316
00:14:23.460 --> 00:14:24.687
but you're basically saying,

317
00:14:24.687 --> 00:14:27.697
and I think the case law says something like,

318
00:14:27.697 --> 00:14:31.590
"You were given the grace of probation to start,

319
00:14:31.590 --> 00:14:33.030
you then violated probation,

320
00:14:33.030 --> 00:14:36.710
and now I'm going to sentence you for that crime,

321
00:14:39.090 --> 00:14:42.690
i.e., the carjacking, the armed assault to rob, et cetera."

322
00:14:42.690 --> 00:14:44.438
That's the paradigm we're, we're dealing with, right?

323
00:14:44.438 --> 00:14:45.271
<v Atty. Renaud>Yes, Your Honor.</v>

324
00:14:45.271 --> 00:14:46.104
<v ->Okay.</v>

325
00:14:46.104 --> 00:14:49.050
<v ->Yes, and so, but even within that context, I think-</v>

326
00:14:49.050 --> 00:14:51.240
<v ->But when she says it was a serious offense,</v>

327
00:14:51.240 --> 00:14:54.750
she's referring to the carjacking, armed assault to rob,

328
00:14:54.750 --> 00:14:56.700
and AB on an elderly person?

329
00:14:56.700 --> 00:14:59.280
<v ->In number 18, what she's calling</v>

330
00:14:59.280 --> 00:15:03.390
a serious offense is the gun offense

331
00:15:03.390 --> 00:15:08.390
and the resisting arrest, A and B on a police officer,

332
00:15:09.720 --> 00:15:11.070
which are misdemeanors,

333
00:15:11.070 --> 00:15:13.950
and I just would point you to, especially, you know,

334
00:15:13.950 --> 00:15:16.135
I haven't had a chance yet to discuss the proper mode

335
00:15:16.135 --> 00:15:19.230
of review, especially if you were to look at this de novo,

336
00:15:19.230 --> 00:15:23.010
if you read that police report, you know, it was-

337
00:15:23.010 --> 00:15:25.110
<v ->But before we lose you on that last point,</v>

338
00:15:25.110 --> 00:15:27.120
which I know is probably, and if I have,

339
00:15:27.120 --> 00:15:28.920
if I could ask this question, Chief,

340
00:15:29.910 --> 00:15:31.770
don't we have to rewrite the statute

341
00:15:31.770 --> 00:15:34.290
to come up with this appellate division remedy?

342
00:15:34.290 --> 00:15:36.630
<v ->I don't believe so, Your Honor, and I think the reason is</v>

343
00:15:36.630 --> 00:15:40.110
because, you know, in Wallace W, for example, you were able

344
00:15:40.110 --> 00:15:42.090
to look at a statute and say there's a hole in the statute,

345
00:15:42.090 --> 00:15:45.690
instead of waiting for the legislature to act, we can act.

346
00:15:45.690 --> 00:15:48.510
And part of the reasons you can act in this particular case

347
00:15:48.510 --> 00:15:50.700
where you might not be able to with another statute is

348
00:15:50.700 --> 00:15:53.040
because it affects the judiciary,

349
00:15:53.040 --> 00:15:55.650
and how the judiciary functions, really.

350
00:15:55.650 --> 00:15:59.430
And so that makes this a whole different animal,

351
00:15:59.430 --> 00:16:01.950
that you don't have to rewrite the statute,

352
00:16:01.950 --> 00:16:05.490
that you can act on your own volition.

353
00:16:05.490 --> 00:16:07.890
You can create this court or this branch.

354
00:16:07.890 --> 00:16:09.883
<v ->Our supervisory authority would give us the ability</v>

355
00:16:09.883 --> 00:16:14.883
to create this review, and add a juvenile court judge

356
00:16:15.625 --> 00:16:17.580
and the Superior Court judge and reconfigure it?

357
00:16:17.580 --> 00:16:19.650
<v ->That is my position on this, and I think, you know,</v>

358
00:16:19.650 --> 00:16:20.970
the other thing I would point out,

359
00:16:20.970 --> 00:16:22.110
I know the trial courts did this,

360
00:16:22.110 --> 00:16:25.110
but the created drug court, so yes, creating-

361
00:16:25.110 --> 00:16:27.180
<v ->Seems awful statutory to me,</v>

362
00:16:27.180 --> 00:16:31.290
especially when your client has all the rights

363
00:16:31.290 --> 00:16:34.500
that somebody would in the criminal context,

364
00:16:34.500 --> 00:16:35.790
and one of the rights

365
00:16:35.790 --> 00:16:39.660
in the criminal context is the appellate division.

366
00:16:39.660 --> 00:16:40.530
<v ->He doesn't have all the,</v>

367
00:16:40.530 --> 00:16:41.940
Your Honor, he doesn't have all the rights

368
00:16:41.940 --> 00:16:43.110
that are in the criminal context.

369
00:16:43.110 --> 00:16:44.820
You know, as I was preparing for this,

370
00:16:44.820 --> 00:16:49.820
I was going through literally every section of chapter 119,

371
00:16:50.280 --> 00:16:55.280
and you can see how the legislature defined juvenile courts.

372
00:16:56.250 --> 00:16:57.750
It said, "We're going to treat this part

373
00:16:57.750 --> 00:16:58.770
akin to Superior Court.

374
00:16:58.770 --> 00:17:00.630
We're gonna treat this part akin to district court.

375
00:17:00.630 --> 00:17:03.085
We're going to give the juveniles," for example,

376
00:17:03.085 --> 00:17:06.176
only have the right to appeal because 119,

377
00:17:06.176 --> 00:17:09.600
I believe it's 55A and 56.

378
00:17:09.600 --> 00:17:13.770
Adults, on the other hand, it's 278 section 28.

379
00:17:13.770 --> 00:17:15.060
That's where it comes from.

380
00:17:15.060 --> 00:17:19.200
There is no automatic right for every juvenile,

381
00:17:19.200 --> 00:17:23.940
even one that's getting an adult sentence,

382
00:17:23.940 --> 00:17:26.430
to be treated exactly as an adult.

383
00:17:26.430 --> 00:17:27.990
I mean, and going back with that,

384
00:17:27.990 --> 00:17:29.910
if a juvenile is being treated as an adult

385
00:17:29.910 --> 00:17:33.030
and getting a DOC house of correction sentence,

386
00:17:33.030 --> 00:17:36.840
that juvenile is certainly not, you know, in any position

387
00:17:36.840 --> 00:17:40.680
to, at least at the moment, to appeal that sentence.

388
00:17:40.680 --> 00:17:45.680
And so, and under juvenile law, the way we've framed it,

389
00:17:45.810 --> 00:17:47.250
Conner C and other places have said

390
00:17:47.250 --> 00:17:49.723
that any adult sentence is the harshest sentence

391
00:17:49.723 --> 00:17:50.640
a juvenile you can get.

392
00:17:50.640 --> 00:17:53.490
<v ->Someone sentenced to two and a half in district court</v>

393
00:17:53.490 --> 00:17:54.390
or BMC and two and a half

394
00:17:54.390 --> 00:17:57.600
from and after doesn't get any review.

395
00:17:57.600 --> 00:17:59.160
<v ->They don't, Your Honor, but I think, again,</v>

396
00:17:59.160 --> 00:18:01.710
it's different for juveniles, because the way that we look

397
00:18:01.710 --> 00:18:06.710
at adult sentencing, and the way that we approach adults is

398
00:18:06.930 --> 00:18:09.120
to say that the harshest sentence for an adult,

399
00:18:09.120 --> 00:18:10.710
because you're all going to end up going

400
00:18:10.710 --> 00:18:14.070
to some kind of adult incarcerative setting,

401
00:18:14.070 --> 00:18:18.120
is that it has to do with length, and so you know,

402
00:18:18.120 --> 00:18:20.010
we have to make a cutoff, and generally,

403
00:18:20.010 --> 00:18:22.020
our cutoff is going to be Department of Corrections,

404
00:18:22.020 --> 00:18:23.910
even though those can be as low as a year,

405
00:18:23.910 --> 00:18:27.060
you know, because on average, it's not going to be.

406
00:18:27.060 --> 00:18:28.890
On the other hand, with juveniles,

407
00:18:28.890 --> 00:18:31.170
the harsh sentences have two components.

408
00:18:31.170 --> 00:18:35.430
One is the setting, which is an adult setting,

409
00:18:35.430 --> 00:18:36.690
and the other is the length,

410
00:18:36.690 --> 00:18:40.350
and so that automatically puts 'em in a different position.

411
00:18:40.350 --> 00:18:42.930
The other piece of this that I've obviously mentioned

412
00:18:42.930 --> 00:18:45.888
a number of times is where the juveniles are going to go.

413
00:18:45.888 --> 00:18:47.820
If you have an 18-year-old juvenile

414
00:18:47.820 --> 00:18:49.530
who can go into the Department of Corrections

415
00:18:49.530 --> 00:18:52.560
and they are classified to Souza-Baranowski,

416
00:18:52.560 --> 00:18:55.237
you have to now take that back and say,

417
00:18:55.237 --> 00:18:58.860
"How does that fit in with the rest of our juvenile scheme?"

418
00:18:58.860 --> 00:19:00.480
Because what if you wanted a juvenile

419
00:19:00.480 --> 00:19:03.660
to go be sentenced on two counts for five years?

420
00:19:03.660 --> 00:19:05.449
Could you manage to do that by doing

421
00:19:05.449 --> 00:19:08.670
back-to-back house correction sentences

422
00:19:08.670 --> 00:19:11.430
because you were conscious of the fact

423
00:19:11.430 --> 00:19:12.630
of where they were going to go,

424
00:19:12.630 --> 00:19:16.110
and how much more harm for a developing mind

425
00:19:16.110 --> 00:19:18.030
that that might end up creating?

426
00:19:18.030 --> 00:19:20.220
So it really is very different,

427
00:19:20.220 --> 00:19:23.260
and I don't see that juveniles, even juveniles

428
00:19:24.270 --> 00:19:28.290
who are in an adult realm, because of the offenses,

429
00:19:28.290 --> 00:19:31.516
because of whatever they've done, are treated

430
00:19:31.516 --> 00:19:34.050
exactly the same as adults.

431
00:19:34.050 --> 00:19:35.100
We treat them differently.

432
00:19:35.100 --> 00:19:36.630
We put them in a different category.

433
00:19:36.630 --> 00:19:39.210
We put them in a, use a word that I've used a number

434
00:19:39.210 --> 00:19:44.040
of times, a liminal space where we have to have recognition

435
00:19:44.040 --> 00:19:46.863
that they still are children in need of services.

436
00:19:47.850 --> 00:19:52.380
And the law does recognize that to a certain degree,

437
00:19:52.380 --> 00:19:57.000
but 28A through 28C just simply doesn't apply.

438
00:19:57.000 --> 00:19:59.370
There's never been any kind of overlap.

439
00:19:59.370 --> 00:20:02.700
There's nothing in chapter 119

440
00:20:02.700 --> 00:20:05.220
that in any way references that explicitly,

441
00:20:05.220 --> 00:20:08.610
and every other time we treat juveniles like adults,

442
00:20:08.610 --> 00:20:10.470
we reference it explicitly

443
00:20:10.470 --> 00:20:13.470
that we are going to treat them with an adult sentence,

444
00:20:13.470 --> 00:20:15.627
or we're going to treat them like they're in Superior Court,

445
00:20:15.627 --> 00:20:20.310
and that doesn't have that piece to it, and it should,

446
00:20:20.310 --> 00:20:22.890
and this court has the power to do that,

447
00:20:22.890 --> 00:20:27.750
and to create all of the different components to it

448
00:20:27.750 --> 00:20:29.910
that were suggested by the amicus brief,

449
00:20:29.910 --> 00:20:33.270
I think that that it is a really wise way of going about it.

450
00:20:33.270 --> 00:20:35.490
I do wanna mention just very briefly,

451
00:20:35.490 --> 00:20:38.520
if you were to do this, there is one procedural problem,

452
00:20:38.520 --> 00:20:39.360
which is that I know

453
00:20:39.360 --> 00:20:43.500
that the clerk has trouble accessing juvenile dockets,

454
00:20:43.500 --> 00:20:45.780
so the clerk doesn't even know

455
00:20:45.780 --> 00:20:48.180
when these sentence appeals have been filed,

456
00:20:48.180 --> 00:20:49.020
which is one of the reasons

457
00:20:49.020 --> 00:20:52.890
why this juvenile's case has been prolonged for so long.

458
00:20:52.890 --> 00:20:54.660
It's my recollection, although I could be wrong,

459
00:20:54.660 --> 00:20:56.490
that she didn't know about it until I called her up

460
00:20:56.490 --> 00:20:58.597
to ask her if it had been scheduled, and she's like,

461
00:20:58.597 --> 00:21:01.380
"Oh, I didn't even know that that was,

462
00:21:01.380 --> 00:21:03.390
that he had filed anything."

463
00:21:03.390 --> 00:21:07.950
So when you are in a position as a juvenile, you know,

464
00:21:07.950 --> 00:21:10.230
that they're not even getting the attention,

465
00:21:10.230 --> 00:21:11.730
and they're just falling through the cracks,

466
00:21:11.730 --> 00:21:15.030
and again, every day that you spend in that adult setting,

467
00:21:15.030 --> 00:21:16.860
if they're not supposed to be there,

468
00:21:16.860 --> 00:21:18.720
can have a big impact on them,

469
00:21:18.720 --> 00:21:21.390
then that is just simply something that shouldn't stand,

470
00:21:21.390 --> 00:21:23.610
and shouldn't have to wait for the legislature to act

471
00:21:23.610 --> 00:21:26.723
when you have the power to do that.

472
00:21:26.723 --> 00:21:27.600
<v ->[Chief Justice Budd] Okay, thank you.</v>

473
00:21:27.600 --> 00:21:28.850
<v ->Thank you, Your Honors.</v>

474
00:21:35.888 --> 00:21:38.910
<v ->[Chief Justice Budd] Okay, Attorney Palumbo.</v>

475
00:21:38.910 --> 00:21:41.220
<v ->Good morning, Your Honors, may it please the court,</v>

476
00:21:41.220 --> 00:21:44.250
Karen Palumbo on behalf of the Commonwealth.

477
00:21:44.250 --> 00:21:48.090
This court usually only reviews a sentence for error of law,

478
00:21:48.090 --> 00:21:49.650
and not usually for abuse

479
00:21:49.650 --> 00:21:51.810
of the trial judge's wide discretion.

480
00:21:51.810 --> 00:21:54.240
I would suggest in this case that there was neither,

481
00:21:54.240 --> 00:21:55.470
there was no error of law,

482
00:21:55.470 --> 00:21:57.320
and there was no abuse of discretion.

483
00:21:59.220 --> 00:22:03.120
The judge laid out numerous factors in her findings.

484
00:22:03.120 --> 00:22:07.740
<v ->She had 25 factors, and I think in factor 22 and 25,</v>

485
00:22:07.740 --> 00:22:11.370
she did explain why she had wasn't doing

486
00:22:11.370 --> 00:22:12.690
a house of correction sentence.

487
00:22:12.690 --> 00:22:15.900
<v ->Yes, because this individual, as she stated,</v>

488
00:22:15.900 --> 00:22:19.140
has already taken advantage of every single opportunity

489
00:22:19.140 --> 00:22:21.570
offered by the juvenile justice system.

490
00:22:21.570 --> 00:22:25.770
And because the legislature decided in 1996

491
00:22:25.770 --> 00:22:30.770
that some individuals, juveniles, need more,

492
00:22:33.810 --> 00:22:36.000
who are not amenable to rehabilitation,

493
00:22:36.000 --> 00:22:37.740
can be treated differently.

494
00:22:37.740 --> 00:22:40.770
So the Commonwealth can proceed by indictment

495
00:22:40.770 --> 00:22:44.910
through a grand jury if the youthful offender,

496
00:22:44.910 --> 00:22:47.430
and this is a youthful offender, this is not a juvenile.

497
00:22:47.430 --> 00:22:50.130
If the youthful offender chooses to have a jury trial,

498
00:22:50.130 --> 00:22:52.170
it's a 12 person jury trial.

499
00:22:52.170 --> 00:22:55.380
The proceedings under 60A are open to the public,

500
00:22:55.380 --> 00:22:56.760
and the records open to the public,

501
00:22:56.760 --> 00:22:58.290
which is a big difference

502
00:22:58.290 --> 00:23:01.710
between a juvenile proceeding and a youthful offender.

503
00:23:01.710 --> 00:23:06.273
Also the individual is subject to adult sentences.

504
00:23:07.530 --> 00:23:10.230
So we're not just in the juvenile setting,

505
00:23:10.230 --> 00:23:12.660
but this judge has given this individual

506
00:23:12.660 --> 00:23:15.123
on this particular case every opportunity.

507
00:23:16.440 --> 00:23:19.800
He has at every turn shown that he cannot abide

508
00:23:19.800 --> 00:23:21.390
by the terms of probation.

509
00:23:21.390 --> 00:23:24.000
He's repeatedly violated probation,

510
00:23:24.000 --> 00:23:26.880
and had been returned to DYS custody.

511
00:23:26.880 --> 00:23:30.030
He cut his GPS monitor off on two occasions,

512
00:23:30.030 --> 00:23:32.730
and I would disagree with counsel.

513
00:23:32.730 --> 00:23:36.330
His behavior and his crimes have grown in intensity.

514
00:23:36.330 --> 00:23:38.430
Not only did he assault an elderly man,

515
00:23:38.430 --> 00:23:41.190
but he escaped from a DYS facility

516
00:23:41.190 --> 00:23:42.888
before committing that crime.

517
00:23:42.888 --> 00:23:45.300
I would suggest that there are sufficient-

518
00:23:45.300 --> 00:23:49.830
<v ->But the violations of probation, one is for an offense</v>

519
00:23:49.830 --> 00:23:53.220
he didn't commit, the possession of the firearm,

520
00:23:53.220 --> 00:23:55.170
based on constructive possession,

521
00:23:55.170 --> 00:23:58.620
and the second one was the ABPO, correct?

522
00:23:59.704 --> 00:24:00.537
<v Atty. Palumbo>Correct.</v>

523
00:24:00.537 --> 00:24:02.220
<v ->And she finds that these are escalated?</v>

524
00:24:02.220 --> 00:24:04.266
How have these escalated from,

525
00:24:04.266 --> 00:24:07.380
they're certainly not escalated from the carjacking.

526
00:24:07.380 --> 00:24:08.880
<v ->Well, in general, they're escalating.</v>

527
00:24:08.880 --> 00:24:10.410
An assault and battery on a police officer,

528
00:24:10.410 --> 00:24:13.020
I would suggest, is escalating.

529
00:24:13.020 --> 00:24:15.269
<v J. Gaziano>From a carjacking?</v>

530
00:24:15.269 --> 00:24:16.102
<v ->Well, he's still assaulting,</v>

531
00:24:16.102 --> 00:24:18.660
he's assaulting a public official, so I would say,

532
00:24:18.660 --> 00:24:20.280
although you don't get much worse

533
00:24:20.280 --> 00:24:22.035
than assaulting an 80-year-old man.

534
00:24:22.035 --> 00:24:23.785
<v J. Gaziano>Right, I understand.</v>

535
00:24:25.140 --> 00:24:29.217
<v ->Counsel, what do you say to the notion</v>

536
00:24:30.510 --> 00:24:33.210
that sometimes when you say too much,

537
00:24:33.210 --> 00:24:35.760
you expose the abuse of discretion?

538
00:24:35.760 --> 00:24:38.610
And so counsel made the point that, okay,

539
00:24:38.610 --> 00:24:40.530
she laid out all these factors,

540
00:24:40.530 --> 00:24:43.860
but if she's wrong on some of the factors that went

541
00:24:43.860 --> 00:24:46.830
into the consideration,

542
00:24:46.830 --> 00:24:49.050
that you've got an error of law there,

543
00:24:49.050 --> 00:24:51.990
and if that factors into the location and the length,

544
00:24:51.990 --> 00:24:53.250
now you've got a real problem.

545
00:24:53.250 --> 00:24:55.920
You've got an unlawful sentence.

546
00:24:55.920 --> 00:24:57.120
<v ->Well, I disagree,</v>

547
00:24:57.120 --> 00:25:01.590
because counsel pointed out that she stated

548
00:25:01.590 --> 00:25:05.040
that there were 10 open charges at the time.

549
00:25:05.040 --> 00:25:06.390
There were 10 open charges.

550
00:25:06.390 --> 00:25:08.970
She may have found in the probation revocation hearing

551
00:25:08.970 --> 00:25:10.350
that there was insufficient evidence,

552
00:25:10.350 --> 00:25:11.700
but that particular case,

553
00:25:11.700 --> 00:25:14.040
the gun case, was still pending at that time,

554
00:25:14.040 --> 00:25:16.170
so all she said was it was an open charge.

555
00:25:16.170 --> 00:25:19.680
And in her introductory passage in the findings,

556
00:25:19.680 --> 00:25:23.580
she states that that was the first probation violation,

557
00:25:23.580 --> 00:25:24.413
and that she found

558
00:25:24.413 --> 00:25:26.430
that there wasn't sufficient evidence for that,

559
00:25:26.430 --> 00:25:28.380
so she's merely stating the facts of the case

560
00:25:28.380 --> 00:25:32.403
and laying it out for the parties and for review.

561
00:25:35.460 --> 00:25:38.043
She considered significant factors,

562
00:25:40.680 --> 00:25:42.750
and she was also very familiar with this case.

563
00:25:42.750 --> 00:25:44.880
She handled this case from the arraignment

564
00:25:44.880 --> 00:25:48.390
on the carjacking case, both probation revocation hearings,

565
00:25:48.390 --> 00:25:51.480
and she was well aware of this individual's repeated history

566
00:25:51.480 --> 00:25:53.220
of probation violations.

567
00:25:53.220 --> 00:25:56.253
She said he started with a continuing without a finding.

568
00:25:57.180 --> 00:26:00.270
The first, when he pled on these charges,

569
00:26:00.270 --> 00:26:02.880
she sentenced him to a house of correction sentence

570
00:26:02.880 --> 00:26:06.873
with five years probation in hopes that he would,

571
00:26:08.520 --> 00:26:11.460
his behavior would be corrected or improved,

572
00:26:11.460 --> 00:26:13.800
and yet, four months after being released

573
00:26:13.800 --> 00:26:14.790
from the house of correction,

574
00:26:14.790 --> 00:26:17.700
the defendant committed the first violation

575
00:26:17.700 --> 00:26:19.800
with the possession of a firearm,

576
00:26:19.800 --> 00:26:22.800
which I know was now crossed eventually,

577
00:26:22.800 --> 00:26:24.690
and missing an appointment.

578
00:26:24.690 --> 00:26:26.790
<v ->But it wasn't even a basis for the violation,</v>

579
00:26:26.790 --> 00:26:29.610
so really the violation was not reporting to probation.

580
00:26:29.610 --> 00:26:32.070
<v ->And because of that, she admonished him</v>

581
00:26:32.070 --> 00:26:36.120
and reprobated him, giving him yet another opportunity.

582
00:26:36.120 --> 00:26:38.970
So when he again violated probation with assault

583
00:26:38.970 --> 00:26:42.333
and battery and a police officer, the sentence of,

584
00:26:44.010 --> 00:26:45.330
for the house of correction,

585
00:26:45.330 --> 00:26:46.890
it could have been two and a half years

586
00:26:46.890 --> 00:26:51.483
on the assault and battery on an elderly person.

587
00:26:52.920 --> 00:26:55.118
Originally, it was three years to three years,

588
00:26:55.118 --> 00:26:57.780
not less than three, and not more than three and a day.

589
00:26:57.780 --> 00:27:00.300
When she did do the resentencing hearing,

590
00:27:00.300 --> 00:27:04.170
she changed the sentence to two and a half to three years,

591
00:27:04.170 --> 00:27:06.600
so he could have received that in a house of correction,

592
00:27:06.600 --> 00:27:08.910
but she had all of these factors

593
00:27:08.910 --> 00:27:10.800
which she took into consideration, and clearly,

594
00:27:10.800 --> 00:27:15.800
this individual is exactly what the legislature,

595
00:27:16.230 --> 00:27:19.680
or who the legislature intended be addressed

596
00:27:19.680 --> 00:27:22.470
by the youthful offender provisions of the statute.

597
00:27:22.470 --> 00:27:23.820
<v ->Well, I don't know about that, but you know,</v>

598
00:27:23.820 --> 00:27:25.570
let's stick to abuse of discretion.

599
00:27:27.270 --> 00:27:28.890
<v ->Well, clearly, in our opinion,</v>

600
00:27:28.890 --> 00:27:30.540
she did not abuse her discretion.

601
00:27:31.590 --> 00:27:32.910
Now it's two and a half to three years

602
00:27:32.910 --> 00:27:34.950
to the state prison.

603
00:27:34.950 --> 00:27:38.190
<v ->So how did these youthful offenders get their sentences</v>

604
00:27:38.190 --> 00:27:41.280
reviewed if the appellate division is only

605
00:27:41.280 --> 00:27:42.720
for the Superior Court?

606
00:27:42.720 --> 00:27:46.080
<v ->So I would suggest that</v>

607
00:27:46.080 --> 00:27:49.200
they can have their sentences reviewed.

608
00:27:49.200 --> 00:27:54.120
As I said, they're indicted, they're 12 person jury.

609
00:27:54.120 --> 00:27:55.320
The proceedings are not-
<v ->No, I'm not talking</v>

610
00:27:55.320 --> 00:27:57.630
about the due process entitlements.

611
00:27:57.630 --> 00:28:00.660
I'm talking about the appellate division

612
00:28:00.660 --> 00:28:04.050
and how that does or does not apply to youthful offenders.

613
00:28:04.050 --> 00:28:05.643
<v ->Well, the problem with that is</v>

614
00:28:05.643 --> 00:28:07.380
that it says criminal convictions,

615
00:28:07.380 --> 00:28:11.130
but this court in Commonwealth v. Starks,

616
00:28:11.130 --> 00:28:14.280
Starks v. Commonwealth stated that the question turns

617
00:28:14.280 --> 00:28:18.150
on whether it's a felony conviction to a state prison,

618
00:28:18.150 --> 00:28:20.910
and I would suggest here, that's exactly what we have.

619
00:28:20.910 --> 00:28:23.220
<v ->Do you agree that it should go to be appellate division?</v>

620
00:28:23.220 --> 00:28:25.020
<v Atty. Palumbo>I do.</v>

621
00:28:25.020 --> 00:28:26.370
<v ->And do you think it's appropriate then</v>

622
00:28:26.370 --> 00:28:28.800
to have Superior Court judges, a panel of three,

623
00:28:28.800 --> 00:28:31.560
as currently constituted, and not juvenile judges?

624
00:28:31.560 --> 00:28:34.230
<v ->I do, because it's simply your view</v>

625
00:28:34.230 --> 00:28:35.670
of a state prison sentence,

626
00:28:35.670 --> 00:28:38.010
and Superior Court judges are in the best position

627
00:28:38.010 --> 00:28:41.520
to judge the leniency or harshness of that sentence.

628
00:28:41.520 --> 00:28:44.310
<v ->Statute says the review of a state prison sentence imposed</v>

629
00:28:44.310 --> 00:28:46.130
by final judgments in a criminal case.

630
00:28:46.130 --> 00:28:47.100
<v Atty. Palumbo>Criminal cases, yes.</v>

631
00:28:47.100 --> 00:28:48.180
<v ->Criminal cases.</v>

632
00:28:48.180 --> 00:28:50.220
<v ->And that statute also uses the words</v>

633
00:28:50.220 --> 00:28:52.650
reformatory for women, which no longer exists,

634
00:28:52.650 --> 00:28:55.500
and when that statute was enacted, obviously,

635
00:28:55.500 --> 00:28:57.300
there were no youthful offender proceedings,

636
00:28:57.300 --> 00:29:01.023
and a juvenile could not be sentenced to state prison.

637
00:29:01.890 --> 00:29:03.293
<v ->Get this wrong.</v>

638
00:29:03.293 --> 00:29:08.293
So I understand that the appellant would rather have

639
00:29:08.400 --> 00:29:11.730
an appellate division and juvenile court judges making up

640
00:29:11.730 --> 00:29:12.880
the appellate division,

641
00:29:14.487 --> 00:29:17.370
but a juvenile can't have less rights.

642
00:29:17.370 --> 00:29:18.203
<v Atty. Palumbo>No.</v>

643
00:29:19.371 --> 00:29:24.240
<v ->And adults who receive a sentence on a felony</v>

644
00:29:24.240 --> 00:29:26.610
in Superior Court have that right

645
00:29:26.610 --> 00:29:28.560
to go to the appellate division.

646
00:29:28.560 --> 00:29:31.863
And since the juvenile can't receive less rights,

647
00:29:32.910 --> 00:29:34.470
don't they have to have that right?

648
00:29:34.470 --> 00:29:39.470
<v ->I believe they do, and even in chapter 119 in section 54,</v>

649
00:29:40.890 --> 00:29:45.180
it says that juvenile and YO is prosecuted in accordance

650
00:29:45.180 --> 00:29:48.180
with the usual course in manner of criminal proceedings.

651
00:29:48.180 --> 00:29:53.180
And in 55A and 56, it says that review may be had

652
00:29:53.407 --> 00:29:56.940
by appeal report or otherwise in the same manner provided

653
00:29:56.940 --> 00:29:58.620
for trials in criminal cases.

654
00:29:58.620 --> 00:30:02.670
<v ->Statute says we can't sort of take a blank piece of paper</v>

655
00:30:02.670 --> 00:30:04.950
and create an appellate division of the-

656
00:30:04.950 --> 00:30:07.890
<v ->No, it was a legislative body</v>

657
00:30:07.890 --> 00:30:10.740
that created the appellate division of the Superior Court,

658
00:30:10.740 --> 00:30:13.020
and I would think it would have to be the legislature

659
00:30:13.020 --> 00:30:15.873
who would also create, if they wanted to,

660
00:30:17.130 --> 00:30:20.730
a appellate division for youthful offender convictions.

661
00:30:20.730 --> 00:30:24.076
<v ->Which probably makes good sense,</v>

662
00:30:24.076 --> 00:30:26.700
since they'd have more experience,

663
00:30:26.700 --> 00:30:29.220
but there's no statutory provision.

664
00:30:29.220 --> 00:30:31.260
<v ->No, but this case,</v>

665
00:30:31.260 --> 00:30:34.200
as in like in Commonwealth v. Connor C,

666
00:30:34.200 --> 00:30:37.770
the court held that a prior adjudication was a conviction

667
00:30:37.770 --> 00:30:39.990
for purposes of the gun statute.

668
00:30:39.990 --> 00:30:44.910
This court, the youthful offender proceedings have

669
00:30:44.910 --> 00:30:47.100
all the characteristics of a criminal proceeding.

670
00:30:47.100 --> 00:30:48.600
I know that's not-

671
00:30:48.600 --> 00:30:51.110
<v ->I know, but when you mentioned that at the time,</v>

672
00:30:51.110 --> 00:30:52.530
the appellate division was still talking

673
00:30:52.530 --> 00:30:55.410
about the Concord Reformatory sentence, for goodness sake,

674
00:30:55.410 --> 00:30:56.910
they're not contemplating this.

675
00:30:56.910 --> 00:30:58.013
<v Atty. Palumbo>Right.</v>

676
00:30:59.220 --> 00:31:01.920
<v ->But we don't have that blank piece of paper</v>

677
00:31:01.920 --> 00:31:04.200
to allow juvenile court judges

678
00:31:04.200 --> 00:31:06.340
who have this experience to do it,

679
00:31:06.340 --> 00:31:08.270
whether that's the better course or not.

680
00:31:08.270 --> 00:31:10.283
<v Atty. Palumbo>It would be the legislature.</v>

681
00:31:11.340 --> 00:31:14.460
But so I believe, given that for all intents

682
00:31:14.460 --> 00:31:16.713
and purposes, this is a criminal conviction,

683
00:31:17.640 --> 00:31:19.590
that youthful offenders

684
00:31:19.590 --> 00:31:22.110
who receive a state prison sentence should also be allowed

685
00:31:22.110 --> 00:31:23.340
to appeal to the appellate division

686
00:31:23.340 --> 00:31:25.383
of the Superior Court, and in fact,

687
00:31:26.280 --> 00:31:30.210
this youthful offender's sentencing appeal was scheduled

688
00:31:30.210 --> 00:31:31.043
for November,

689
00:31:31.043 --> 00:31:35.133
as well as four other youthful offender sentencing appeals.

690
00:31:38.910 --> 00:31:41.400
If there are no further questions, I would ask the court

691
00:31:41.400 --> 00:31:46.383
to affirm the youthful offender's state prison sentence.