-: SJC-13566 in the matter of an impounded case.
-: Okay. Attorney Anderson.
-: Good morning. Brian Anderson for the juvenile appellant.
May it please the court.
A distinctive feature of the juvenile court
is that it has limited jurisdiction.
Now, of course, limited by age,
but also limited by offense, limited by charge.
And the legislature has clearly defined
when the juvenile court has jurisdiction,
but also when it does not have jurisdiction.
The juvenile court does not have jurisdiction
over a first offense minor misdemeanor.
Now, this court has elaborated on
the different paths to arrive at a dismissal
as a first offense minor misdemeanor.
This case creates another path
to dismissal as a first offense minor misdemeanor.
Now it's a quirky path.
It's a path that may not arise very often,
but it's a path that is rooted
in basic principles of jurisdiction.
Jurisdiction is not a flexible concept.
-: If it's not a flexible concept,
the court did have jurisdiction up through the trial, right?
-: Correct.
The court had jurisdiction up until the point
that the jury determined that it was a minor misdemeanor.
Now, in that situation, because it's a minor misdemeanor,
we then look to, does the juvenile have any prior offenses
that would not make it a first offense minor misdemeanor?
So this is the rare situation where
the juvenile court has...
It's filed as a felony.
The juvenile court has jurisdiction over that felony,
whether it's his first felony or his fifth felony.
They have jurisdiction.
They maintain jurisdiction up until the jury says
he's guilty of a first offense minor misdemeanor.
-: Do you think that jurisdiction is actually
the correct concept for this?
It's not personal jurisdiction obviously.
It may not even be subject matter jurisdiction
because if it were the second time a juvenile were charged
with the same offense,
the court would have subject matter jurisdiction.
Subject matter is within the jurisdiction of the court.
So what kind of jurisdiction is this?
-: Well, this I believe will be subject matter jurisdiction.
So the legislature says, you know, the legislature defined
where the juvenile court again has jurisdiction,
where it does not.
-: Right, so you think it's subject matter jurisdiction
over the first minor misdemeanor.
-: Correct. -: But not any other
or any subsequent minor misdemeanor?
Why isn't it just authority? Statutory authority?
-: So the juvenile court has the authority
to hear essentially anything but
a first offense minor misdemeanor.
So it's a first offense minor misdemeanor-
Wolohojian: And therefore they have no authority?
-: Correct. That's what the situation is.
Now, it's odd because the situation didn't arise
until the jury gives its verdict.
Wolohojian: Sure, so they may lose their authority?
-: Correct. -: Right.
It may be a purely academic concern
about why we call this jurisdiction
as opposed to a statutory authority.
-: But we've called it jurisdiction.
We've done this three times already.
-: Correct. -: Isn't this controlled by
express language In our cases?
I'm just looking at footnote eight in Nick N.
If a greater charge proceeded to trial and was not proved,
the minor misdemeanor charge would be
a first offense subject to dismissal.
Isn't it clear this is dismissed
and the only recording of this is in mass courts
to establish that we now have a first misdemeanor.
Anderson: Yes, I agree.
-: It seems like we've done this and explain what we're-
-: I agree, so I what I think essentially
the jury trial functioned at as a Wallace W. hearing
so the minor misdemeanor was proved beyond
a reasonable doubt.
So now he gets the benefit of the dismissal
because it's his first minor misdemeanor.
Now going forward, jurisdiction has been established-
-: And we keep track of it in mass courts,
but we don't keep a record.
I'm just trying to understand precisely what occurs now.
My understanding is, at least at this point is,
okay, they were perfectly allowed
to proceed with the felony.
It's been disproven. We now have a first misdemeanor.
And the way we have explained that,
that means it's kept track of in mass courts,
but it's not kept as a record otherwise.
Isn't that clear from the three cases we've done on this?
-: Yes, I 100% agree with that.
The I guess difference in what actually happened
in this case is that a record was created,
a board of probation record was created.
So right now the juvenile has a quaere,
court activity record information that says
jury trial, guilty, CWOF, dismissed.
That's a record that is available
to court, law enforcement, prosecutors going forward.
That's not what the legislature contemplated.
So what the legislature contemplated was,
you know, you get a first shot,
you commit that first offense minor misdemeanor.
It's noted in mass court
so the court is aware this juvenile already has
a first admits minor misdemeanor.
Jurisdiction has been established
but there's no other record of it.
-: So what do you want to have happen exactly?
I'm just trying to make sure I understand
what you want to happen.
-: What I think should happen is that the case should be note
dismissed as a first offense minor misdemeanor
and the notation is made in mass court that,
you know, he has had the benefit
of a dismissal first offense.
I'm not exactly clear.
You know, there's a distinction
between dismissal as a first offense
without a Wallace W. hearing versus one that has gone
to a Wallace W. hearing.
Essentially, this jury trial functions as
that Wallace W. hearing to establish jurisdiction
so that if there is a subsequent
first offense minor misdemeanor trespass disorderly conduct,
the court- -: But it seems like the...
-: Sorry. -: No, please go ahead.
-: It seems like the only dispute is
what should happen to the court records of this case?
Meaning that it started as a felony
and ended up as a first degree murder
and what happens to that documentation?
Is that right or am I misunderstanding?
-: May I ask a follow up question? It may be-
-: Yeah, so I think it should be noted in mass courts
that it was dismissed as a first offense minor misdemeanor.
Kafker: Part's the easy part.
I think the harder part is the court records themselves.
Do they just disappear or what happens?
-: No, I mean, my understanding is that
the court re the court has a record
that the minor misdemeanor has been proven
and jurisdiction has been established going forward.
So that if a subsequent complaint
for a minor misdemeanor was filed,
jurisdiction has been established
and there's no need to, you know, notify the Commonwealth
that we need to have a Wallace W. hearing
to establish jurisdiction.
-: I'm wondering, try the following on for size
and see if what you think of it.
We would need to vacate the sentence.
-: Correct. -: Remand with an instruction
that the minor misdemeanor be dismissed
on jurisdictional grounds.
-: Correct, dismissed
as a first offense. -: And there's nothing
that happens with respect to the acquittal
on the greater offense that-
-: I mean, I think so, yes.
I mean, again, it's a quirky situation.
I think the, you know, appropriate thing in mass court
and how it's noted in the- -: It was charged
and there was a jury verdict.
I mean, do you think that there's something we could do
about that at this point?
-: No, I mean, I think really what the court...
The court can't change the fact that he was charged with-
-: And acquitted. -: Open and gross-
and lascivious behavior.
-: So is what I just recited
the remedy that you would be looking for
as a result of this appeal?
-: Yes, so just so I just wanna make sure
we're on the same page.
Wolohojian: Right, we're trying to understand
what your position is with respect to the remedy.
-: You know, vacating the sentence of a continuance
without a finding, dismissing the case
as a first offense minor misdemeanor.
Wolohojian: A minor misdemeanor.
-: And then however the juvenile court notes it
in mass courts so that the first offense minor misdemeanor
has been proven.
That's how it should end. And then-
-: But you're still not getting the Justice Kafker's points
what I still share.
Okay, we're talking about two very different things.
I'm not talking about how it's noted in mass courts.
You are mentioning what happens on the quarry,
the external board of probation,
the commissioner of probation's records, okay?
That's what I'd like to get to because they're not a party.
I don't even know if they have a position on this.
But what happens in a situation like this
where now we say there was no statutory authority
in the first place, but yet it's already noted
by virtue of the arraignment of that charge?
Because ultimately following your logic,
this was the first strike that the legislature intended
for no one to know about outside of the internal ecosystem
of the Massachusetts Court System.
So in terms of your remedy,
is there something else that you are looking for
for us to direct the commissioner of probation to do?
That's what I'm interested in.
-: No, I understand the question and I can give you
my opinion how I would plan on handling it.
I would do a motion to expunge in juvenile court.
-: That that's what I was gonna ask. If that's the remedy-
-: I think I would have to do a separate motion
to expunge in juvenile court
based on the expungement statute.
You know, I'm not asking this court to say expunge it.
I mean, I'm asking for this court to say,
you know, dismiss it as a first offense.
I believe that would then give me the remedy of going to
ask that it be expunged in the juvenile court
because, you know, a dismissal as a first offense-
-: Can I just ask, because I have the exact same concern
as Justice George, but I'm wondering
whether you can go one step further though,
which is, I mean, the legislature did not want
any record kept of first misdemeanors,
whatever they're called, these minor misdemeanors.
I just don't know but I understand the expungement remedy,
but I'm wondering whether you even need to go there.
But I have the same concern Justice George's
which is, it's just not clear.
-: So I think, again, the remedy that this court could give
is an acknowledgement that it should be dismissed
as a first offense minor misdemeanor.
-: I'm just looking at footnote eight.
Okay, I'm looking at footnote eight in Wallace W.
When such a charge is dismissed as a first offense,
record keeping regarding the juvenile
shall therefore be limited to mass courts,
the court's internal...
Meaning we don't want anything in the quaere
or the other places for these kids.
And that's my question is
do you need even to go to expungement?
-: The record exists right now, so I have to do something
to make it disappear, you know, and I think that-
-: You're not asking this court to do that
in connection with this case.
That would be your second step is what we're saying.
-: Yeah, I mean, I don't know that the court,
you know, has authority to order expungement as well
because, you know, I think there's-
-: But it's not what you're currently asking for.
-: I'm currently asking the court
to dismiss it as a first offense.
So that gives me then the ability
to follow the expungement statutes
to ask for it be dismissed. -: Right, and to the extent
you might have issues with that,
that would be a separate issue.
-: Correct, so I'm looking at it as two steps.
The first step is dismissed as acknowledgement
that it should be dismissed
as a first offense minor misdemeanor,
and then return to juvenile court to say,
this is the finding, this is the expungement statute
that allows me to seek expungement.
I think that would be the,
you know, appropriate way to go about it.
-: Where's your evidence or any facts
to support the proposition
that the Commonwealth will overcharge people
given that this charge was supported by probable cause
to get around the statute in the jurisdiction?
Anderson: I mean, I don't know that-
-: You said it in your brief.
-: So what the jury did is they protect against an overcharge
you know, so- -: Was this charge supported
by probable cause?
-: Yes, it was supported by probable cause.
I mean, I was the trial attorney.
I evaluated the, you know, police report and the facts.
I didn't file a motion to dismiss
'cause I believe it was supported by probable cause.
And then we get to the different standard
as it proved beyond a reasonable doubt.
The same standard applied in Wallace W.
is the first offense established beyond a reasonable doubt.
And the jury found that-
-: But you make this sweeping allegation essentially that...
We have to do this 'cause the Commonwealth
is just gonna overcharge people to get around Wallace W.
in the statute.
-: I don't know that I made that in my brief.
There may have been-
Kafker: Maybe it's amicus brief.
-: Yeah, the amicus brief.
I mean, I don't have any data to support that,
you know, the Commonwealth is consistently overcharging
in order to get jurisdiction
because it's a felony versus a minor misdemeanor.
I think that the charges here were supported
by probable cause, I did not file a motion dismiss.
And I think the jury ultimately,
you know, made that decision that no,
this is not the felony.
So the jury, in essence, protected against an overcharge.
In a Wallace W. hearing,
you could have the judge protect against an overcharge
by deciding it beyond a reasonable doubt.
Probable cause is not the standard.
It's beyond a reasonable doubt.
So I think, you know, those protections are built in,
you know, to the system.
And I see my time is up, so I will rest. Thank you.
-: Very good. Thank you.
Okay, Attorney (indistinct) Jang.
-: Good morning. May it please the court.
Kristin Jang for the Commonwealth.
This case was presented
as a subject matter jurisdictional issue,
I think appropriately based on this court's precedent,
particularly in Nick N. which reached the question of
when this issue can be raised
and whether it can be waived at any point.
And clearly, because this is an issue
of subject matter jurisdiction, it cannot be waived.
However, the legislature clearly conferred jurisdiction
on the juvenile court over cases in which,
based on the application for criminal complaint,
a felony or a major misdemeanor charge
is supported by probable cause.
-: Would you agree that based upon the statute
after the jury came, comes back with a less included offense
that the juvenile is no longer a delinquent child?
-: I think whether or not the juvenile is a delinquent child
would have to go back to the complaint.
Because whenever we're looking-
-: Well, if we go to the definition of delinquent child,
it's in section 52, you would agree that
this juvenile no longer meets that definition?
-: It's true that that child no longer meets the definition
but when we're looking at questions of jurisdiction,
I was unable to find any precedent showing that
based on the disposition of the case
determines jurisdiction.
-: Well, jurisdiction can be raised at any time.
-: That's true. -: So the court can
have jurisdiction initially and then lose it somewhere
along the way.
Jang: That's true. That's very true.
-: And here the delinquent child is defined
as somebody who commits, you know,
the various offenses and not a minor misdemeanor.
And here the jury said minor misdemeanor.
-: That's true, but again, I was unable to find
any sort of precedent showing that
the final and ultimate disposition of a case
can affect subject matter jurisdiction, so for example-
-: Do you need one?
I mean, if you're following the math of Justice Wendlandt
in saying that subject matter jurisdiction
can be lost at any point, it's not waived.
So why do we need a case to say,
"At some point, if there's an adjudication
where he's no longer a delinquent child,
the court no longer has statutory authority."
Why do we need a case to say that
when it seems to be pretty self-evident?
-: Well, I'm not sure, so for example, if this was,
if the jury came back not delinquent,
I don't believe that means that
the court doesn't have jurisdiction over this child.
It's just that that's the ultimate disposition in the case.
-: Sure, but that's another case.
I'm talking about this case. -: Sure.
-: So in this case, is there any real debate
that once the jury verdict came back, that that's it
for at least this case, this child, in this court?
-: So I do wanna clarify.
I don't think this court has reached this particular issue.
So I do wanna go back to a comment that was made
on footnote eight in Nick N.
So in that prior case, I do wanna clarify that
that involved a major misdemeanor, I believe, or a felony
and a minor misdemeanor that occurred subsequent.
So it was two completely separate instances.
So I believe this is the first time
that this court has reached this particular issue
that it was charged as a felony
and came back as a lesser included.
-: But isn't this case even easier then
because it was one act and the result is
a minor misdemeanor.
What do you wanna have happen?
I'm just trying to figure out what the Commonwealth wants.
-: The Commonwealth is seeking for the juvenile court
to maintain jurisdiction over this case in order to-
Kafker: For what purpose?
-: To sentence on the charge
the jury ultimately came back with.
-: How would that be consistent with the Criminal Reform Act?
-: It's consistent because there was probable cause
to support a felony in this case so based on-
-: We rejected that in Wallace W.
Probable cause is not enough.
It's enough to get you started but once it's proven
this is a minor misdemeanor and you can't sentence on it.
I mean, I just don't get what you're gonna accomplish.
-: Well, the conduct at issue,
there was probable cause to charge the felony.
So in Wallace W. it had to do with more minor misconduct.
And I don't think the legislature intended
for cases charging more serious misconduct to go to trial
and then have the court lose jurisdiction
based on the disposition that either the jury
or the judge comes back with.
This also prevents-
-: If the Commonwealth had originally charged
both the greater offense and the lesser included offense,
so from the start, what would've happened with respect
to the lesser included offense?
It would have gone to a Wallace W. hearing, right?
-: Well, in this case, because it's the same-
-: From the start you had- -: Right
because it's the same incident.
-: Yes, what would've happened in your view?
-: In my view, I would have to go to the procedural rule.
So the application would come before the clerk,
the lesser included would have to be dismissed at that point
'cause there's no prior record -: Because it was the first.
Okay, so as soon as the Commonwealth suggested to the judge
that there would be a need to charge
on the lesser included offense, why isn't that not...
And then the judge does so instruct the jury
and the Commonwealth doesn't object,
why is that not the functional equivalent
of what I just hypothesized?
In other words, it's almost like the functional equivalent
of amending the charges so that both charges
are now in the case.
-: I understand the hypothetical but also
if the juvenile court loses jurisdiction,
if there's an adjudication on the lesser included,
did the juvenile court even have the authority
to instruct in the lesser included?
-: Maybe not, I'm saying it might have been
as soon as the Commonwealth interjected this possibility
into the case or maybe at the latest
once they did not object to the judge instructing on that,
it seems to me that it's at that point
that there needs to be either
a Wallace W. type hearing to determine whether that's
the first minor misdemeanor
with which this juvenile has ever been charged,
or what happened here, which is what your brother is calling
the functional equivalent of a Wallace W. hearing
where we determine it was the first one,
and he was adjudicated delinquent of it.
But at some point in there, it seems to me that
the Commonwealth has precipitated in some way the question
about whether there's jurisdiction over that charge.
-: Well, the issue here is that the juvenile requested
the lesser included so it would be difficult for us to say
that he wasn't entitled to it if his defense was,
you know, this was, this was the lesser included
based on how the victim's testimony came out.
So this is why, because this is raised
as a jurisdictional issue, it becomes very complicated
because then does the court even have the ability
to instruct on the lesser included if they never had-
-: Maybe not, but then so how does that help you though?
If that's true, how does that help in this case?
-: Because it means that the court still has jurisdiction
even if the jury comes back with the lesser included.
-: Well, the judge has an obligation
to instruct on the lesser included.
-: Right, so that's what makes this very complicated.
-: Well, then you get your Wallace W. hearing like it or not.
-: I mean, it's not the most efficient,
I mean, obviously to have a trial
and through all the litigation and discovery,
we we always talk about judicial economy.
This would be the complete opposite of that.
But nevertheless, you know, it makes everybody have to be
a little bit more careful about what they do
on the charging, the applications when they come in.
It just makes everybody have to
pay more attention, doesn't it?
-: Sure, I also want to raise this court
that the victim testified in this case.
So, you know, it could come down
and I think it did in this case
just how the victims testimony came out,
what the jury decided to do with that testimony.
So I do want to raise the fact that this is going to mean
that a victim, potentially multiple victims,
potentially children would have to come in and testify,
and then the court would ultimately lose jurisdiction
if it comes out a particular way.
-: And so what? What's your point?
I guess I'm trying to figure out,
because the legislature has decided
that children deserve a second chance
and that's what all the jurisprudence about,
that's what the statute's about,
and, you know, yeah, there will be lost resources
expended unfortunately as Justice George's points out
in getting to this final result.
But the policy decision has been made by the legislature
that children deserve a second chance.
You know, in terms of weighing, you know, which is worse,
the legislature has already said
we wanna give children a second chance.
So if it takes more time to do it
and a jury needs to be in panel, so be it.
-: And just in connection with that, I think you argued that
the legislature didn't intend for this outcome.
Jang: Yes.
-: Where do you get that from?
-: From this court's prior decisions discussing
the intent to prevent cases moving forward
on minor misconduct or-
-: So once it's already left the gate,
then it has to keep going?
I don't understand that.
Like, if we made, "Oops, we shouldn't have let this one go."
It turns out, yeah, I don't understand your logic there.
-: All of this court's jurisprudence has discussed
a second chance for minor misconduct.
This was again, and I'm sorry to repeat myself,
but there was probable cause for a felony in this case-
-: But ultimately it turned out
that it was a misdemeanor. -: Minor.
-: At a higher quantum of proof.
-: That is correct.
But I'm not sure that the legislature intended
for the victim to come in and testify.
And we're not sure why the jury-
-: Or probably for the defendant to go through
this entire jury trial.
Right, so you know, I guess, you know,
I'm just confused as to the point of the witness testifying.
I think the legislature wanted it to be determined ex ante.
In this case, everybody had to go through
an entire jury trial to get to the result,
which is that this child gets to a second chance.
-: Sure, I just wanna emphasize that I do not believe
the legislature intended for us to look beyond
the application for criminal complaint
when we're determining whether-
-: Already been that.
We've been through that
and you've lost that battle previously, right?
So again, I'm coming back to your last thing.
You seem to want the judge to sentence on this
even though it's a first offense minor misdemeanor.
That makes no sense to me.
I just don't know why you keep pushing that point.
Tell me why that's a consistent with the,
as Justice Wendlandt said,
the legislature wants to give these kids a second chance.
So what's the point of sentencing
when you can't sentence them to anything
and it's gonna be expunged probably.
What are we doing?
-: Well, I do think the legislature,
looking at the type of conduct
especially that's at issue here,
I'm not sure that the legislature intended
for the juvenile court to completely lose authority
over a kid like this to be-
-: I get it.
If the jury had come back and said this kid did the felony,
the legislature wants him sentenced and punished,
but the jury didn't do that,
it came back with a minor misdemeanor.
-: I think we may be talking across purposes here perhaps.
Maybe I'm mistaken,
but hasn't the juvenile already completed the sentence?
-: Yes. -: Okay.
-: And would you agree, as far as legislative intent goes,
we don't know one way or the other whether or not
the legislature contemplated this unusual circumstance.
Correct? -: That is true.
-: But the only thing we do know is that the legislature
intended that people that are first offenders
for minor misdemeanors not be
found to be delinquent children.
Jang: Yes, that is true.
-: Can I ask you a question about expungement?
Is that your opposing counsel had suggested
that would be a second step should you lose on appeal?
Do you agree with that?
-: To be quite frank with you,
I'm not as well versed in the expungement rules,
but I would assume that that would be the next step.
Yes, if the sentence is vacated
and there's some sort of judgment
that this is a Wallace W. first offense,
Yes, I would assume that that would be the next step.