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  • Writer's pictureAttorney Neil Tassel

Important Juvenile Firearm Decision

Updated: Mar 19

In the Commonwealth of Massachusetts, as many know, the unlicensed possession of a firearm of any type outside of the home or place of work is a felony with significant penalties. An adult convicted of the offense of unlawful possession of a firearm in violation of M.G.L. Ch. 269, § 10(a) must serve a mandatory house of correction sentence of 18 months and there are no provisions for probation or to continue the offense without a finding. For juveniles, the statute appears to impose a commitment to the Department of Youth Services upon a finding of delinquency.

            A client of mine was charged as a juvenile with the unlawful possession of a firearm. While he had never been in trouble, and appeared to be responding to legitimate concerns for his safety by obtaining a firearm, he appeared to be exposed to a DYS commitment which has been the practice of the Juvenile Courts. However the recent decision of the Supreme Judicial Court in the juvenile case of Commonwealth v. Dones, 492 Mass. 291 (2023) provided a opportunity to explore other sentencing possibilities.

In Dones, a juvenile was indicted as a youthful offender for the unlawful possession of a firearm. A youthful offender indictment allows the juvenile court to impose any adult sentence on a juvenile for a given offense. The Supreme Judicial Court held that the juvenile court may suspend a DYS commitment for a youthful offender. This holding is grounded on the principle that the juveniles are to be treated leniently when appropriate. M.G.L. Ch. 119, § 53 provides that juvenile sentencing governed by M.G. L. Ch. 119, § 58, is to "be liberally construed so that the care, custody and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that, as far as practicable, they shall be treated, not as criminals, but as children in need of aid, encouragement and guidance."

M.G.L. Ch. 119, § 58 provides:

At the hearing of a complaint against a child the court shall hear the testimony of any witnesses who appear and take such evidence relative to the case as shall be produced. If the allegations against a child are proved beyond a reasonable doubt, he may be adjudged a delinquent child, or in lieu thereof, the court may continue the case without a finding and, with the consent of the child and at least one of the child's parents or guardians, place said child on probation; provided, however, that any such probation may be imposed until such child reaches age eighteen or age nineteen in the case of a child whose case is disposed of after he has attained his eighteenth birthday or age 20 in the case of a child whose case is disposed of after he has attained his nineteenth birthday; provided further, that a complaint alleging a child to be a delinquent child by reason of having violated the provisions of section 13B, 13B1/2, 13B3/4, section 22A, 22B, 22C, 23, 23A, section 23B or section 50 of chapter 265 shall not be placed on file or continued without a finding. Said probation may include a requirement, subject to agreement by the child and at least one of the child's parents or guardians, that the child do work or participate in activities of a type and for a period of time deemed appropriate by the court. [emphasis added]

A plain reading of this paragraph suggests that any offense, other than the violent Chapter 265 offenses listed specifically, may be continued without a finding. However, § 58 ¶ 7 further provides:

“[n]otwithstanding any other provisions of this chapter, a person adjudicated a delinquent child by reason of a violation of paragraph (a), (c) or (d) of section ten or section ten E of chapter two hundred and sixty-nine, shall be committed to the custody of the commissioner of youth services who shall place such child in the custody of a facility supported by the commonwealth for the care, custody and training of such delinquent children for a period of at least one hundred and eighty days or until such child attains his eighteenth birthday or his nineteenth birthday in the case of a child whose case is disposed of after he has attained his eighteenth birthday, whichever first occurs, provided, however, that said period of time shall not be reduced or suspended.  [emphasis added]

  On its face this provision suggests that upon a finding of delinquency a juvenile court must impose a DYS commitment of not less than of 180 days. However this paragraph only applies to "a person adjudicated a delinquent child." Commonwealth v. Connor C., 432 Mass. 635, 645 (2000).  In concert, the two cited provisions of § 58 appear to instruct the Juvenile Court that when adjudicated delinquent a juvenile should be sentenced in accordance with the mandatory provisions of M.G.L. Ch. 269, § 10(a) but that the Court may, in appropriate cases, continue the matter without a finding, and thereby not “adjudicate” the child to be delinquent but instead assign the juvenile to the probation department. 

            Such an interpretation is warranted as well by the language of M.G.L. Ch. 269, § 10(a) which states that “[t]he provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person 18 years of age or older, charged with a violation of this subsection, or to any child between ages fourteen and 18 so charged, if the court is of the opinion that the interests of the public require that he should be tried as an adult for such offense instead of being dealt with as a child.” The referenced provision, M.G.L. Ch. 276, § 87, instructs both adult and juvenile courts that persons before them may be assigned to probation at all stages of prosecution with the defendant’s consent “for such time and upon such conditions as [the Court] deems proper.” 

I argued that the legislature carved out a provision from the mandatory sentencing provision of M.G.L. Ch. 269, § 10(a) for probationary sentences for juveniles whom the Court views should be treated as children and not as adults in the public interest.  See Dones, 492 Mass. at 299.  By the statute's plain language the option to provide a probationary sentence does not exist for persons over the age of 18 and only applies to juveniles ages 14-18.   I noted that this flexibility in sentencing is also entirely consistent with contemporary thought regarding juvenile and young adult development.  See e.g. Commonwealth v. Mattis, SJC-11693 (January 11, 2024).  In those appropriate instances, the Juvenile Court may avoid the consequences of the finding of delinquency and continue the matter without a finding of delinquency and place the juvenile on probation. The determination that this offense may be continued without a finding also avoided the anomalous result that juveniles that are adjudicated to be youthful offenders may avoid commitments to the Department of Youth Services in accordance with the holding of Dones, whereas juveniles not so adjudicated must be committed to DYS.

The Juvenile Court agreed that it could impose a continuance without a finding, and found that it was appropriate in my client's case thereby avoiding a commitment and the equivalent of a guilty finding.

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