Recent argument before the Massachusetts Supreme Judicial Court

I have received a number of curious inquiries about the case that was being argued at the Supreme Judicial Court last week. Here I will try to explain what the case is about.

In 2022, I was retained by the family of a teenager who was charged with taking a pistol to school after he was threatened by gang members as he traveled to and from school. He cooperated with the school and turned over the gun. The case was delayed for quite awhile for a variety of irrelevant reasons. The charge at issue, unlawful possession of a firearm (not at home or work) in violation of M.G.L. Ch. 269, § 10(a), is often referred to as the Bartley-Fox law and was initially passed in 1975. This law called for a mandatory one year sentence in the house of correction for a conviction of the unlawful possession of a firearm (now 18 months) and bars a judge from not imposing a committed sentence by disallowing a charge from being continued without a finding or filing the charge. A continuance without a finding (often called a CWOF) is a device by which a judge imposes probation with conditions on an offender but does not find the defendant guilty, and if the defendant successfully completes probation, the charge is dismissed. This avoids most consequences of a guilty finding. Since a juvenile can not be sentenced to the house of correction or prison, the juvenile code prescribes a six month sentence to a Department of Youth Services facility instead.

While the case was pending, the SJC decided a case involving a juvenile charged as a youthful offender, Commonwealth v. Dones. In Dones, it was decided that a youthful offender charged with the unlawful possession of a firearm (not at home or work) in violation of § 10(a) was eligible to receive probation rather than a committed sentence. A youthful offender is a juvenile who is indicted, which allows them to be sentenced to any legal adult sentence when warranted.

I viewed Dones with interest since at the time I was representing two juveniles with firearm charges. One was indicted and controlled by Dones, but the other (the case discussed here) was not. It seemed to me that allowing an indicted youthful offender to get probation and not allow a non-committed sentence to an unindicted juvenile was incongruous. I set out to figure out a way around and even perhaps to avoid a delinquency. I ultimately was able to convince the Judge in the Juvenile Court to continue the case without a finding. The answer was always in plain sight in Ch. 269 § 10(a).

As I opened my argument I said:

"Since 1975 the legislature has provided a mechanism for juveniles to avoid the most severe consequences of a conviction for Ch. 269 § 10(a), and have since at least 1996 explicitly empowered Juvenile Judges to CWOF these offenses."

You may be thinking, "hey you just said that continuances without a finding are barred?" My argument was that they are for adults but not for juveniles. Here's why. Juvenile delinquency proceedings are unlike adult criminal proceedings in many ways:

the goals of the juvenile delinquency system are “primarily rehabilitative, cognizant of the inherent differences between juvenile and adult offenders, and geared toward “the correction and redemption to society of delinquent children.” Commonwealth v. Magnus M., 461 Mass. 459, 461 (2012).  To these ends, the Juvenile Court is given “very broad discretion ... with regard to disposition.” Magnus M., 461 Mass. at 461.

Juvenile sentencing principles are governed by M.G.L. Ch. 119, § 58, which in part provides:

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;

However, the legislature provided a specific list of crimes against the person listed in Ch. 265, such as a number of sexual offenses, which a Juvenile Court Judge may not place on file or continue without a finding. This paragraph suggests that any offense, other than those expressly barred may - and when appropriate - be continued without a finding. Those same offenses were also excluded by the legislature in M.G.L. Ch. 119, § 55B which provides the plea procedures in Juvenile Court.  Again we see that a continuance without a finding may be tendered by the child unless otherwise prohibited by law or are one of the prohibited offenses against the person from Ch. 265.

Notice that the legislature did not include in the list of offenses that can't be continued without a finding. But recall that the crime here, Ch. 269 § 10(a), says a continuance without a finding can't be given. I suggest that language only applies to adults, just like the adult-only sentences to the house of correction or state prison that the offense mandates.

I argue that another provision, one that was prominent in Dones, was also important here.:

The provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply . . . 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.

That section, 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.”  That quoted language has been in the Bartley-Fox law since 1975 and seems to suggest that when appropriate (not against the "interests of the public") a juvenile can be sentenced to probation. But if they are delinquent (the juvenile equivalent of guilty) they have to be sentenced to DYS for six months. This leads to the conclusion that the only way to assign a juvenile to probation is by a continuance without a finding.

The authority suggesting that juveniles must be sentenced to DYS commitments for a violation of Ch. 269, §10(a) is found in M.G.L. Ch. 119, § 58, ¶ 7, provides:

“[n]otwithstanding any other provisions of this chapter, a person adjudicated a delinquent child by reason of a violation of [Ch. 269 § 10(a)] … 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 … said period of time shall not be reduced or suspended.

 But this paragraph does not apply since my client was not determined to be delinquent because his offense was continued without a finding. If there is any conflict between the statutes, the conflict should be resolved in the favor of the juvenile. The Juvenile Court’s mandate incorporates the "rule of lenity", which requires the Court to give the benefit of any doubt to the juvenile where there is ambiguity in the application of a statute. Wallace W. v. Commonwealth, 482 Mass. 789, 798 (2019).

After the Juvenile Court granted my client a continuance without a finding, the Commonwealth appealed. Another juvenile also received a similar disposition after my client, and the Commonwealth appealed that case too. After our brief was filed in the Appeals Court, the Supreme Judicial Court took jurisdiction of the case on it's own initiative.

Hopefully a decision will come soon in my client's favor, and will provide some clarity in this area of law.