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SJC-13566 in the matter of an impounded case.
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Okay. Attorney Anderson.
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Good morning. Brian Anderson for the juvenile appellant.
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May it please the court.
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A distinctive feature of the juvenile court
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is that it has limited jurisdiction.
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Now, of course, limited by age,
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but also limited by offense, limited by charge.
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And the legislature has clearly defined
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when the juvenile court has jurisdiction,
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but also when it does not have jurisdiction.
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The juvenile court does not have jurisdiction
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over a first offense minor misdemeanor.
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Now, this court has elaborated on
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the different paths to arrive at a dismissal
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as a first offense minor misdemeanor.
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This case creates another path
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to dismissal as a first offense minor misdemeanor.
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Now it's a quirky path.
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It's a path that may not arise very often,
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but it's a path that is rooted
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in basic principles of jurisdiction.
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Jurisdiction is not a flexible concept.
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If it's not a flexible concept,
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the court did have jurisdiction up through the trial, right?
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Correct.
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The court had jurisdiction up until the point
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that the jury determined that it was a minor misdemeanor.
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Now, in that situation, because it's a minor misdemeanor,
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we then look to, does the juvenile have any prior offenses
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that would not make it a first offense minor misdemeanor?
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So this is the rare situation where
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the juvenile court has...
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It's filed as a felony.
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The juvenile court has jurisdiction over that felony,
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whether it's his first felony or his fifth felony.
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They have jurisdiction.
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They maintain jurisdiction up until the jury says
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he's guilty of a first offense minor misdemeanor.
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Do you think that jurisdiction is actually
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the correct concept for this?
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It's not personal jurisdiction obviously.
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It may not even be subject matter jurisdiction
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because if it were the second time a juvenile were charged
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with the same offense,
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the court would have subject matter jurisdiction.
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Subject matter is within the jurisdiction of the court.
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So what kind of jurisdiction is this?
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Well, this I believe will be subject matter jurisdiction.
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So the legislature says, you know, the legislature defined
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where the juvenile court again has jurisdiction,
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where it does not.
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Right, so you think it's subject matter jurisdiction
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over the first minor misdemeanor.
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Correct.
But not any other
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or any subsequent minor misdemeanor?
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Why isn't it just authority? Statutory authority?
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So the juvenile court has the authority
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to hear essentially anything but
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a first offense minor misdemeanor.
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So it's a first offense minor misdemeanor-
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And therefore they have no authority?
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Correct. That's what the situation is.
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Now, it's odd because the situation didn't arise
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until the jury gives its verdict.
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Sure, so they may lose their authority?
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Correct.
Right.
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It may be a purely academic concern
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about why we call this jurisdiction
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as opposed to a statutory authority.
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But we've called it jurisdiction.
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We've done this three times already.
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Correct.
Isn't this controlled by
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express language In our cases?
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I'm just looking at footnote eight in Nick N.
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If a greater charge proceeded to trial and was not proved,
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the minor misdemeanor charge would be
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a first offense subject to dismissal.
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Isn't it clear this is dismissed
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and the only recording of this is in mass courts
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to establish that we now have a first misdemeanor.
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Yes, I agree.
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It seems like we've done this and explain what we're-
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I agree, so I what I think essentially
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the jury trial functioned at as a Wallace W. hearing
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so the minor misdemeanor was proved beyond
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a reasonable doubt.
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So now he gets the benefit of the dismissal
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because it's his first minor misdemeanor.
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Now going forward, jurisdiction has been established-
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And we keep track of it in mass courts,
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but we don't keep a record.
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I'm just trying to understand precisely what occurs now.
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My understanding is, at least at this point is,
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okay, they were perfectly allowed
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to proceed with the felony.
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It's been disproven. We now have a first misdemeanor.
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And the way we have explained that,
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that means it's kept track of in mass courts,
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but it's not kept as a record otherwise.
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Isn't that clear from the three cases we've done on this?
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Yes, I 100% agree with that.
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The I guess difference in what actually happened
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in this case is that a record was created,
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a board of probation record was created.
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So right now the juvenile has a quaere,
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court activity record information that says
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jury trial, guilty, CWOF, dismissed.
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That's a record that is available
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to court, law enforcement, prosecutors going forward.
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That's not what the legislature contemplated.
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So what the legislature contemplated was,
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you know, you get a first shot,
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you commit that first offense minor misdemeanor.
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It's noted in mass court
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so the court is aware this juvenile already has
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a first admits minor misdemeanor.
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Jurisdiction has been established
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but there's no other record of it.
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So what do you want to have happen exactly?
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I'm just trying to make sure I understand
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what you want to happen.
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What I think should happen is that the case should be note
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dismissed as a first offense minor misdemeanor
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and the notation is made in mass court that,
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you know, he has had the benefit
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of a dismissal first offense.
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I'm not exactly clear.
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You know, there's a distinction
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between dismissal as a first offense
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without a Wallace W. hearing versus one that has gone
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to a Wallace W. hearing.
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Essentially, this jury trial functions as
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that Wallace W. hearing to establish jurisdiction
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so that if there is a subsequent
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first offense minor misdemeanor trespass disorderly conduct,
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the court-
But it seems like the...
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Sorry.
No, please go ahead.
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It seems like the only dispute is
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what should happen to the court records of this case?
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Meaning that it started as a felony
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and ended up as a first degree murder
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and what happens to that documentation?
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Is that right or am I misunderstanding?
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May I ask a follow up question? It may be-
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Yeah, so I think it should be noted in mass courts
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that it was dismissed as a first offense minor misdemeanor.
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Part's the easy part.
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I think the harder part is the court records themselves.
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Do they just disappear or what happens?
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No, I mean, my understanding is that
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the court re the court has a record
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that the minor misdemeanor has been proven
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and jurisdiction has been established going forward.
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So that if a subsequent complaint
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for a minor misdemeanor was filed,
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jurisdiction has been established
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and there's no need to, you know, notify the Commonwealth
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that we need to have a Wallace W. hearing
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to establish jurisdiction.
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I'm wondering, try the following on for size
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and see if what you think of it.
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We would need to vacate the sentence.
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Correct.
Remand with an instruction
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that the minor misdemeanor be dismissed
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on jurisdictional grounds.
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Correct, dismissed
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as a first offense.
And there's nothing
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that happens with respect to the acquittal
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on the greater offense that-
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I mean, I think so, yes.
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I mean, again, it's a quirky situation.
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I think the, you know, appropriate thing in mass court
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and how it's noted in the-
It was charged
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and there was a jury verdict.
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I mean, do you think that there's something we could do
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about that at this point?
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No, I mean, I think really what the court...
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The court can't change the fact that he was charged with-
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And acquitted.
Open and gross-
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and lascivious behavior.
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So is what I just recited
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the remedy that you would be looking for
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as a result of this appeal?
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Yes, so just so I just wanna make sure
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we're on the same page.
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Right, we're trying to understand
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what your position is with respect to the remedy.
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You know, vacating the sentence of a continuance
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without a finding, dismissing the case
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as a first offense minor misdemeanor.
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A minor misdemeanor.
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And then however the juvenile court notes it
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in mass courts so that the first offense minor misdemeanor
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has been proven.
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That's how it should end. And then-
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But you're still not getting the Justice Kafker's points
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what I still share.
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Okay, we're talking about two very different things.
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I'm not talking about how it's noted in mass courts.
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You are mentioning what happens on the quarry,
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the external board of probation,
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the commissioner of probation's records, okay?
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That's what I'd like to get to because they're not a party.
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I don't even know if they have a position on this.
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But what happens in a situation like this
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where now we say there was no statutory authority
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in the first place, but yet it's already noted
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by virtue of the arraignment of that charge?
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Because ultimately following your logic,
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this was the first strike that the legislature intended
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for no one to know about outside of the internal ecosystem
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of the Massachusetts Court System.
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So in terms of your remedy,
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is there something else that you are looking for
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for us to direct the commissioner of probation to do?
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That's what I'm interested in.
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No, I understand the question and I can give you
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my opinion how I would plan on handling it.
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I would do a motion to expunge in juvenile court.
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That that's what I was gonna ask. If that's the remedy-
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I think I would have to do a separate motion
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to expunge in juvenile court
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based on the expungement statute.
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You know, I'm not asking this court to say expunge it.
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I mean, I'm asking for this court to say,
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you know, dismiss it as a first offense.
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I believe that would then give me the remedy of going to
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ask that it be expunged in the juvenile court
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because, you know, a dismissal as a first offense-
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Can I just ask, because I have the exact same concern
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as Justice George, but I'm wondering
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whether you can go one step further though,
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which is, I mean, the legislature did not want
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any record kept of first misdemeanors,
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whatever they're called, these minor misdemeanors.
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I just don't know but I understand the expungement remedy,
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but I'm wondering whether you even need to go there.
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But I have the same concern Justice George's
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which is, it's just not clear.
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So I think, again, the remedy that this court could give
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is an acknowledgement that it should be dismissed
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as a first offense minor misdemeanor.
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I'm just looking at footnote eight.
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Okay, I'm looking at footnote eight in Wallace W.
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When such a charge is dismissed as a first offense,
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record keeping regarding the juvenile
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shall therefore be limited to mass courts,
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the court's internal...
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Meaning we don't want anything in the quaere
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or the other places for these kids.
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And that's my question is
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do you need even to go to expungement?
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The record exists right now, so I have to do something
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to make it disappear, you know, and I think that-
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You're not asking this court to do that
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in connection with this case.
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That would be your second step is what we're saying.
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Yeah, I mean, I don't know that the court,
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you know, has authority to order expungement as well
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because, you know, I think there's-
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But it's not what you're currently asking for.
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I'm currently asking the court
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to dismiss it as a first offense.
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So that gives me then the ability
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to follow the expungement statutes
267
00:12:59.913 --> 00:13:00.990
to ask for it be dismissed.
Right, and to the extent
268
00:13:00.990 --> 00:13:02.190
you might have issues with that,
269
00:13:02.190 --> 00:13:03.023
that would be a separate issue.
270
00:13:03.023 --> 00:13:05.790
Correct, so I'm looking at it as two steps.
271
00:13:05.790 --> 00:13:08.280
The first step is dismissed as acknowledgement
272
00:13:08.280 --> 00:13:09.180
that it should be dismissed
273
00:13:09.180 --> 00:13:11.400
as a first offense minor misdemeanor,
274
00:13:11.400 --> 00:13:13.140
and then return to juvenile court to say,
275
00:13:13.140 --> 00:13:17.280
this is the finding, this is the expungement statute
276
00:13:17.280 --> 00:13:19.470
that allows me to seek expungement.
277
00:13:19.470 --> 00:13:21.030
I think that would be the,
278
00:13:21.030 --> 00:13:23.407
you know, appropriate way to go about it.
279
00:13:23.407 --> 00:13:26.310
Where's your evidence or any facts
280
00:13:26.310 --> 00:13:28.290
to support the proposition
281
00:13:28.290 --> 00:13:30.850
that the Commonwealth will overcharge people
282
00:13:31.740 --> 00:13:35.340
given that this charge was supported by probable cause
283
00:13:35.340 --> 00:13:38.850
to get around the statute in the jurisdiction?
284
00:13:38.850 --> 00:13:42.330
I mean, I don't know that-
285
00:13:42.330 --> 00:13:43.730
You said it in your brief.
286
00:13:46.020 --> 00:13:50.910
So what the jury did is they protect against an overcharge
287
00:13:50.910 --> 00:13:52.740
you know, so-
Was this charge supported
288
00:13:52.740 --> 00:13:53.970
by probable cause?
289
00:13:53.970 --> 00:13:55.974
Yes, it was supported by probable cause.
290
00:13:55.974 --> 00:13:58.125
I mean, I was the trial attorney.
291
00:13:58.125 --> 00:14:01.202
I evaluated the, you know, police report and the facts.
292
00:14:01.202 --> 00:14:02.982
I didn't file a motion to dismiss
293
00:14:02.982 --> 00:14:05.640
'cause I believe it was supported by probable cause.
294
00:14:05.640 --> 00:14:07.320
And then we get to the different standard
295
00:14:07.320 --> 00:14:09.030
as it proved beyond a reasonable doubt.
296
00:14:09.030 --> 00:14:11.340
The same standard applied in Wallace W.
297
00:14:11.340 --> 00:14:14.970
is the first offense established beyond a reasonable doubt.
298
00:14:14.970 --> 00:14:17.580
And the jury found that-
299
00:14:17.580 --> 00:14:22.230
But you make this sweeping allegation essentially that...
300
00:14:22.230 --> 00:14:23.573
We have to do this 'cause the Commonwealth
301
00:14:23.573 --> 00:14:27.720
is just gonna overcharge people to get around Wallace W.
302
00:14:27.720 --> 00:14:28.560
in the statute.
303
00:14:28.560 --> 00:14:30.300
I don't know that I made that in my brief.
304
00:14:30.300 --> 00:14:31.939
There may have been-
305
00:14:31.939 --> 00:14:33.439
Maybe it's amicus brief.
306
00:14:33.439 --> 00:14:34.463
Yeah, the amicus brief.
307
00:14:34.463 --> 00:14:37.890
I mean, I don't have any data to support that,
308
00:14:37.890 --> 00:14:40.710
you know, the Commonwealth is consistently overcharging
309
00:14:40.710 --> 00:14:42.990
in order to get jurisdiction
310
00:14:42.990 --> 00:14:46.020
because it's a felony versus a minor misdemeanor.
311
00:14:46.020 --> 00:14:48.960
I think that the charges here were supported
312
00:14:48.960 --> 00:14:51.840
by probable cause, I did not file a motion dismiss.
313
00:14:51.840 --> 00:14:54.570
And I think the jury ultimately,
314
00:14:54.570 --> 00:14:56.310
you know, made that decision that no,
315
00:14:56.310 --> 00:14:57.510
this is not the felony.
316
00:14:57.510 --> 00:15:01.380
So the jury, in essence, protected against an overcharge.
317
00:15:01.380 --> 00:15:02.790
In a Wallace W. hearing,
318
00:15:02.790 --> 00:15:05.790
you could have the judge protect against an overcharge
319
00:15:05.790 --> 00:15:07.800
by deciding it beyond a reasonable doubt.
320
00:15:07.800 --> 00:15:10.590
Probable cause is not the standard.
321
00:15:10.590 --> 00:15:12.810
It's beyond a reasonable doubt.
322
00:15:12.810 --> 00:15:16.200
So I think, you know, those protections are built in,
323
00:15:16.200 --> 00:15:17.403
you know, to the system.
324
00:15:19.890 --> 00:15:22.410
And I see my time is up, so I will rest. Thank you.
325
00:15:22.410 --> 00:15:24.240
Very good. Thank you.
326
00:15:24.240 --> 00:15:27.153
Okay, Attorney (indistinct) Jang.
327
00:15:30.540 --> 00:15:32.490
Good morning. May it please the court.
328
00:15:32.490 --> 00:15:34.413
Kristin Jang for the Commonwealth.
329
00:15:35.460 --> 00:15:37.620
This case was presented
330
00:15:37.620 --> 00:15:40.590
as a subject matter jurisdictional issue,
331
00:15:40.590 --> 00:15:43.620
I think appropriately based on this court's precedent,
332
00:15:43.620 --> 00:15:47.490
particularly in Nick N. which reached the question of
333
00:15:47.490 --> 00:15:50.310
when this issue can be raised
334
00:15:50.310 --> 00:15:52.230
and whether it can be waived at any point.
335
00:15:52.230 --> 00:15:54.150
And clearly, because this is an issue
336
00:15:54.150 --> 00:15:57.780
of subject matter jurisdiction, it cannot be waived.
337
00:15:57.780 --> 00:16:02.160
However, the legislature clearly conferred jurisdiction
338
00:16:02.160 --> 00:16:05.910
on the juvenile court over cases in which,
339
00:16:05.910 --> 00:16:09.270
based on the application for criminal complaint,
340
00:16:09.270 --> 00:16:12.060
a felony or a major misdemeanor charge
341
00:16:12.060 --> 00:16:13.697
is supported by probable cause.
342
00:16:13.697 --> 00:16:17.070
Would you agree that based upon the statute
343
00:16:17.070 --> 00:16:20.520
after the jury came, comes back with a less included offense
344
00:16:20.520 --> 00:16:25.023
that the juvenile is no longer a delinquent child?
345
00:16:29.130 --> 00:16:31.980
I think whether or not the juvenile is a delinquent child
346
00:16:31.980 --> 00:16:34.740
would have to go back to the complaint.
347
00:16:34.740 --> 00:16:35.573
Because whenever we're looking-
348
00:16:35.573 --> 00:16:38.220
Well, if we go to the definition of delinquent child,
349
00:16:38.220 --> 00:16:41.850
it's in section 52, you would agree that
350
00:16:41.850 --> 00:16:44.910
this juvenile no longer meets that definition?
351
00:16:44.910 --> 00:16:47.970
It's true that that child no longer meets the definition
352
00:16:47.970 --> 00:16:50.640
but when we're looking at questions of jurisdiction,
353
00:16:50.640 --> 00:16:53.880
I was unable to find any precedent showing that
354
00:16:53.880 --> 00:16:56.160
based on the disposition of the case
355
00:16:56.160 --> 00:16:57.900
determines jurisdiction.
356
00:16:57.900 --> 00:17:00.180
Well, jurisdiction can be raised at any time.
357
00:17:00.180 --> 00:17:01.013
That's true.
So the court can
358
00:17:01.013 --> 00:17:03.810
have jurisdiction initially and then lose it somewhere
359
00:17:03.810 --> 00:17:04.710
along the way.
360
00:17:04.710 --> 00:17:06.300
That's true. That's very true.
361
00:17:06.300 --> 00:17:08.490
And here the delinquent child is defined
362
00:17:08.490 --> 00:17:11.790
as somebody who commits, you know,
363
00:17:11.790 --> 00:17:14.640
the various offenses and not a minor misdemeanor.
364
00:17:14.640 --> 00:17:18.210
And here the jury said minor misdemeanor.
365
00:17:18.210 --> 00:17:21.810
That's true, but again, I was unable to find
366
00:17:21.810 --> 00:17:24.810
any sort of precedent showing that
367
00:17:24.810 --> 00:17:27.630
the final and ultimate disposition of a case
368
00:17:27.630 --> 00:17:31.833
can affect subject matter jurisdiction, so for example-
369
00:17:32.790 --> 00:17:34.590
Do you need one?
370
00:17:34.590 --> 00:17:36.990
I mean, if you're following the math of Justice Wendlandt
371
00:17:36.990 --> 00:17:39.840
in saying that subject matter jurisdiction
372
00:17:39.840 --> 00:17:42.810
can be lost at any point, it's not waived.
373
00:17:42.810 --> 00:17:44.857
So why do we need a case to say,
374
00:17:44.857 --> 00:17:47.430
"At some point, if there's an adjudication
375
00:17:47.430 --> 00:17:49.380
where he's no longer a delinquent child,
376
00:17:49.380 --> 00:17:52.560
the court no longer has statutory authority."
377
00:17:52.560 --> 00:17:54.840
Why do we need a case to say that
378
00:17:54.840 --> 00:17:57.360
when it seems to be pretty self-evident?
379
00:17:57.360 --> 00:17:59.700
Well, I'm not sure, so for example, if this was,
380
00:17:59.700 --> 00:18:01.950
if the jury came back not delinquent,
381
00:18:01.950 --> 00:18:03.240
I don't believe that means that
382
00:18:03.240 --> 00:18:07.050
the court doesn't have jurisdiction over this child.
383
00:18:07.050 --> 00:18:08.767
It's just that that's the ultimate disposition in the case.
384
00:18:08.767 --> 00:18:10.590
Sure, but that's another case.
385
00:18:10.590 --> 00:18:12.420
I'm talking about this case.
Sure.
386
00:18:12.420 --> 00:18:14.760
So in this case, is there any real debate
387
00:18:14.760 --> 00:18:19.620
that once the jury verdict came back, that that's it
388
00:18:19.620 --> 00:18:23.673
for at least this case, this child, in this court?
389
00:18:24.960 --> 00:18:25.980
So I do wanna clarify.
390
00:18:25.980 --> 00:18:28.710
I don't think this court has reached this particular issue.
391
00:18:28.710 --> 00:18:31.950
So I do wanna go back to a comment that was made
392
00:18:31.950 --> 00:18:34.260
on footnote eight in Nick N.
393
00:18:34.260 --> 00:18:36.840
So in that prior case, I do wanna clarify that
394
00:18:36.840 --> 00:18:40.330
that involved a major misdemeanor, I believe, or a felony
395
00:18:41.640 --> 00:18:45.000
and a minor misdemeanor that occurred subsequent.
396
00:18:45.000 --> 00:18:47.190
So it was two completely separate instances.
397
00:18:47.190 --> 00:18:48.870
So I believe this is the first time
398
00:18:48.870 --> 00:18:51.090
that this court has reached this particular issue
399
00:18:51.090 --> 00:18:53.580
that it was charged as a felony
400
00:18:53.580 --> 00:18:55.440
and came back as a lesser included.
401
00:18:55.440 --> 00:18:58.440
But isn't this case even easier then
402
00:18:58.440 --> 00:19:03.440
because it was one act and the result is
403
00:19:05.340 --> 00:19:07.380
a minor misdemeanor.
404
00:19:07.380 --> 00:19:08.571
What do you wanna have happen?
405
00:19:08.571 --> 00:19:12.300
I'm just trying to figure out what the Commonwealth wants.
406
00:19:12.300 --> 00:19:14.910
The Commonwealth is seeking for the juvenile court
407
00:19:14.910 --> 00:19:18.840
to maintain jurisdiction over this case in order to-
408
00:19:18.840 --> 00:19:20.160
For what purpose?
409
00:19:20.160 --> 00:19:21.985
To sentence on the charge
410
00:19:21.985 --> 00:19:23.257
the jury ultimately came back with.
411
00:19:23.257 --> 00:19:28.173
How would that be consistent with the Criminal Reform Act?
412
00:19:29.640 --> 00:19:32.100
It's consistent because there was probable cause
413
00:19:32.100 --> 00:19:35.343
to support a felony in this case so based on-
414
00:19:38.022 --> 00:19:40.170
We rejected that in Wallace W.
415
00:19:40.170 --> 00:19:42.660
Probable cause is not enough.
416
00:19:42.660 --> 00:19:46.360
It's enough to get you started but once it's proven
417
00:19:47.580 --> 00:19:51.630
this is a minor misdemeanor and you can't sentence on it.
418
00:19:51.630 --> 00:19:55.200
I mean, I just don't get what you're gonna accomplish.
419
00:19:55.200 --> 00:19:56.310
Well, the conduct at issue,
420
00:19:56.310 --> 00:19:58.950
there was probable cause to charge the felony.
421
00:19:58.950 --> 00:20:03.950
So in Wallace W. it had to do with more minor misconduct.
422
00:20:04.680 --> 00:20:06.780
And I don't think the legislature intended
423
00:20:06.780 --> 00:20:11.520
for cases charging more serious misconduct to go to trial
424
00:20:11.520 --> 00:20:13.530
and then have the court lose jurisdiction
425
00:20:13.530 --> 00:20:16.800
based on the disposition that either the jury
426
00:20:16.800 --> 00:20:19.020
or the judge comes back with.
427
00:20:19.020 --> 00:20:20.100
This also prevents-
428
00:20:20.100 --> 00:20:22.300
If the Commonwealth had originally charged
429
00:20:26.190 --> 00:20:30.660
both the greater offense and the lesser included offense,
430
00:20:30.660 --> 00:20:35.040
so from the start, what would've happened with respect
431
00:20:35.040 --> 00:20:37.233
to the lesser included offense?
432
00:20:38.820 --> 00:20:43.820
It would have gone to a Wallace W. hearing, right?
433
00:20:44.160 --> 00:20:47.221
Well, in this case, because it's the same-
434
00:20:47.221 --> 00:20:49.500
From the start you had-
Right
435
00:20:49.500 --> 00:20:51.480
because it's the same incident.
436
00:20:51.480 --> 00:20:53.670
Yes, what would've happened in your view?
437
00:20:53.670 --> 00:20:58.670
In my view, I would have to go to the procedural rule.
438
00:20:58.890 --> 00:21:02.703
So the application would come before the clerk,
439
00:21:03.701 --> 00:21:06.857
the lesser included would have to be dismissed at that point
440
00:21:06.857 --> 00:21:08.850
'cause there's no prior record
Because it was the first.
441
00:21:08.850 --> 00:21:13.620
Okay, so as soon as the Commonwealth suggested to the judge
442
00:21:13.620 --> 00:21:17.610
that there would be a need to charge
443
00:21:17.610 --> 00:21:22.610
on the lesser included offense, why isn't that not...
444
00:21:23.460 --> 00:21:26.160
And then the judge does so instruct the jury
445
00:21:26.160 --> 00:21:28.470
and the Commonwealth doesn't object,
446
00:21:28.470 --> 00:21:31.740
why is that not the functional equivalent
447
00:21:31.740 --> 00:21:35.310
of what I just hypothesized?
448
00:21:35.310 --> 00:21:38.460
In other words, it's almost like the functional equivalent
449
00:21:38.460 --> 00:21:41.160
of amending the charges so that both charges
450
00:21:41.160 --> 00:21:42.513
are now in the case.
451
00:21:43.980 --> 00:21:46.660
I understand the hypothetical but also
452
00:21:48.630 --> 00:21:51.510
if the juvenile court loses jurisdiction,
453
00:21:51.510 --> 00:21:54.390
if there's an adjudication on the lesser included,
454
00:21:54.390 --> 00:21:58.020
did the juvenile court even have the authority
455
00:21:58.020 --> 00:21:59.730
to instruct in the lesser included?
456
00:21:59.730 --> 00:22:02.086
Maybe not, I'm saying it might have been
457
00:22:02.086 --> 00:22:06.390
as soon as the Commonwealth interjected this possibility
458
00:22:06.390 --> 00:22:10.560
into the case or maybe at the latest
459
00:22:10.560 --> 00:22:15.560
once they did not object to the judge instructing on that,
460
00:22:18.300 --> 00:22:21.340
it seems to me that it's at that point
461
00:22:23.490 --> 00:22:26.590
that there needs to be either
462
00:22:28.590 --> 00:22:32.100
a Wallace W. type hearing to determine whether that's
463
00:22:32.100 --> 00:22:34.200
the first minor misdemeanor
464
00:22:34.200 --> 00:22:37.830
with which this juvenile has ever been charged,
465
00:22:37.830 --> 00:22:42.660
or what happened here, which is what your brother is calling
466
00:22:42.660 --> 00:22:45.750
the functional equivalent of a Wallace W. hearing
467
00:22:45.750 --> 00:22:48.630
where we determine it was the first one,
468
00:22:48.630 --> 00:22:53.250
and he was adjudicated delinquent of it.
469
00:22:53.250 --> 00:22:57.840
But at some point in there, it seems to me that
470
00:22:57.840 --> 00:23:02.840
the Commonwealth has precipitated in some way the question
471
00:23:07.080 --> 00:23:10.410
about whether there's jurisdiction over that charge.
472
00:23:10.410 --> 00:23:12.870
Well, the issue here is that the juvenile requested
473
00:23:12.870 --> 00:23:17.870
the lesser included so it would be difficult for us to say
474
00:23:18.210 --> 00:23:22.110
that he wasn't entitled to it if his defense was,
475
00:23:22.110 --> 00:23:24.510
you know, this was, this was the lesser included
476
00:23:25.440 --> 00:23:27.750
based on how the victim's testimony came out.
477
00:23:27.750 --> 00:23:30.930
So this is why, because this is raised
478
00:23:30.930 --> 00:23:33.870
as a jurisdictional issue, it becomes very complicated
479
00:23:33.870 --> 00:23:37.620
because then does the court even have the ability
480
00:23:37.620 --> 00:23:38.923
to instruct on the lesser included if they never had-
481
00:23:38.923 --> 00:23:42.840
Maybe not, but then so how does that help you though?
482
00:23:42.840 --> 00:23:46.800
If that's true, how does that help in this case?
483
00:23:46.800 --> 00:23:50.340
Because it means that the court still has jurisdiction
484
00:23:50.340 --> 00:23:52.920
even if the jury comes back with the lesser included.
485
00:23:52.920 --> 00:23:54.300
Well, the judge has an obligation
486
00:23:54.300 --> 00:23:55.470
to instruct on the lesser included.
487
00:23:55.470 --> 00:23:58.710
Right, so that's what makes this very complicated.
488
00:23:58.710 --> 00:24:01.710
Well, then you get your Wallace W. hearing like it or not.
489
00:24:02.820 --> 00:24:04.890
I mean, it's not the most efficient,
490
00:24:04.890 --> 00:24:08.340
I mean, obviously to have a trial
491
00:24:08.340 --> 00:24:10.833
and through all the litigation and discovery,
492
00:24:11.983 --> 00:24:14.100
we we always talk about judicial economy.
493
00:24:14.100 --> 00:24:16.260
This would be the complete opposite of that.
494
00:24:16.260 --> 00:24:19.800
But nevertheless, you know, it makes everybody have to be
495
00:24:19.800 --> 00:24:23.880
a little bit more careful about what they do
496
00:24:23.880 --> 00:24:27.600
on the charging, the applications when they come in.
497
00:24:27.600 --> 00:24:28.800
It just makes everybody have to
498
00:24:28.800 --> 00:24:30.360
pay more attention, doesn't it?
499
00:24:30.360 --> 00:24:32.490
Sure, I also want to raise this court
500
00:24:32.490 --> 00:24:34.650
that the victim testified in this case.
501
00:24:34.650 --> 00:24:36.900
So, you know, it could come down
502
00:24:36.900 --> 00:24:39.270
and I think it did in this case
503
00:24:39.270 --> 00:24:41.430
just how the victims testimony came out,
504
00:24:41.430 --> 00:24:43.710
what the jury decided to do with that testimony.
505
00:24:43.710 --> 00:24:47.040
So I do want to raise the fact that this is going to mean
506
00:24:47.040 --> 00:24:49.770
that a victim, potentially multiple victims,
507
00:24:49.770 --> 00:24:52.080
potentially children would have to come in and testify,
508
00:24:52.080 --> 00:24:55.140
and then the court would ultimately lose jurisdiction
509
00:24:55.140 --> 00:24:56.940
if it comes out a particular way.
510
00:24:56.940 --> 00:24:59.190
And so what? What's your point?
511
00:24:59.190 --> 00:25:00.113
I guess I'm trying to figure out,
512
00:25:00.113 --> 00:25:02.820
because the legislature has decided
513
00:25:02.820 --> 00:25:04.770
that children deserve a second chance
514
00:25:04.770 --> 00:25:06.540
and that's what all the jurisprudence about,
515
00:25:06.540 --> 00:25:08.220
that's what the statute's about,
516
00:25:08.220 --> 00:25:13.220
and, you know, yeah, there will be lost resources
517
00:25:14.580 --> 00:25:18.870
expended unfortunately as Justice George's points out
518
00:25:18.870 --> 00:25:20.700
in getting to this final result.
519
00:25:20.700 --> 00:25:23.980
But the policy decision has been made by the legislature
520
00:25:25.020 --> 00:25:27.600
that children deserve a second chance.
521
00:25:27.600 --> 00:25:32.600
You know, in terms of weighing, you know, which is worse,
522
00:25:34.680 --> 00:25:36.300
the legislature has already said
523
00:25:36.300 --> 00:25:38.340
we wanna give children a second chance.
524
00:25:38.340 --> 00:25:41.220
So if it takes more time to do it
525
00:25:41.220 --> 00:25:43.530
and a jury needs to be in panel, so be it.
526
00:25:43.530 --> 00:25:46.260
And just in connection with that, I think you argued that
527
00:25:46.260 --> 00:25:50.010
the legislature didn't intend for this outcome.
528
00:25:50.010 --> 00:25:50.843
Yes.
529
00:25:51.900 --> 00:25:53.350
Where do you get that from?
530
00:25:54.390 --> 00:25:58.410
From this court's prior decisions discussing
531
00:25:58.410 --> 00:26:03.410
the intent to prevent cases moving forward
532
00:26:03.930 --> 00:26:07.440
on minor misconduct or-
533
00:26:07.440 --> 00:26:10.200
So once it's already left the gate,
534
00:26:10.200 --> 00:26:11.400
then it has to keep going?
535
00:26:11.400 --> 00:26:12.753
I don't understand that.
536
00:26:14.100 --> 00:26:17.130
Like, if we made, "Oops, we shouldn't have let this one go."
537
00:26:17.130 --> 00:26:20.880
It turns out, yeah, I don't understand your logic there.
538
00:26:20.880 --> 00:26:24.150
All of this court's jurisprudence has discussed
539
00:26:24.150 --> 00:26:26.490
a second chance for minor misconduct.
540
00:26:26.490 --> 00:26:29.220
This was again, and I'm sorry to repeat myself,
541
00:26:29.220 --> 00:26:31.890
but there was probable cause for a felony in this case-
542
00:26:31.890 --> 00:26:33.240
But ultimately it turned out
543
00:26:33.240 --> 00:26:35.283
that it was a misdemeanor.
Minor.
544
00:26:36.120 --> 00:26:38.073
At a higher quantum of proof.
545
00:26:39.120 --> 00:26:40.890
That is correct.
546
00:26:40.890 --> 00:26:43.290
But I'm not sure that the legislature intended
547
00:26:43.290 --> 00:26:45.900
for the victim to come in and testify.
548
00:26:45.900 --> 00:26:47.550
And we're not sure why the jury-
549
00:26:47.550 --> 00:26:49.860
Or probably for the defendant to go through
550
00:26:49.860 --> 00:26:52.200
this entire jury trial.
551
00:26:52.200 --> 00:26:53.730
Right, so you know, I guess, you know,
552
00:26:53.730 --> 00:26:58.730
I'm just confused as to the point of the witness testifying.
553
00:26:59.220 --> 00:27:02.880
I think the legislature wanted it to be determined ex ante.
554
00:27:02.880 --> 00:27:05.400
In this case, everybody had to go through
555
00:27:05.400 --> 00:27:08.130
an entire jury trial to get to the result,
556
00:27:08.130 --> 00:27:11.700
which is that this child gets to a second chance.
557
00:27:11.700 --> 00:27:15.900
Sure, I just wanna emphasize that I do not believe
558
00:27:15.900 --> 00:27:19.230
the legislature intended for us to look beyond
559
00:27:19.230 --> 00:27:21.240
the application for criminal complaint
560
00:27:21.240 --> 00:27:22.410
when we're determining whether-
561
00:27:22.410 --> 00:27:23.280
Already been that.
562
00:27:23.280 --> 00:27:24.300
We've been through that
563
00:27:24.300 --> 00:27:26.640
and you've lost that battle previously, right?
564
00:27:26.640 --> 00:27:31.290
So again, I'm coming back to your last thing.
565
00:27:31.290 --> 00:27:36.290
You seem to want the judge to sentence on this
566
00:27:36.630 --> 00:27:41.630
even though it's a first offense minor misdemeanor.
567
00:27:43.740 --> 00:27:45.300
That makes no sense to me.
568
00:27:45.300 --> 00:27:48.330
I just don't know why you keep pushing that point.
569
00:27:48.330 --> 00:27:52.020
Tell me why that's a consistent with the,
570
00:27:52.020 --> 00:27:53.490
as Justice Wendlandt said,
571
00:27:53.490 --> 00:27:57.240
the legislature wants to give these kids a second chance.
572
00:27:57.240 --> 00:27:59.970
So what's the point of sentencing
573
00:27:59.970 --> 00:28:02.910
when you can't sentence them to anything
574
00:28:02.910 --> 00:28:05.103
and it's gonna be expunged probably.
575
00:28:06.300 --> 00:28:08.370
What are we doing?
576
00:28:08.370 --> 00:28:11.253
Well, I do think the legislature,
577
00:28:12.700 --> 00:28:15.150
looking at the type of conduct
578
00:28:15.150 --> 00:28:17.610
especially that's at issue here,
579
00:28:17.610 --> 00:28:19.920
I'm not sure that the legislature intended
580
00:28:19.920 --> 00:28:22.890
for the juvenile court to completely lose authority
581
00:28:22.890 --> 00:28:25.230
over a kid like this to be-
582
00:28:25.230 --> 00:28:26.063
I get it.
583
00:28:26.063 --> 00:28:30.150
If the jury had come back and said this kid did the felony,
584
00:28:30.150 --> 00:28:34.440
the legislature wants him sentenced and punished,
585
00:28:34.440 --> 00:28:36.060
but the jury didn't do that,
586
00:28:36.060 --> 00:28:38.373
it came back with a minor misdemeanor.
587
00:28:41.302 --> 00:28:45.330
I think we may be talking across purposes here perhaps.
588
00:28:45.330 --> 00:28:47.010
Maybe I'm mistaken,
589
00:28:47.010 --> 00:28:50.520
but hasn't the juvenile already completed the sentence?
590
00:28:50.520 --> 00:28:52.200
Yes.
Okay.
591
00:28:52.200 --> 00:28:54.720
And would you agree, as far as legislative intent goes,
592
00:28:54.720 --> 00:28:56.910
we don't know one way or the other whether or not
593
00:28:56.910 --> 00:29:00.720
the legislature contemplated this unusual circumstance.
594
00:29:00.720 --> 00:29:01.560
Correct?
That is true.
595
00:29:01.560 --> 00:29:04.410
But the only thing we do know is that the legislature
596
00:29:04.410 --> 00:29:07.890
intended that people that are first offenders
597
00:29:07.890 --> 00:29:10.740
for minor misdemeanors not be
598
00:29:10.740 --> 00:29:12.340
found to be delinquent children.
599
00:29:13.440 --> 00:29:15.240
Yes, that is true.
600
00:29:15.240 --> 00:29:18.060
Can I ask you a question about expungement?
601
00:29:18.060 --> 00:29:22.110
Is that your opposing counsel had suggested
602
00:29:22.110 --> 00:29:26.670
that would be a second step should you lose on appeal?
603
00:29:26.670 --> 00:29:27.820
Do you agree with that?
604
00:29:28.655 --> 00:29:30.750
To be quite frank with you,
605
00:29:30.750 --> 00:29:33.780
I'm not as well versed in the expungement rules,
606
00:29:33.780 --> 00:29:36.810
but I would assume that that would be the next step.
607
00:29:36.810 --> 00:29:40.920
Yes, if the sentence is vacated
608
00:29:40.920 --> 00:29:43.710
and there's some sort of judgment
609
00:29:43.710 --> 00:29:45.870
that this is a Wallace W. first offense,
610
00:29:45.870 --> 00:29:48.813
Yes, I would assume that that would be the next step.