Commonwealth v. Mogelinski (Lawyers Weekly No. 10-200-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us       SJC‑11331   COMMONWEALTH  vs.  MATTHEW MOGELINSKI. Franklin‑Hampshire.     September 3, 2013.  ‑  December 23, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Juvenile Court, Jurisdiction, Delinquent child.  Jurisdiction, Juvenile Court, Juvenile delinquency proceeding.  Practice, Criminal, Juvenile delinquency proceeding, Transfer hearing, Issuance of process, Complaint, Indictment.  Delinquent Child.  Youthful Offender Act.  Words, “Apprehension.”       Indictments found and returned in the Superior Court Department on December 5, 2011.   After transfer to the Franklin and Hampshire Counties Division of the Juvenile Court Department, questions of law were reported to the Appeals Court by Judith J. Phillips, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Jeffrey S. Brown for the defendant. Cynthia M. Pepyne, Assistant District Attorney, for the Commonwealth. John Cushman & Patricia Garin, for Committee for Public Counsel Services, amicus curiae, submitted a brief.       LENK, J.  This case concerns the jurisdiction of the Juvenile Court.[1]  The Commonwealth filed five delinquency complaints against the defendant when he was seventeen, charging him with rape of a child under sixteen, G. L. c. 265, § 23, and indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B, based on an alleged seven-year period of sexual abuse of the victim.  Although summonsed into court on those complaints while still seventeen years old, the defendant had turned eighteen by the time of his first scheduled court appearance and arraignment.  More than six months later, the Commonwealth obtained youthful offender indictments against the defendant, based on the portion of the alleged abuse that took place when he was between fourteen and seventeen years old. Pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004), a judge of the Juvenile Court reported four questions concerning issues of the Juvenile Court’s jurisdiction: “1.  Whether the term ‘apprehended’ as appearing in G. L. c. 119, § 72[,] and G. L. c. 119, § 72A[,] refers to the time when a complaint is issued against an individual, or to when an individual is summoned for arraignment, or when an individual voluntarily appears in response to a summons or complaint and submits to the jurisdiction of the court at arraignment, or when an individual is arrested, or taken into custody pursuant to a complaint issued by the court?   “2.  Whether an individual may be indicted […]

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