In re S.D.

• Decision Date: 09 September 2022
• Docket Number: 21-094
• Citation: 287 A.3d 547
• Parties: IN RE S.D., Juvenile (State of Vermont, Appellant)
• Court: Vermont Supreme Court

287 A.3d 547

IN RE S.D., Juvenile (State of Vermont, Appellant)

No. 21-094

Supreme Court of Vermont.

March Term, 2022

September 9, 2022

Travis W. Weaver, Rutland County Deputy State's Attorney, Rutland, for Plaintiff-Appellant.

Matthew Valerio, Defender General, and Dawn Seibert, Juvenile Defender, Montpelier, for Defendant-Appellee.

PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Waples, Supr. J., Specially Assigned

COHEN, J.

¶ 1. The State appeals the family division's dismissal of three juvenile-delinquency petitions against S.D. for lack of subject-matter jurisdiction, arguing that the family division retained jurisdiction to transfer them to the criminal division even after S.D. reached the age of twenty years and six months. S.D. asserts that 13 V.S.A. § 7403 does not provide a right for the State to appeal from the dismissal of a delinquency petition. We agree and dismiss this appeal, overruling our precedent to the contrary in In re F.E.F., 156 Vt. 503, 594 A.2d 897 (1991).

I. Facts and Procedural History

¶ 2. S.D. turned eighteen on May 8, 2018, and he reached twenty years and six months on November 8, 2020. In the criminal division, the State charged S.D. with committing three felonies while S.D. was between the ages of eighteen and nineteen: impeding a public officer pursuant to 13 V.S.A. § 3001, allegedly occurring in October 2018 and charged in November 2018; aggravated operation of a vehicle without the owner's consent pursuant to 23 V.S.A. § 1094(b), allegedly occurring in December 2018 and charged the same month; and sexual assault of a child under the age of sixteen pursuant to 13 V.S.A. § 3252(c), allegedly occurring in April 2019 and charged in January 2020. None of these crimes are included in the list of twelve offenses in 33 V.S.A. § 5204(a), known as the "Big Twelve" felonies.

¶ 3. In February 2020, S.D. moved for youthful-offender consideration in the criminal division, which, if granted, would move the cases to the family division. During the pendency of these cases, portions of the "Raise the Age" law went into effect on July 1, 2020. 2017, No. 201 (Adj. Sess.). As relevant to this matter, this law changed multiple procedural aspects of cases involving non-Big Twelve offenses committed by defendants under the age of nineteen. The law requires such proceedings to be commenced in the family division, 33 V.S.A. § 5201(d), and, if they were already commenced in the criminal division, to be automatically transferred to the family division resulting in the defendant subsequently being treated as a child charged with a delinquent act, 33 V.S.A. § 5203(a). However, the family division retains discretion to transfer a subset of such proceedings to the criminal division pursuant to 33 V.S.A. § 5204. See id. § 5203(c). Section 5204(a) provides that proceedings involving a juvenile between the ages of sixteen and nineteen accused of committing a delinquent act that is designated a felony (but not a Big Twelve felony) "may" be transferred to the criminal division upon motion filed by the state's attorney and after a hearing.

¶ 4. The law did not change 33 V.S.A. § 5103(a), which reads: "The Family Division ... shall have exclusive jurisdiction over all proceedings concerning a child who is or who is alleged to be a delinquent child ... brought under the authority of the juvenile judicial proceedings chapters, except as otherwise provided in such chapters." This exclusive jurisdiction exists until six months after the child's twentieth birthday if the child was over eighteen years old when they committed the offense. Id. § 5103(c)(2)(A)(ii).

¶ 5. In late July 2020, S.D. moved to transfer the cases to the family division based on the raised age in § 5201(d). The criminal division granted his motion and transferred the cases to the family division in August 2020. As stated above, S.D. reached the age of twenty years and six months on November 8, 2020. On November 16, 2020, S.D. moved to withdraw from youthful-offender consideration and transfer the cases to the Rutland Criminal Division, which the family division promptly granted. The criminal division then automatically transferred the cases back to the family division under the new automatic-transfer requirement of § 5203(a).

¶ 6. After a preliminary hearing in February 2021, the State filed a motion to transfer the three cases back to the criminal division. The State argued that § 5203(c) provided the authority for the family division to transfer the cases to the criminal division and that the probable cause and public safety considerations found in § 5204(c) and the factors listed in § 5204(d) weighed in the State's favor. The family division held a hearing on the motion in March 2021.

¶ 7. Subsequently, S.D. moved to dismiss each of the petitions, arguing that the family division had exclusive subject-matter jurisdiction over the matters until six months after his twentieth birthday, pursuant to § 5103(a) and § 5103(c)(2)(A)(ii), and that its jurisdiction therefore expired on November 8, 2020, before the filing of the State's February 2021 motion to transfer. The State's reply asserted that the age-limited, exclusive jurisdiction would only apply to the extent it did not conflict with the family division's discretion to transfer the cases back to the criminal division, or, in the alternative, that the criminal division's November 2020 entry order automatically transferring jurisdiction back to the family division was in error because it improperly retroactively applied § 5203(a) in violation of Vermont's saving clause. The family division granted S.D.’s motions to dismiss in April 2021, concluding that its jurisdiction expired on November 8, 2020, and that no other court had jurisdiction because the family division's jurisdiction was exclusive when it existed.

¶ 8. The State appeals the family division's dismissal, raising most of the same arguments as it did below. S.D. opposes the State's arguments and also contends that 13 V.S.A. § 7403 does not allow the State to appeal from the dismissal of a delinquency petition. The State did not address this issue in its briefs. At oral argument, the State asserted that § 7403 confers authority for the State's right to appeal because even though the title of the charge against S.D. is delinquency, it is in some sense a criminal prosecution. Because we agree with S.D. that the State's appeal is not properly before us, we do not address the parties’ other arguments.

II. Analysis

¶ 9. The question of whether the State has the right to appeal from the dismissal of a delinquency petition under 13 V.S.A. § 7403 is a matter of statutory interpretation, which we review de novo. State v. Gurung, 2020 VT 108, ¶ 23, 214 Vt. 17, 251 A.3d 572. When interpreting a statute, our goal is to "determine the intent of the Legislature and implement that intent." Flint v. Dep't of Lab., 2017 VT 89, ¶ 5, 205 Vt. 558, 177 A.3d 1080. Such a determination requires that we "examine and consider fairly, not just isolated sentences or phrases, but the whole and every part of the statute, ... together with other statutes standing in pari materia with it, as parts of a unified statutory system." Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38, ¶ 20, 194 Vt. 12, 72 A.3d 346 (quotation omitted). "In construing a statute, we first look at the language. If the language is clear, we apply the statute in accordance with its plain meaning." Wright v. Bradley, 2006 VT 100, ¶ 6, 180 Vt. 383, 910 A.2d 893.

¶ 10. The State's right to appeal in criminal proceedings is governed by 13 V.S.A. § 7403. In relevant part, the statute reads: "In a prosecution for a felony, the State shall be allowed to appeal to the Supreme Court any decision, judgment, or order dismissing an indictment or information as to one or more counts." Id. § 7403(b). The more specific question at issue here, therefore, is whether a delinquency proceeding can be considered a "prosecution for a felony" under § 7403(b).

¶ 11. There are two ways a delinquency proceeding can begin: when the criminal division transfers a case to the family division involving a defendant under the age of nineteen pursuant to 33 V.S.A. § 5203(a) - (c), or when the state's attorney files a delinquency petition in the family division pursuant to 33 V.S.A. § 5222. 33 V.S.A. § 5201(a). A delinquency petition must allege that "the child has committed a delinquent act," id. § 5222(a)(1), which is defined as "an act designated a crime under the laws of this State, or of another state if the act occurred in another state, or under federal law." Id. § 5102(9).¹ A "delinquent child" is "a child who has been adjudicated to have committed a delinquent act," id. § 5102(10), but such an adjudication "shall not ... be deemed a conviction of crime." Id. § 5202(a)(1).

A. Vermont Precedent

¶ 12. Consistent with these legislative pronouncements, we have repeatedly held that a delinquency proceeding is not a criminal prosecution despite sharing some substantive and procedural similarities. In In re P.M., a fifteen-year-old was accused of rubbing his partially clothed genital area against the partially clothed genital area of an eight-year-old child. He was ultimately found to have committed a delinquent act "that would have constituted lewd and lascivious conduct had he been in adult court." In re P.M., 156 Vt. 303, 306, 592 A.2d 862, 863 (1991). P.M. appealed, arguing that the statute criminalizing lewd and lascivious conduct did not criminalize consensual sexual conduct between two children under the age of sixteen. This Court affirmed the juvenile court's judgment, noting that "the crucial inquiry is whether the act committed is designated a crime under a statute, not whether the juvenile could be criminally prosecuted under the statute." Id. at 307, 592 A.2d at 864. P.M. was not prosecuted under the statute criminalizing lewd and lascivious conduct between an adult and a child; "rather, he was charged with...