-: SJC-13496, Commonwealth v. a Juvenile.
-: [Chief Justice Budd] Okay, Attorney Renaud.
-: Feel very short in here.
Thank you.
Excuse me.
May it please the court, Suzanne Renaud for the juvenile.
Your Honors, to start with,
I just wanna make one change from what I said
in the primary brief, and that is the relief
that the juvenile is seeking at this time,
and it's caused by the passage of time since April
when that was originally filed, is actually asking
for a Department of Corrections sentence
that would be suggested
by the advisory sentencing guidelines
of zero to 24 months at this point,
and again it's simply because so much time has passed.
He's had good time credit.
He's already served two and a half years just about
of the sentence,
and for him to be put in a different setting,
I think would probably be more disruptive than anything,
and so that is why that's the relief that's sought,
and tangential to that,
I would ask that if this court agrees,
that that would be the appropriate outcome,
to issue, if you could, an immediate order
having the juvenile court enter that order on his behalf,
because at this point, any more time spent would have
potentially an irreparable harm on him,
even if you issue a decision later.
But obviously, we do wanna talk about the issue
that this court raised, and that is what is the review,
what can be the review, what is the possibility
of anybody looking at a juvenile sentence?
And there's clearly a lack of clarity.
This court expressed that.
-: It was a lawful sentence, right?
-: It is a lawful sentence.
Well, it's lawful insofar as it fits under Section 58.
-: Right, so the judge has three options, right?
And they picked option A, to your client's detriment,
you know, to be sentenced as an adult.
Sentencing this person as an adult
for the offenses charged include a state prison alternative.
Atty. Renaud: Yes, Your Honor.
-: Right, and the judge imposed state prison alternatives.
-: The situation that I did raise in my opening brief was
that there is a focus in her decision on punishment,
and that the law has suggested very strongly
that there has to be a rehabilitative option
that would be part of the focus
of what the length of the sentence is.
So the illegality isn't because of the setting necessarily.
In this particular case for this particular juvenile,
the illegality, if you agree on that point,
would be because there are statutory precepts
that say that there has to be a prioritization of that-
-: Didn't Judge Gershengorn and say something like,
"Yeah, I've been a juvenile judge for a long time.
I kind of know this stuff."
-: She does know, of course,
and I don't deny that she has a better sense
of all of the literature than I do,
but at the same time, there has to be,
particularly when you're dealing with this issue
of length of a sentence, there has to be an articulation.
I wanna just go back for one moment.
In the best practices, the opening,
I think on page three of it says that there has to be
an interest in frugality, in other words,
how can you serve the ends using the least harsh means?
-: We have as best practices, we have advisory sentencing.
We don't have mandatory sentencing guidelines, right?
-: Of course, except that I bring that up
because that is reflective of the trend in the law
and in the statutes that all say
that when you are looking at a juvenile
under Section 1 of chapter 119 and section 53 of 119,
and the way Connor C says it, you don't ignore
those other things, to treat children like children,
to prioritize juvenile sentencing,
to make that juvenile rehabilitated
and a better person at the end,
and part of what goes into that is that consideration
of where they're going to go,
and for how long they're going to go there,
and if you just completely leave that out,
it is clearly an abuse of discretion.
But I would also say that there would be a potential error
of law that arises if those particular considerations are
not explicitly referenced, and in contrast,
the issue of punishment is overly focused upon
over and over and over again.
I should also mention, I mean, there's another error
of law in there, which is she said that this juvenile,
he committed violent crimes.
Nothing he has is a crime of violence as defined by the law,
and that they increased in severity over time.
She included in that taking into account things
that she herself had found had no merit.
-: The carjacking wasn't a crime of violence?
-: She was talking about the probation, the crimes
that were committed allegedly while he was on probation.
I'm not talking about the underlying offenses themselves,
because clearly those are
in a different category altogether,
which obviously can come into play with all of this,
which is why at the end of the day,
when we're talking about this juvenile,
never, I mean, I know that he did ask at one point
for DYS sentence, but the request has actually been
for some kind of adult sentence.
There is a recognition that by violating probation on these-
-: Can I just go back to your challenge
to the judge's finding that there's been an escalation?
So the first violation of probation was
for failing to report to probation, right?
And he got a sort of a slap on the back of the hand,
and said, "Hey, fix it."
And the second one was, I thought assault and battery
on a police officer, resisting arrest,
interference with a police officer,
disturbing the peace, isn't that-
-: Well, there are two things, Your Honor.
J. Wendlandt: An escalation from failing to report?
-: She actually considered the first violation.
She said, I don't believe, if I look at her words,
she didn't say it was the probation violation
that escalated, she said his crimes have increased
in severity, and for that-
-: And what are you reading into that?
-: I'm sorry, Your Honor, if I may,
she says he has 10 open charges, and
number 17, 10 open charges including possession
of a firearm, and then number 18 says
the defendant's crimes have grown in seriousness
over a relatively short time.
So she actually was not saying
that the probation violations increased in severity.
She said that the crimes
that she was saying that he had committed
while on probation had increased in severity.
-: And she actually disagreed with the Commonwealth,
and found that he wasn't responsible
for the possession of a firearm as well, right?
-: Well, which is part of the reason why I, you know, again,
if we're doing this on abuse of discretion,
you have to honestly say, well, you know,
this is a tested offense that she found that
by the preponderance of the evidence didn't meet
the standard, and I think Your Honors know now
that's been dismissed.
-: As Justice Wendlandt pointed out,
that's when he got the slap on the wrist.
-: That's when he got the slap on the wrist, but yet in her-
-: That's a judge using her discretion to say,
"Even on a preponderance, you don't have enough
of constructive possession.
I'm not gonna take into account the firearm charge."
-: But yet in August, and then again in January of 2023
when she wrote her written decisions,
and this is after I brought it to her attention
in the motion for new trial,
she ignored the fact that she had determined
that those criminal offenses,
after testing them with a two day hearing,
did not meet the standard of proof
of being something that he actually committed.
They've been dismissed,
-: Remind me, what happened to those charges?
Were they ever litigated?
-: They were, there was a motion to suppress,
the motion to suppress was allowed,
and the Commonwealth nolle prosequi.
So those are all been disposed at this point,
but again, you know, back in,
by the time that she decided in February of 2022
that there was no preponderance of evidence
to support his constructive possession, even using hearsay,
you know, in that hearing, then to go in her decision
and to use that as a basis to say,
"Well, we should punish this person very harshly
because he has these crimes."
I think that that is,
it's a bit perplexing, really, about that.
And again, I'm not saying that there aren't crimes
that he is picking up and getting accused of
and having an indictment brought against him,
and those all things that can come into the equation.
But what it doesn't tell you,
and there is literally no place in either
of her written findings
that tell you this is why did she pick three years?
There is no reason why she found,
that she said three years is the appropriate amount.
When she decided this originally in July, she was basing it
on a couple of misapprehensions of what she-
-: Is that the standard, though?
I mean, we've sentenced a lot of people,
and you know, there's nothing, there's a house,
because the baseline or the guidelines was two years
in the house corrections, correct?
-: The guidelines for him, and again she's misinformed,
would've been zero to 24 months.
-: 24 months, right?
So she says, "Well, that's the guidelines,
that's the heartland, but you know what?
this guy deserves another year."
-: But she didn't say that,
and she didn't give her reasoning.
-: Right, but I just don't get how we get
to abuse of discretion for something
which is a three year sentence, frankly,
given the escalated conduct we have in this case.
-: But I think, well, there are a couple of reasons.
Number one, it's not escalating conduct.
-: It seems like he's out of control,
so basically, he just gets outta DYS,
and he does this really incredible crime,
and then he goes on probation,
and he just keeps on picking up new charges,
and she says, "Listen, at the end of the day,
he's now a menace to society, essentially," right?
-: But he's a juvenile, Your Honor,
and everything that we're talking about,
he did when he was 16 years old,
and that's where all of this comes out of,
where yes, you've sentenced people,
but when you're talking about juvenile sentencing,
the entire focus has to be like,
what exactly is going to be beneficial to this person,
and what is going to be unduly harmful?
Again, sentencing him to an adult sentence makes sense
for exactly the reasons why you just stated,
but when you're dealing with juveniles,
length and location matter too.
It's not just getting an adult sentence.
-: Can a juvenile judge take into account
the public safety concerns?
-: Of course they can, but I think that the other part
of a juvenile judge taking into account public safety is
that you are also trying to rehabilitate the person,
because you don't want them to be a recidivist,
and so if you are looking at that, at least give reasons,
which she didn't give any reasoning.
J. Georges: Does she have to?
-: I believe she does, Your Honor.
-: Where's your support for that?
I guess that's why I keep going back to it,
because I probably didn't sentence
as much as my Superior Court brethren,
but if I have a range of appropriate sentence range,
and I pick a range,
I don't have to say why I am picking a range.
I don't wanna have to say that.
I mean, there are no, it's not prescribed.
-: Well, Your Honor, while that might be true,
there are two responses to that.
Number one, I think for a juvenile,
especially with the knowledge in this case that she had
that he was going to be going
to Souza-Baranowski has to factor into that.
But the second part of it is, is that when you're dealing
with abuse of discretion, it's also based on errors of law.
If she is calling parole a service,
if she is saying originally that, "I'm punishing him
for carjacking," which is what she did I think on page 28
of July transcript, if she's saying
that these are violent crimes, which they're not,
if she is making a number of mistakes of law,
and she was also originally basing this on saying
and believing that the assault and battery carried
a maximum five-year penalty,
if she's doing all of those things,
and those are all errors of law,
now that we've erased those errors of law,
it's an abuse of discretion
if the original discretion was premised
on those errors of law,
and there's no other reason to understand
where she came up with the three years.
-: Can you help me on this analysis on,
these are all violations of probation, right?
Atty. Renaud: Yes, Your Honor.
-: In the sentence,
the index sentence is the carjacking probation?
Atty. Renaud: Not any longer, Your Honor.
-: No, no, so he was sentenced
by Judge Gershengorn with five years probation
from and after on the carjacking, right?
-: No, Your Honor, it was on counts two and three.
-: Which were assault on an elderly man.
-: Okay, but I'm not-
-: They're level four offenses
rather than level six, Your Honor.
-: This is my, I'm not being precise.
Atty. Renaud: Okay.
-: It was the 2019 offenses.
Atty. Renaud: Yes.
-: And he served on the carjacking and then from and after.
Atty. Renaud: Yes.
-: Then we're dealing
with two different violations of probation,
one he doesn't really violate,
and then the second one is when she comes down
hard on the thing.
Atty. Renaud: Yes, Your Honor.
-: When we look at a violation of probation,
is it that the judge is sentencing on the charges
they put them on probation for, or the new offense?
-: Well, you can't sentence for the new offense.
-: Right, so your sentencing, my understanding was,
and the sometimes it gets lost, right?
Because it depends on how bad the new offense is or how not,
but you're basically saying,
and I think the case law says something like,
"You were given the grace of probation to start,
you then violated probation,
and now I'm going to sentence you for that crime,
i.e., the carjacking, the armed assault to rob, et cetera."
That's the paradigm we're, we're dealing with, right?
Atty. Renaud: Yes, Your Honor.
-: Okay.
-: Yes, and so, but even within that context, I think-
-: But when she says it was a serious offense,
she's referring to the carjacking, armed assault to rob,
and AB on an elderly person?
-: In number 18, what she's calling
a serious offense is the gun offense
and the resisting arrest, A and B on a police officer,
which are misdemeanors,
and I just would point you to, especially, you know,
I haven't had a chance yet to discuss the proper mode
of review, especially if you were to look at this de novo,
if you read that police report, you know, it was-
-: But before we lose you on that last point,
which I know is probably, and if I have,
if I could ask this question, Chief,
don't we have to rewrite the statute
to come up with this appellate division remedy?
-: I don't believe so, Your Honor, and I think the reason is
because, you know, in Wallace W, for example, you were able
to look at a statute and say there's a hole in the statute,
instead of waiting for the legislature to act, we can act.
And part of the reasons you can act in this particular case
where you might not be able to with another statute is
because it affects the judiciary,
and how the judiciary functions, really.
And so that makes this a whole different animal,
that you don't have to rewrite the statute,
that you can act on your own volition.
You can create this court or this branch.
-: Our supervisory authority would give us the ability
to create this review, and add a juvenile court judge
and the Superior Court judge and reconfigure it?
-: That is my position on this, and I think, you know,
the other thing I would point out,
I know the trial courts did this,
but the created drug court, so yes, creating-
-: Seems awful statutory to me,
especially when your client has all the rights
that somebody would in the criminal context,
and one of the rights
in the criminal context is the appellate division.
-: He doesn't have all the,
Your Honor, he doesn't have all the rights
that are in the criminal context.
You know, as I was preparing for this,
I was going through literally every section of chapter 119,
and you can see how the legislature defined juvenile courts.
It said, "We're going to treat this part
akin to Superior Court.
We're gonna treat this part akin to district court.
We're going to give the juveniles," for example,
only have the right to appeal because 119,
I believe it's 55A and 56.
Adults, on the other hand, it's 278 section 28.
That's where it comes from.
There is no automatic right for every juvenile,
even one that's getting an adult sentence,
to be treated exactly as an adult.
I mean, and going back with that,
if a juvenile is being treated as an adult
and getting a DOC house of correction sentence,
that juvenile is certainly not, you know, in any position
to, at least at the moment, to appeal that sentence.
And so, and under juvenile law, the way we've framed it,
Conner C and other places have said
that any adult sentence is the harshest sentence
a juvenile you can get.
-: Someone sentenced to two and a half in district court
or BMC and two and a half
from and after doesn't get any review.
-: They don't, Your Honor, but I think, again,
it's different for juveniles, because the way that we look
at adult sentencing, and the way that we approach adults is
to say that the harshest sentence for an adult,
because you're all going to end up going
to some kind of adult incarcerative setting,
is that it has to do with length, and so you know,
we have to make a cutoff, and generally,
our cutoff is going to be Department of Corrections,
even though those can be as low as a year,
you know, because on average, it's not going to be.
On the other hand, with juveniles,
the harsh sentences have two components.
One is the setting, which is an adult setting,
and the other is the length,
and so that automatically puts 'em in a different position.
The other piece of this that I've obviously mentioned
a number of times is where the juveniles are going to go.
If you have an 18-year-old juvenile
who can go into the Department of Corrections
and they are classified to Souza-Baranowski,
you have to now take that back and say,
"How does that fit in with the rest of our juvenile scheme?"
Because what if you wanted a juvenile
to go be sentenced on two counts for five years?
Could you manage to do that by doing
back-to-back house correction sentences
because you were conscious of the fact
of where they were going to go,
and how much more harm for a developing mind
that that might end up creating?
So it really is very different,
and I don't see that juveniles, even juveniles
who are in an adult realm, because of the offenses,
because of whatever they've done, are treated
exactly the same as adults.
We treat them differently.
We put them in a different category.
We put them in a, use a word that I've used a number
of times, a liminal space where we have to have recognition
that they still are children in need of services.
And the law does recognize that to a certain degree,
but 28A through 28C just simply doesn't apply.
There's never been any kind of overlap.
There's nothing in chapter 119
that in any way references that explicitly,
and every other time we treat juveniles like adults,
we reference it explicitly
that we are going to treat them with an adult sentence,
or we're going to treat them like they're in Superior Court,
and that doesn't have that piece to it, and it should,
and this court has the power to do that,
and to create all of the different components to it
that were suggested by the amicus brief,
I think that that it is a really wise way of going about it.
I do wanna mention just very briefly,
if you were to do this, there is one procedural problem,
which is that I know
that the clerk has trouble accessing juvenile dockets,
so the clerk doesn't even know
when these sentence appeals have been filed,
which is one of the reasons
why this juvenile's case has been prolonged for so long.
It's my recollection, although I could be wrong,
that she didn't know about it until I called her up
to ask her if it had been scheduled, and she's like,
"Oh, I didn't even know that that was,
that he had filed anything."
So when you are in a position as a juvenile, you know,
that they're not even getting the attention,
and they're just falling through the cracks,
and again, every day that you spend in that adult setting,
if they're not supposed to be there,
can have a big impact on them,
then that is just simply something that shouldn't stand,
and shouldn't have to wait for the legislature to act
when you have the power to do that.
-: [Chief Justice Budd] Okay, thank you.
-: Thank you, Your Honors.
-: [Chief Justice Budd] Okay, Attorney Palumbo.
-: Good morning, Your Honors, may it please the court,
Karen Palumbo on behalf of the Commonwealth.
This court usually only reviews a sentence for error of law,
and not usually for abuse
of the trial judge's wide discretion.
I would suggest in this case that there was neither,
there was no error of law,
and there was no abuse of discretion.
The judge laid out numerous factors in her findings.
-: She had 25 factors, and I think in factor 22 and 25,
she did explain why she had wasn't doing
a house of correction sentence.
-: Yes, because this individual, as she stated,
has already taken advantage of every single opportunity
offered by the juvenile justice system.
And because the legislature decided in 1996
that some individuals, juveniles, need more,
who are not amenable to rehabilitation,
can be treated differently.
So the Commonwealth can proceed by indictment
through a grand jury if the youthful offender,
and this is a youthful offender, this is not a juvenile.
If the youthful offender chooses to have a jury trial,
it's a 12 person jury trial.
The proceedings under 60A are open to the public,
and the records open to the public,
which is a big difference
between a juvenile proceeding and a youthful offender.
Also the individual is subject to adult sentences.
So we're not just in the juvenile setting,
but this judge has given this individual
on this particular case every opportunity.
He has at every turn shown that he cannot abide
by the terms of probation.
He's repeatedly violated probation,
and had been returned to DYS custody.
He cut his GPS monitor off on two occasions,
and I would disagree with counsel.
His behavior and his crimes have grown in intensity.
Not only did he assault an elderly man,
but he escaped from a DYS facility
before committing that crime.
I would suggest that there are sufficient-
-: But the violations of probation, one is for an offense
he didn't commit, the possession of the firearm,
based on constructive possession,
and the second one was the ABPO, correct?
Atty. Palumbo: Correct.
-: And she finds that these are escalated?
How have these escalated from,
they're certainly not escalated from the carjacking.
-: Well, in general, they're escalating.
An assault and battery on a police officer,
I would suggest, is escalating.
J. Gaziano: From a carjacking?
-: Well, he's still assaulting,
he's assaulting a public official, so I would say,
although you don't get much worse
than assaulting an 80-year-old man.
J. Gaziano: Right, I understand.
-: Counsel, what do you say to the notion
that sometimes when you say too much,
you expose the abuse of discretion?
And so counsel made the point that, okay,
she laid out all these factors,
but if she's wrong on some of the factors that went
into the consideration,
that you've got an error of law there,
and if that factors into the location and the length,
now you've got a real problem.
You've got an unlawful sentence.
-: Well, I disagree,
because counsel pointed out that she stated
that there were 10 open charges at the time.
There were 10 open charges.
She may have found in the probation revocation hearing
that there was insufficient evidence,
but that particular case,
the gun case, was still pending at that time,
so all she said was it was an open charge.
And in her introductory passage in the findings,
she states that that was the first probation violation,
and that she found
that there wasn't sufficient evidence for that,
so she's merely stating the facts of the case
and laying it out for the parties and for review.
She considered significant factors,
and she was also very familiar with this case.
She handled this case from the arraignment
on the carjacking case, both probation revocation hearings,
and she was well aware of this individual's repeated history
of probation violations.
She said he started with a continuing without a finding.
The first, when he pled on these charges,
she sentenced him to a house of correction sentence
with five years probation in hopes that he would,
his behavior would be corrected or improved,
and yet, four months after being released
from the house of correction,
the defendant committed the first violation
with the possession of a firearm,
which I know was now crossed eventually,
and missing an appointment.
-: But it wasn't even a basis for the violation,
so really the violation was not reporting to probation.
-: And because of that, she admonished him
and reprobated him, giving him yet another opportunity.
So when he again violated probation with assault
and battery and a police officer, the sentence of,
for the house of correction,
it could have been two and a half years
on the assault and battery on an elderly person.
Originally, it was three years to three years,
not less than three, and not more than three and a day.
When she did do the resentencing hearing,
she changed the sentence to two and a half to three years,
so he could have received that in a house of correction,
but she had all of these factors
which she took into consideration, and clearly,
this individual is exactly what the legislature,
or who the legislature intended be addressed
by the youthful offender provisions of the statute.
-: Well, I don't know about that, but you know,
let's stick to abuse of discretion.
-: Well, clearly, in our opinion,
she did not abuse her discretion.
Now it's two and a half to three years
to the state prison.
-: So how did these youthful offenders get their sentences
reviewed if the appellate division is only
for the Superior Court?
-: So I would suggest that
they can have their sentences reviewed.
As I said, they're indicted, they're 12 person jury.
The proceedings are not- -: No, I'm not talking
about the due process entitlements.
I'm talking about the appellate division
and how that does or does not apply to youthful offenders.
-: Well, the problem with that is
that it says criminal convictions,
but this court in Commonwealth v. Starks,
Starks v. Commonwealth stated that the question turns
on whether it's a felony conviction to a state prison,
and I would suggest here, that's exactly what we have.
-: Do you agree that it should go to be appellate division?
Atty. Palumbo: I do.
-: And do you think it's appropriate then
to have Superior Court judges, a panel of three,
as currently constituted, and not juvenile judges?
-: I do, because it's simply your view
of a state prison sentence,
and Superior Court judges are in the best position
to judge the leniency or harshness of that sentence.
-: Statute says the review of a state prison sentence imposed
by final judgments in a criminal case.
Atty. Palumbo: Criminal cases, yes.
-: Criminal cases.
-: And that statute also uses the words
reformatory for women, which no longer exists,
and when that statute was enacted, obviously,
there were no youthful offender proceedings,
and a juvenile could not be sentenced to state prison.
-: Get this wrong.
So I understand that the appellant would rather have
an appellate division and juvenile court judges making up
the appellate division,
but a juvenile can't have less rights.
Atty. Palumbo: No.
-: And adults who receive a sentence on a felony
in Superior Court have that right
to go to the appellate division.
And since the juvenile can't receive less rights,
don't they have to have that right?
-: I believe they do, and even in chapter 119 in section 54,
it says that juvenile and YO is prosecuted in accordance
with the usual course in manner of criminal proceedings.
And in 55A and 56, it says that review may be had
by appeal report or otherwise in the same manner provided
for trials in criminal cases.
-: Statute says we can't sort of take a blank piece of paper
and create an appellate division of the-
-: No, it was a legislative body
that created the appellate division of the Superior Court,
and I would think it would have to be the legislature
who would also create, if they wanted to,
a appellate division for youthful offender convictions.
-: Which probably makes good sense,
since they'd have more experience,
but there's no statutory provision.
-: No, but this case,
as in like in Commonwealth v. Connor C,
the court held that a prior adjudication was a conviction
for purposes of the gun statute.
This court, the youthful offender proceedings have
all the characteristics of a criminal proceeding.
I know that's not-
-: I know, but when you mentioned that at the time,
the appellate division was still talking
about the Concord Reformatory sentence, for goodness sake,
they're not contemplating this.
Atty. Palumbo: Right.
-: But we don't have that blank piece of paper
to allow juvenile court judges
who have this experience to do it,
whether that's the better course or not.
Atty. Palumbo: It would be the legislature.
But so I believe, given that for all intents
and purposes, this is a criminal conviction,
that youthful offenders
who receive a state prison sentence should also be allowed
to appeal to the appellate division
of the Superior Court, and in fact,
this youthful offender's sentencing appeal was scheduled
for November,
as well as four other youthful offender sentencing appeals.
If there are no further questions, I would ask the court
to affirm the youthful offender's state prison sentence.