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SJC-12074

                COMMONWEALTH   vs.   ALEXANDER SOTO.



       Suffolk.        October 7, 2016. - February 9, 2017.

  Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
                            & Budd, JJ.


Practice, Criminal, Indictment, Trial of indictments together,
     Dismissal. Youthful Offender Act. Statute, Construction.
     Jurisdiction, Juvenile, Superior Court. Juvenile Court,
     Jurisdiction. Superior Court, Jurisdiction.



     Indictments found and returned in the Superior Court
Department on April 2, 2015.

    A motion to dismiss was heard by Peter M. Lauriat, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Helle Sachse, Assistant District Attorney (Mark A. Hallal &
Montez D. Haywood, Assistant District Attorneys, also present)
for the Commonwealth.
     Benjamin L. Falkner for the defendant.


    HINES, J.     Alexander Soto, a juvenile, was indicted in the

Superior Court for murder in the first degree and for related

offenses under G. L. c. 119, § 74.    A judge in the Superior
                                                                      2


Court dismissed the nonmurder indictments, ruling that the

nonmurder charges must be brought first in the Juvenile Court by

a complaint for delinquency or a youthful offender indictment

prior to joinder with the murder indictments.   The Commonwealth

appealed, and we granted its application for direct appellate

review.   We conclude, based on the plain language of G. L.

c. 119, § 74, and the overarching statutory scheme governing the

treatment of juveniles charged with a violation of the criminal

law, that when a juvenile is indicted for murder, nonmurder

offenses that are properly joined with the murder indictment

under Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979), must be

brought in the Superior Court.   Therefore, we reverse the order

allowing the defendant's motion to dismiss the nonmurder

indictments and remand the matter to the Superior Court.

    Background.    On November 5, 2014, the defendant and two

codefendants were involved in a shooting that resulted in the

death of Ryan Morrissey and serious injury to James Lawton.      In

April, 2015, a Suffolk County grand jury returned five

indictments against the defendant:   (1) murder, G. L. c. 265,

§ 1; (2) armed assault with the intent to murder, G. L. c. 265,

§ 18 (b); (3) assault and battery by means of a dangerous

weapon, causing serious bodily injury, G. L. c. 265,

§ 15A (c) (i); (4) unlawful possession of a firearm, G. L.

c. 269, § 10 (a); and (5) unlawful possession of a loaded
                                                                   3


firearm, G. L. c. 269, § 10 (n).   Because the defendant was

seventeen years old at the time of the shooting, the

Commonwealth brought the indictments in the Superior Court

pursuant to G. L. c. 119, § 74.

     After the arraignment on the murder indictment, the court

deferred arraignment on the nonmurder indictments for reasons

that are not apparent on the record.   The Commonwealth filed a

motion for joinder of the nonmurder indictments under Mass. R.

Crim. P. 9 (a) (1).   The defendant countered with a motion to

dismiss the nonmurder indictments, arguing that these charges

could be properly joined with the murder indictment only after

being brought first in the Juvenile Court and transferred to the

Superior Court as provided in G. L. c. 211B, § 9 (x).1   This

statute vests authority in the Chief Justice of the Trial Court

to consolidate cases pending in different departments of the

Trial Court and to assign a justice of one Trial Court

department to sit as a justice in another Trial Court

department.   More specifically, the defendant claimed that the

Commonwealth was required to bring the unlawful possession of a

firearm charge as a delinquency complaint and the remainder of




     1
       This procedure contemplates an entirely different set of
circumstances involving separate cases and the same parties that
have been filed in different trial court departments. Here,
there is only one case against the juvenile defendant.
                                                                     4


the nonmurder counts as youthful offender indictments in the

Juvenile Court.

    After a nonevidentiary hearing on the motions, the judge

denied the Commonwealth's motion for joinder and granted the

defendant's motion to dismiss.   In allowing the defendant's

motion to dismiss, the judge ruled that a juvenile defendant "is

not automatically subject to indictment, arraignment, trial, or

sentencing as an adult on . . . non-murder charges . . . that he

faces by sole reason that those charges arise from the same

circumstances upon which his murder indictment is based."      In

addition, the judge cited to two Superior Court cases in which

the Commonwealth followed the G. L. c. 211B, § 9 (x),

interdepartmental transfer procedure it opposes in this case.

This appeal followed.

    Discussion.   1.    Standard of review.   This appeal presents

an issue of statutory interpretation that we review de novo.

See Chin v. Merriot, 470 Mass. 527, 531 (2015).

    2.   Statutory interpretation.   In deciding the question

before us, we apply well-settled rules of statutory

interpretation.   "[T]he meaning of a statute must, in the first

instance, be sought in the language in which the act is framed,

and if that is plain, . . . the sole function of the courts is

to enforce it according to its terms."    Commonwealth v. Dalton,

467 Mass. 555, 557 (2014), quoting Commonwealth v. Boe, 456
                                                                    5
Mass. 337, 347 (2010).    "Where the language is clear and

unambiguous, it is to be given its 'ordinary meaning,'"

Commonwealth v. Mogelinski, 466 Mass. 627, 633 (2013), quoting

Commonwealth v. Brown, 431 Mass. 772, 775 (2000), and "it is

conclusive as to the intent of the Legislature."     Commissioner

of Correction v. Superior Court Dep't of the Trial Court, 446
Mass. 123, 124 (2006).

    Thus, we begin with the relevant statutory language:

         "The juvenile court shall not have jurisdiction over a
    person who had at the time of the offense attained the age
    of fourteen but not yet attained the age of [eighteen] who
    is charged with committing murder in the first or second
    degree. Complaints and indictments brought against persons
    for such offenses, and for other criminal offenses properly
    joined under [Mass. R. Crim. P. 9 (a) (1)], shall be
    brought in accordance with the usual course and manner of
    criminal proceedings."

G. L. c. 119, § 74.    The plain language of the statute sets

forth two directives essential to our determination whether

nonmurder indictments related to a juvenile defendant's murder

indictment must be brought in the Superior Court:     (1) it

unequivocally divests the Juvenile Court of jurisdiction over a

juvenile charged with murder; and (2) it dictates the procedure

for disposition of complaints and indictments against a juvenile

charged with murder.     As we explain, both the jurisdictional

limitation and the mandated procedure for the disposition of

charges against juveniles charged with murder are incompatible
                                                                   6


with a requirement that related nonmurder offenses be brought

first in the Juvenile Court.   We discuss each in turn.

    a.   Jurisdictional limitation.   The statutory language

divesting the Juvenile Court of jurisdiction over a juvenile

charged with murder and transferring jurisdiction over the

"person" to the Superior Court manifests a clear legislative

intent to exclude this class of juveniles from the protections

afforded to all other juveniles charged with violations of the

criminal law.   This intent is evident from G. L. c. 119, § 53,2

which excludes § 74 from the mandate that delinquency

proceedings "shall be liberally construed so that . . .

[children] shall be treated, not as criminals, but as children

in need of aid, encouragement and guidance."   Accordingly,

juveniles charged with murder are not entitled to the benefit of

a juvenile justice system that is "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. Hanson H.,

464 Mass. 807, 814 (2013), quoting Commonwealth v. Magnus M.,

    2
       General Laws c. 119, § 53, provides: "Sections [52] to
[63], inclusive, shall 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. Proceedings against
children under said sections shall not be deemed criminal
proceedings."
                                                                   7


461 Mass. 459, 461 (2012).    Read together, G. L. c. 119, §§ 53

and 74, impose a jurisdictional boundary that eliminates the

role of the Juvenile Court in the prosecution of juveniles

charged with murder.    The transfer procedure urged by the

defendant would flout the legislative intent by preserving

protections unavailable in the adult system, including the more

favorable sentencing options under G. L. c. 119, § 58,3 for the

nonmurder offenses.    Therefore, in deference to the clear

legislative intent that juveniles charged with murder be treated

as adults under the jurisdiction of the Superior Court, we

decline to interpret the statute in a manner that would defeat

that purpose.    See Commonwealth v. Walczak, 463 Mass. 808, 827

(2012) (Lenk, J., concurring) ("juveniles indicted for murder in

any degree must be treated as adults in all respects" [emphasis

in original]).

     b.   Procedure under G. L. c. 119, § 74.   Although we have

not directly addressed whether complaints or indictments for

     3
       Section 58 provides that where a juvenile is adjudicated
delinquent, "Juvenile Court judges have broad 'discretion . . .
to render individualized dispositions consistent with the best
interests of the child,'" including placing the case on file,
placing the child in the care of a probation officer, or
committing the child to the custody of the Department of Youth
Services (department). Commonwealth v. Mogelinski, 466 Mass.
627, 631 (2013), quoting Commonwealth v. Hanson H., 464 Mass.
807, 808 (2013), and citing G. L. c. 119, § 58. Where the child
is adjudicated a youthful offender, the Juvenile Court judge has
the authority to impose "a sentence provided by law," a
combination sentence, or commitment to the department until the
age of twenty-one. G. L. c. 119, § 58.
                                                                    8


related nonmurder charges must be brought in adult criminal

proceedings, the procedural framework underlying G. L. c. 119,

§ 74, points to the Superior Court as the sole venue for such

cases.   First, the statute expressly authorizes the joinder of

murder and nonmurder charges so long as they are "properly

joined" under Mass. R. Crim. P. 9 (a) (1).    This rule permits

joinder of "related" offenses, defined as conduct "aris[ing] out

of a course of criminal conduct or series of criminal episodes

connected together or constituting parts of a single scheme or

plan."   Id.   Rule 9 (a) (1) is the sole test for joinder, and

nothing in the statute implies a legislative intent to encumber

the trial of related nonmurder charges with an extraneous

transfer procedure at odds with the method for joinder expressly

provided in G. L. c. 119, § 74.   Indeed, to compel the

Commonwealth to follow the G. L. c. 211B, § 9 (x),

interdepartmental transfer procedure would require that we "read

into the statute a provision which the Legislature did not see

fit to put there" (citation omitted).    Chin, 470 Mass. at 537.

We decline to do so.

    Our conclusion that the Legislature intended to establish

rule 9 (a) (1) as the sole test for joinder of murder and

related nonmurder offenses is buttressed by the public safety

policy underlying the mandate in G. L. c. 119, § 74, to treat

juvenile defendants charged with murder as adults.    The joinder
                                                                   9


rule insures that a juvenile charged with murder is treated as

an adult for the totality of the conduct related to the murder

charge, eliminating the possibility that the conduct that does

not cause death would be adjudicated and punished differently

from how related criminal conduct that does cause death is.     Put

simply, an interpretation of the statute to permit a juvenile

defendant charged with murder to straddle the jurisdictional

fence between the Juvenile Court and the Superior Court would

undermine this policy imperative.

    Last, we address the defendant's argument that the

provision in G. L. c. 119, § 74, that complaints and indictments

"shall be brought in accordance with the usual course and manner

of criminal proceedings" cannot be interpreted to mean that

nonmurder charges must be initiated as adult criminal

proceedings where the Legislature used identical language in

G. L. c. 119, § 54, which applies only to juvenile proceedings.

We agree that the phrase does not mean that the nonmurder charge

must be brought in the Superior Court as a criminal offense.

Nor can such meaning be imputed to the phrase as it is used in

§ 54 with respect to youthful offender complaints and

indictments.   Our interpretation of this language does not

advance the defendant's position, however, because we do not

rely on this phrase in concluding that the nonmurder charges

related to a juvenile defendant's murder charge must be brought
                                                                   10


in the Superior Court.   The phrase "shall be brought in

accordance with the usual course and manner of criminal

proceedings" specifies not where the charges are to be brought,

but rather what procedures are to be applied in the trial of the

case.   In other words, the phrase as it is used in § 74, in the

context of a murder charge against a juvenile, means that the

procedures used in criminal proceedings apply to complaints and

indictments brought against juvenile defendants for murder in

any degree and for properly joined nonmurder offenses.     See

Mogelinski, 466 Mass. at 631 n.2, citing G. L. c. 119, § 74

(noting that "juveniles between the ages of fourteen and

[eighteen] who have been charged with murder in the first or

second degree . . . must be prosecuted as an adult in the

Superior Court, in accordance with the usual course and manner

of criminal proceedings"); Walczak, 463 Mass. at 827 (Lenk, J.,

concurring) ("By [G. L. c. 119, § 74,] so limiting the

jurisdiction of the Juvenile Court, the act required that a

juvenile indicted for murder be tried 'in accordance with the

usual course and manner of criminal proceedings' applicable to

adult defendants in the Superior Court").   Thus, contrary to the

defendant's argument, we see no conflict with Commonwealth v.

Quincy Q., 434 Mass. 859, 865-866 (2001), which involved only

the joinder of a juvenile delinquency complaint and a youthful

offender indictment for trial in the Juvenile Court.
                                                                   11


    Conclusion.    Where a juvenile has been indicted for murder

under G. L. c. 119, § 74, Mass. R. Crim. P. 9 (a) (1) is the

sole test for whether related offenses must be initiated in

Superior Court.   If the related nonmurder offenses are properly

joined with the murder offense under the rule, the Commonwealth

may proceed to trial in the Superior Court without the necessity

of a transfer procedure.   Therefore, we reverse the order

allowing the defendant's motion to dismiss the nonmurder

indictments, and remand this case to the Superior Court for

further proceedings consistent with this opinion.

                                    So ordered.