Commonwealth v. Leopold L.

• Decision Date: 08 January 2020
• Docket Number: No. 18-P-920,18-P-920
• Parties: COMMONWEALTH v. LEOPOLD L., a Juvenile.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 796

141 N.E.3d 99

COMMONWEALTH

v.LEOPOLD L., a Juvenile.

No. 18-P-920

Appeals Court of Massachusetts, Suffolk..

Argued October 2, 2019.

Decided January 8, 2020.

Caroline I. Alpert for the juvenile.

Julien M. Mundele, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Blake, & Englander, JJ.

WOLOHOJIAN, J.

This appeal from a probation revocation in the Juvenile Court raises a number of issues of first impression, including whether the juvenile, who turned eighteen after committing the crime that violated his probation but before the probation violation hearing, could be committed to the custody of the Department of Youth Services (DYS) until age nineteen. For the reasons set out below, we conclude as a general proposition that the Juvenile Court has both the jurisdiction and the authority to impose a probation revocation disposition to age nineteen. But because the juvenile's underlying suspended delinquency sentence committed him to DYS custody only to age eighteen, the judge, after deciding to revoke the juvenile's probation, could impose only the original suspended sentence; he could not extend it. For that reason, we vacate the juvenile's commitment to DYS custody to age nineteen and order that the original sentence be imposed nunc pro tunc. In addition, because we reject the juvenile's arguments that the finding of violation rested on unreliable hearsay evidence, and that continuances allowed in excess of the time limits for probation violation hearings in the Juvenile Court constitute reversible error, we affirm the finding of probation violation and the revocation of probation. See Commonwealth v. Padua, 479 Mass. 1004, 1005, 91 N.E.3d 1122 (2018) (conviction need not be vacated simply because sentence was incorrect).

Background. In August 2015, a complaint was brought charging the juvenile with delinquency by reason of unarmed robbery, G. L. c. 265, § 19 (b ), and assault and battery, G. L. c. 265, § 13A (a ) (the 2015 charges). On November 9, 2016, the then-sixteen year old juvenile admitted to sufficient facts and pleaded delinquent to the charges. He was committed to DYS custody "suspended until age eighteen," and placed on probation with conditions to February 8, 2018 (his eighteenth birthday).

On January 22, 2018, not long before he was to turn eighteen, a new delinquency complaint charged the juvenile with having committed armed assault with intent to murder, G. L. c. 265, § 18 (b ), assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ), and malicious damage to a motor vehicle, G. L. c. 266, § 28 (a ) (the 2018 charges). He was arraigned in Juvenile Court that same day, and ordered held on $20,000 cash bail. A pretrial conference was scheduled for February 8, 2018.

Also on January 22, 2018, the juvenile was served with a notice of probation violation alleging that the new criminal conduct violated the terms of his 2016 probation.¹ The juvenile did not contest a preliminary finding of violation, and the judge found probable cause and ordered that the juvenile be held without bail. See Juvenile Court Standing Order 1-17 § V(c) (2017). The probation violation hearing was set for February 8, 2018.

Thus, as of January 22, 2018, the seventeen year old juvenile was held on $20,000 cash bail on the 2018 delinquency complaint, he was held on no bail on the probation violation notice, and the parties were to appear on February 8, 2018, both for the probation violation hearing and for a pretrial conference on the 2018 delinquency complaint. February 8, 2018 was the juvenile's eighteenth birthday.

On the morning of the February 8, 2018 hearing, the juvenile filed a motion arguing that the Juvenile Court's jurisdiction over the probation violation would end by the end of the day, as would its ability to impose any sentence. The Commonwealth sought a continuance in order to address these issues, and because it had not summonsed the necessary witnesses for the probation hearing. The Commonwealth also informed the judge that it was still reviewing whether to indict the juvenile as a youthful offender. Over the juvenile's objection, the judge allowed a continuance to March 8, 2018, set a briefing schedule with respect to the juvenile's motion, and informed the Commonwealth that it should be prepared to go forward with its evidence on the probation violation on March 8. The judge also extended the juvenile's probation to March 8, without prejudice to the juvenile's jurisdictional argument.

On February 12, 2018, the juvenile filed an emergency petition for relief with the Supreme Judicial Court under G. L. c. 211, § 3, challenging both the continuance and the Juvenile Court's jurisdiction to extend probation beyond the juvenile's eighteenth birthday.

A single justice of the Supreme Judicial Court denied the petition in part because the juvenile continued to be held on bail on the new charges, which he had not challenged.²

The parties next appeared in Juvenile Court on March 8, 2018, as scheduled. As to the 2018 delinquency complaint, the Commonwealth informed the judge that it had begun to present evidence to a grand jury and intended to seek an indictment. As to the probation violation, the juvenile again pressed his argument that the court lacked jurisdiction and authority given the juvenile's age. The Commonwealth sought a continuance because its sole witness (the investigating officer) on the probation violation was unavailable given unexpected childcare issues caused by snow and school cancellations. The judge noted on the record that there had been a significant snowfall the previous evening resulting in school cancellations and even a delayed opening of the court. Over the juvenile's objection, the judge continued the probation violation hearing for one week to March 15, 2018. The judge also denied the juvenile's request that the judge terminate his detention.

The evidentiary portion of the probation violation hearing was conducted on March 15, 2018, with argument conducted the following week on March 22, 2018, after the judge had had an opportunity to review the video recording (video) exhibits.³ The evidence (which came in through the investigating officer) showed the following. On January 14, 2018, the victim and his friend, driving two separate cars, returned home after having gone out to get something to eat. As the victim was backing into a parking spot, three to four young men appeared. Two wielded baseball bats and smashed the windows of the victim's car. Another then reached in and stabbed the victim. The victim's friend managed to disperse the group by driving his car toward them, and the victim then drove himself to a local medical clinic for treatment. Finding it closed, the victim called 911. He recounted the incident to the responding officer and was then transported by ambulance to a hospital, where the officer conducted a short interview in which the victim described his assailants only as younger Hispanic males.

The victim's friend was interviewed by police at the station shortly after the attack. The friend's account was consistent with what we have set out above and added the following. He was "pretty sure" that one of the attackers was the juvenile. The day before the incident, the friend and the victim had seen the juvenile about fifty yards from where the assault occurred. Upon seeing the juvenile, the victim said, "[O]h, there goes [the juvenile] and me and him have a beef, as in like a feud, fight situation." The juvenile was wearing a grey jumpsuit.

Five days after the incident, after having been released from the hospital, the victim appeared at the police station with his father in order to be interviewed. The victim repeated what he had previously said about the incident but added the following. The victim identified the juvenile as the person who broke the car windows and hit his hand with a bat. He had heard from a friend that the juvenile had used a metal bat in a previous (unrelated) assault. The victim stated that the juvenile's nickname was "Puerto Rico," and told the officer where the juvenile lived, stating that he had known the juvenile for about two years and that they had previously been friends. The victim confirmed that he had seen the juvenile the day before the attack and that the juvenile was wearing the same hoodie.

The victim added that he recognized the stabber, described him as having "long hair," and identified him as Adam,⁴ whom he (the victim) had known for about two years and saw approximately monthly. He provided Adam's address. The victim also said that he had been involved in a physical altercation with Adam a few months earlier.

A surveillance video obtained from a nearby building confirmed the details of the attack in all particulars, but did not show any of the attackers' faces.

The victim identified both the juvenile and Adam from double-blind photographic arrays. When the police went to arrest the juvenile at his home, his family attempted to divert police while the juvenile escaped. The juvenile was apprehended as he fled out the back exit.

After hearing the evidence, the judge continued the hearing to March 22, 2018, so that he could review the videos. When the parties returned on that date, the juvenile again argued that the court did not have jurisdiction over him given his age, that both due process and double jeopardy would be violated should any disposition be imposed beyond that imposed in the original sentence on the 2015 charges, that the hearsay evidence was not reliable, and that the evidence did not establish by a preponderance of the evidence that the juvenile participated in the attack. The judge disagreed, found the juvenile in violation of his probation, revoked the suspended sentence, and committed him to DYS custody to age nineteen (i.e., to February 8, 2019). This appeal followed.⁵

Discussion. The juvenile raises three primary arguments on appeal, all of which are preserved. First...