Supreme Judicial Court, July 16, 2012

When a defendant is alleged to commit an offense between the ages of fourteen and seventeen, but is not apprehended until after his eighteenth birthday, he must be afforded a transfer hearing, pursuant to G.L. 119, § 72A, before the Commonwealth can proceed by indictment under  G.L. 119, § 54.

The Commonwealth alleges that the defendant committed several sexual assault crimes when he was between the ages of sixteen and seventeen; however, he was not apprehended until he was twenty-six years old.  The defendant was arraigned on complaints for rape of a child, indecent assault and battery on a child, and threatening to commit a crime in Suffolk County Division of the Juvenile Court Department (Juvenile Court).  Subsequently, the Commonwealth sought youthful offender indictments, pursuant to G.L. 119, § 54, and the grand jury returned indictments for four counts of rape of a child.  The defendant was arraigned in Juvenile Court on these indictments. 

The defendant moved to dismiss the youthful offender indictments because he had not been given a G.L. 119, § 72A (§ 72A) transfer hearing before being indicted.  The judge allowed the motion and the Commonwealth appealed.  The SJC granted the Commonwealth’s application for direct appellate review. 

The Commonwealth advanced several arguments that did not persuade the Court.  In summary, the SJC found that the defendant was entitled to a § 72A hearing, § 72A applies to the defendant whether the Commonwealth wishes to proceed by indictment or complaint, and G.L. 119, § 54 requires compliance with § 72A. The Court also considered and rejected that the protections afforded to a defendant under § 72A are provided to the defendant through the grand jury proceedings and therefore the transfer hearing is not necessary.

The Court concluded “the judge did not err in dismissing the youthful offender indictments where the defendant was alleged to have committed offenses between the ages of fourteen and seventeen, was apprehended after his eighteenth birthday, but was not afforded a § 72A hearing.” The matter was remanded to Juvenile Court.