In re D.K.

• Citation: 47 A.3d 347,2012 VT 23
• Decision Date: 23 March 2012
• Docket Number: No. 11–076.,11–076.
• Parties: In re D.K., Juvenile.
• Court: United States State Supreme Court of Vermont

47 A.3d 347

2012 VT 23

In re D.K., Juvenile.

No. 11–076.

Supreme Court of Vermont.

March 23, 2012.

Christina Rainville, Bennington County Chief Deputy State's Attorney, Bennington, for Plaintiff–Appellant.

David F. Silver and Timothy M. Andrews (on the Brief) of Barr, Sternberg, Moss, Lawrence & Silver, P.C., Bennington, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. The issue in this case is whether the State may prosecute an adult defendant for crimes alleged to have occurred when he was a juvenile between the ages of ten and fourteen years. The prosecution is late, not through any fault of the State, because the alleged victims did not come forward until defendant was eighteen years of age and beyond the jurisdiction of the family division. The State, recognizing this jurisdictional difficulty, tried to file the information in the criminal division. The criminal division transferred the case to the family division because it found there was no criminal jurisdiction to adjudicate even the most serious of the offenses without first filing the matter in the family division. The family division, however, determined it was without jurisdiction to entertain the charges because defendant had reached eighteen years of age. Accordingly, it dismissed all of the charges against defendant.

¶ 2. On appeal, the State argues that the family division erred by dismissing the more serious felony charges because: (1) a recent legislative enactment addressing what it calls a “gap” in the jurisdictional provisions of the statutes is a mere clarification demonstrating that the Legislature had always intended that adult defendants be subject to prosecution for serious crimes committed when they were juveniles; and (2) even if the new amendment does not clarify the statutes and fill the gap, there is jurisdiction in the criminal division because that division has always had jurisdiction over all serious felonies. We conclude that: (1) the Legislature's recent enactment did not clarify existing law but rather established entirely new law that cannot be applied retroactively to this case; therefore, to the extent that the Legislature has filled the “gap,” it has done so only prospectively; and (2) the statutory scheme applicable at the time of the offenses plainly did not allow either the family or criminal division to exercise its jurisdiction over an adult defendant accused of offenses committed as a juvenile under the age of fourteen. Accordingly, we affirm the family division's order dismissing all charges in this case.

¶ 3. In July 2010, the State filed an information alleging that when the eighteen-year-old defendant was between the ages of eleven and thirteen he sexually assaulted, through mouth-to-genital contact, one younger male cousin on three occasions, and that when he was between the ages of twelve and fourteen he subjected another younger male cousin to lewd and lascivious acts on four occasions. Before arraignment or a probable cause determination, the criminal division ordered the parties to submit memoranda on the question of whether it had initial jurisdiction to consider the charges. In an October 2010 decision, the criminal division removed the four lewd-and-lascivious counts to the family division and ordered that the three sexual-assault counts be redocketed in the family division as a delinquency petition.

¶ 4. Shortly thereafter, defendant filed a motion in the family division to dismiss all of the charges. The State acknowledged that the family division's jurisdiction was limited to juveniles under the age of eighteen, but nevertheless argued that the court should accept jurisdiction over the lewd and lascivious conduct charges and transfer the sexual assault charges to the criminal division. In February 2011, the family division issued a decision concluding that: (1) it lacked jurisdiction over the lewd and lascivious conduct charges because defendant had reached his eighteenth birthday; and (2) for the same reason, it lacked jurisdiction to transfer the sexual assault charges to the criminal division, given the statutory requirement that such charges against juveniles be filed in the first instance in the family division.

¶ 5. The State appeals the dismissal of only the sexual assault counts, arguing first that the Legislature's recent clarification of the statutes solves the jurisdictional issue and demonstrates that the Legislaturehad always intended defendants to be subject to criminal prosecution for crimes committed while they were children, even if those offenses were not reported or discovered until after the juvenile reached adulthood. We conclude that this argument is unavailing.

¶ 6. During the 2011 legislative session, after the family division filed its decision in this case, the Legislature enacted a statute, codified as 33 V.S.A. § 5204a, creating jurisdiction and detailed procedures for the family division in the first instance (and potentially the criminal division upon transfer from the family division) to adjudicate charges against adult defendants for offenses allegedly committed when they were juveniles. 2011, No. 16, § 2. The newly created statute provides that a proceeding may commence in the family division against an adult defendant if the petition alleges that the defendant committed one of certain specified serious crimes, no juvenile petition had ever been filed based on the alleged conduct, and the statute of limitations had not yet tolled on the alleged offense. 33 V.S.A. § 5204a. If certain criteria are met, and upon consideration of detailed factors set forth in the statute, the family division may do one of three things: (1) transfer the case to the criminal division in the interest of justice and public safety; (2) order the defendant, if under twenty-three years of age, to be treated as a youthful offender; or (3) dismiss the petition. Id. 5204a(b)-(c). Among the statute's numerous criteria and factors for the court's consideration are those that take into account the differences in culpability and treatment for offenses committed by juveniles as opposed to adults.¹

¶ 7. Before the enactment of § 5204a, the statutory scheme did not provide jurisdiction or procedures for adjudicating charges against adult defendants based on offenses committed when they were under the age of fourteen. Nevertheless, the first section of the act creating § 5204a states, in part, as follows: “This act clarifies, as the general assembly had always intended, that under the proper circumstances and for serious offenses, the state may bring charges against a person 18 years of age or older who committed a crime before turning 18.” 2011, No. 16, § 1. The State relies upon this statement as evidence that the old statutory scheme, which the State concedes applies to defendant, allows the family division to infer that it may overlook its most basic and explicit statutory limitation to exercise jurisdiction over this eighteen-year-old defendant and transfer this case to the criminal division. The State's position does not withstand scrutiny.

¶ 8. Although “[t]he general presumption is that legislation is intended to apply only prospectively,” the presumption may be rebutted when the Legislature enacts a clarification of a misapplied or misinterpreted statute, thereby revealing its true meaning. State v. Kenvin, 2011 VT 123, ¶ 24, 191 Vt. ––––, 38 A.3d 26. It is true that the Legislature in this instance took pains to describe its actions as a clarification of its prior intent, and while the Legislature's statement of its intent is always of interest to this Court, our review must be based on the substantive analysis of the statutory amendment. If the amendment has created new law, the law may not be applied retroactively, and the old law may not be validly interpreted as implying what the new law requires. In these circumstances, any statement of legislative intent that is contrary to what the Legislature has actually done is not controlling and must be disregarded.

¶ 9. Here, the Legislature's attempt to clarify the law in 2011 after defendant was charged created an entirely new jurisdictional statute providing procedures for adjudicating delinquency petitions involving adult defendants where none existed before. The new statute is plainly inconsistent with the prior law and cannot be considered merely a clarification of what a previous Legislature had intended the statute to mean.

¶ 10. The State argues, however, that even if the Legislature's 2011 amendment cannot be considered a clarification of the law as it existed at the time the instant charges were brought, the law at that time still plainly provided jurisdiction in the criminal division to adjudicate those charges. According to the State, although the adult defendant may have been beyond the family division's jurisdiction, the criminal division has general jurisdiction “to try, render judgment, and pass sentence in prosecutions for felonies,” 4 V.S.A. § 32(a), without regard to the age of the defendant. Moreover, the State notes that prosecutions for sexual assault of child victims are permitted until “the earlier of the date the victim attains the age of 24 or 10 years from the date the offense is reported,” 13 V.S.A. § 4501(c), neither of which was reached in this case before defendant was charged. Thus, in the State's view, the criminal division had continuing jurisdiction to adjudicate the charges it brought against defendant. This position, the State maintains, is further supported by the Legislature's important public policy goals of protecting minors from sexual abuse and rehabilitating sex offenders.

¶ 11. None of these arguments is consistent with the statutory scheme in place at the time the charges were brought in this case, which provided the family division with exclusive original jurisdiction to adjudicate charges alleging delinquent acts...