Supreme Judicial Court (September 6, 2011)

The Superior Court has jurisdiction to try a person under G.L. c. 119, § 72A, after indictment, when a person commits a criminal offense before the age of 14 and is apprehended after he has attained the age of 18; provided that a Juvenile Court judge has determined that there is probable cause to believe that the person committed the offense charged and that the public interest requires that the person be tried for the offense instead of being discharged.

A Superior Court judge reported the following question under Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004):

"Does the Superior Court have the jurisdiction over indictments charging rape of a child with force (G.L. c. 265, § 22A) and indecent assault and battery of a child under the age of 14 (G.L. c. 265, § 13B), pursuant to G.L. c. 119, § 72A, where the defendant is alleged to have been under the age of 14 at the time of the commission of the offense, but was not apprehended until after his eighteenth birthday, or do other provisions of chapter 119, specifically § 54, preclude the prosecution as an adult of a person who was under the age of 14 at the time the offense was committed?"

For purposes of this appeal, the parties stipulated to the following facts: 1) the victim alleged that the defendant repeatedly sexually assaulted and raped her for approximately three years while the victim was under the age of fourteen; 2) the alleged crimes included indecent assault and battery on a child and forcible rape of a child, with four indictments covering when the defendant was under the age of 14 and four indictments bridging the defendant's 13th and 14th years; 3) the victim first disclosed the abuse in July 2003 and first reported the crimes to police in 2007 (when the defendant was 23 years old).

On October 30, 2007 a delinquency complaint issued against the defendant. After finding probable cause and determining that the public interest is served by trying the defendant, the Juvenile Court judge transferred the case to Superior Court under G.L. c. 119, § 72A. The defendant was indicted on six charges of rape of child with force and two charges of indecent assault and battery on a child. The defendant filed a motion to dismiss, arguing that the Superior Court did not have subject matter jurisdiction. The judge reported the above-referenced question of law to the Appeals Court. The Supreme Judicial Court granted the Commonwealth's application for direct appellate review.

In answering the question presented, the Court reviewed the meaning of G.L. c. 119, § 72A, including significant 1996 alterations to the statute and case law. General Laws c. 119, § 72A, as appearing in St. 1996, c. 200, § 13A, provides:

"If a person commits an offense or violation prior to his seventeenth birthday, and is not apprehended until after his eighteenth birthday, the [Juvenile] court, after a hearing, shall determine whether there is probable cause to believe that said person committed the offense charged, and shall, in its discretion, either order that the person be discharged, if satisfied that such discharge is consistent with the protection of the public; or, if the court is of the opinion that the interests of the public require that such person be tried for such offense or violation instead of being discharged, the court shall dismiss the delinquency complaint and cause a criminal complaint to be issued. The case shall thereafter proceed according to the usual course of criminal proceedings and in accordance with the provisions of [G.L. c. 218, § 30] and [G.L. c. 278, § 18]. Said hearing shall be held prior to, and separate from, any trial on the merits of the charges alleged."

The Court found that the plain meaning of the statute allows for the filing of a delinquency complaint when a person allegedly committed a crime before his 17th birthday but is apprehended after he is 18 years of age. The Juvenile Court judge is required to conduct a hearing to determine probable cause and how the case should proceed. The judge shall order the person discharged if it is consistent with the public interest. If the protection of the public requires that the person be tried for the offense, then the judge shall dismiss the delinquency complaint and cause a criminal complaint to issue. "If a criminal complaint issues, the case 'shall thereafter proceed according to the usual course of criminal proceedings,' and the prosecution may choose to proceed in the Superior Court by obtaining an indictment or seeking a 'bind-over' hearing under G.L. c. 218, § 30."

The Court considered and rejected the defendant's argument that his case was controlled by a 1975 version of G.L. c. 119, § 72A (St. 1975, c. 840, § 2) and Commonwealth v. A Juvenile, 407 Mass. 550 (1990) (judge found probable cause to believe that a 21 year old man committed sex offenses when he was 12 years old, but then dismissed all the complaints after concluding that the defendant could not be prosecuted under § 72A as then in effect). Here, the Court found that the Legislature's 1996 revisions to G.L. c. 119, § 72A were intended to "close the cracks" identified in Commonwealth v. A Juvenile, supra.

The Court also found that § 72A is not inconsistent with G.L. c. 119, § 54 (as amended through St. 1996, c. 200, § 2), which provides that, "in designated circumstances, children between the ages of fourteen and seventeen who are alleged to have committed an offense that, if committed by an adult, would be punishable by imprisonment in State prison may be prosecuted as youthful offenders and indicted for these offenses in accordance with the usual course of criminal proceedings."

The Court answered the reported question by finding that the Superior Court does have jurisdiction to prosecute a person who commits an offense at an age under 14, but who is not apprehended until after the age of 18. The matter was remanded to the Superior Court for further proceedings.

Note footnote 4 of the decision . "We do not address whether a transfer hearing under G.L. c. 119, § 72A, must be held before the Commonwealth brings a youthful offender indictment against a person who was apprehended after his eighteenth birthday but allegedly committed offenses when he was between fourteen and seventeen years old. We have granted the Commonwealth's application for direct appellate review in a case where this issue is presented." Commonwealth vs. Nanny, DAR-19798 (May 25, 2011).