Commonwealth v. Fabian F., a juvenile (Lawyers Weekly No. 11-041-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 11‑P‑1705 Appeals Court COMMONWEALTH vs. FABIAN F., a juvenile. No. 11‑P‑1705. Suffolk. May 3, 2012. ‑ March 6, 2013. Present: Wolohojian, Smith, & Agnes, JJ.[1] Delinquent Child. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, Juvenile delinquency proceeding, “Two tier” court system. Juvenile Court, Delinquent child. Complaint received and sworn to in the Suffolk County Division of the Juvenile Court Department on November 30, 1987. A motion for a new trial, filed on March 9, 2010, was heard by Leslie E. Harris, J. John P. Zanini, Assistant District Attorney, for the Commonwealth. Lois J. Martin for the juvenile. WOLOHOJIAN, J. At issue is whether trial counsel was necessarily ineffective in 1988 (when the two-tiered juvenile trial system still existed[2]) for not claiming a de novo jury trial after a bench trial in which the juvenile had been adjudicated delinquent for rape of a child with force, G. L. c. 265, § 22A. Ruling on a motion for new trial filed twenty-two years later, a District Court judge concluded that the failure to claim a de novo trial, without more, constituted a form of per se ineffective assistance of counsel and allowed the juvenile’s motion. Mass.R.Crim.P. 30(c)(8), as appearing in 435 Mass. 1501 (2001). We reverse because the fact that a de novo jury trial was not pursued does not, in and of itself, establish constitutionally ineffective assistance of counsel. Background. The two year old victim’s mother, responding to the sound of the victim crying, saw the thirteen year old juvenile on top of the victim, naked from the waist down and with his penis inside of the victim’s vagina. When confronted and asked what he was doing, the juvenile put his penis back into his shorts and said that he was looking out the window. The victim was taken to Boston Children’s Hospital, where a doctor concluded that she had been “penetrated sexually.” There was redness in her vaginal area, and an acid phosphate test demonstrated the presence of seminal fluid. The juvenile was charged with forcible rape of a child. Unrelatedly, the juvenile also was charged with breaking and entering in the daytime with the intent to commit a felony, G. L. c. 266, § 18, and malicious destruction of property, G. L. c. 266, § 127. All three of these delinquency complaints […]
Commonwealth v. Valentin V., a juvenile (Lawyers Weekly No. 11-015-13)
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 12‑P‑317 Appeals Court COMMONWEALTH vs. VALENTIN V., a juvenile. No. 12‑P‑317. Berkshire. December 11, 2012. ‑ January 29, 2013. Present: Kafker, Milkey, & Agnes, JJ. Threatening. Assault and Battery. Evidence, Threat. Intimidation of Witness. Witness, Intimidation. Practice, Criminal, Dismissal. Complaints received and sworn to in the Berkshire County Division of the Juvenile Court Department on April 19, 2011. A motion to dismiss was heard by Judith A. Locke, J. John P. Bossé, Assistant District Attorney, for the Commonwealth. Peter A. Hahn for the juvenile. MILKEY, J. Based on remarks he allegedly made about assaulting a fellow student at his high school, a juvenile faced delinquency complaints that charged him with threatening a crime (assault and battery), G. L. c. 275, § 2, and witness intimidation, G. L. c. 268, § 13B. Over the Commonwealth’s objection, a judge of the Juvenile Court dismissed these charges as unsupported by probable cause. The judge relied on the absence of a showing that the threatening remarks were ever heard by their intended target (to whom we shall refer by the pseudonym “Fred”). On the Commonwealth’s appeal, we reverse. Background. The Commonwealth filed its “Application for Criminal Complaint” based on a police report, which in turn incorporated three witness statements from school officials. According to this material, on the morning of April 6, 2011, Fred walked into a classroom in which the juvenile was already present. The teacher redirected Fred elsewhere, and after he left, the juvenile “tried to leave after [Fred] stating that he was going to ‘kick [Fred’s] ass.’” The apparent source of the conflict between the students had to do with their both being under suspicion for stealing an “Xbox” video game system from the school two weeks earlier. The teacher intercepted the juvenile and convinced him to go speak with other school officials. At that meeting, the juvenile referred to Fred as a “snitch” and stated that “he was going to get him.” After the officials informed the juvenile “that he couldn’t stay in school if he was threatening another student,” the juvenile “said that he wasn’t going to hit [Fred] but, if the other students didn’t give him ‘shit’ for stealing the Xbox he would hit him.” At that point, the focus of the conversation turned to whether the juvenile was armed with […]
Commonwealth v. Avram A., a juvenile (Lawyers Weekly No. 11-018-13)
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 11‑P‑1489 Appeals Court COMMONWEALTH vs. AVRAM A., a juvenile. No. 11‑P‑1489. Franklin‑Hampshire. November 1, 2012. ‑ January 30, 2013. Present: Meade, Sikora, & Hanlon, JJ. Restitution. Damages, Restitution. Juvenile Court, Delinquent child, Probation. Practice, Criminal, Juvenile delinquency proceeding, Restitution, Probation. Complaint received and sworn to in the Franklin and Hampshire Counties Division of the Juvenile Court Department on August 20, 2010. A proceeding for revocation of probation, filed on October 20, 2011, was heard by James G. Collins, J. Craig R. Bartolomei for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. MEADE, J. After admitting to facts sufficient to warrant a finding of delinquent for “tagging” property in violation of G. L. c. 266, § 126B, the juvenile’s case was continued without a finding for one year with agreed to conditions which included the payment of restitution. On appeal, the juvenile claims the restitution order constituted an abuse of the judge’s discretion because the juvenile was unable to pay due to his age, the order was contrary to the purpose of the juvenile justice system, it was improperly extended, and it was not supported with adequate documentation and evidence. We affirm. 1. Background. After conducting a restitution hearing, the judge found the following facts. Armed with a can of spray paint, the juvenile “tagged” several properties in Easthampton. At Richard Dudkiewicz’s home, letters were spray painted on some newly installed vinyl siding on the garage. The paint could not be removed from the siding. The professional estimate to replace the siding was $ 276.45. Dudkiewicz performed the repair himself. The siding material cost him $ 160, and the job took two days to complete. Utilizing the minimum wage rate of eight dollars per hour, multiplied by fifteen hours, the judge calculated the labor cost to be worth $ 120; the professional labor estimate was $ 110. At Eric Sergal’s home, the juvenile spray painted some symbols and numerals on the concrete foundation. Sergal received a $ 500 estimate to remove the paint. The judge found that the damage to Sergal’s property was very similar in size and location to that done to the home of his neighbor, Robert Blanchette. Blanchette, who was elderly and in poor health, did not obtain an estimate for the paint removal from […]
Commonwealth v. Yardley Y., a juvenile (Lawyers Weekly No. 10-013-13)
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‑11071 COMMONWEALTH vs. YARDLEY Y., a juvenile. Hampshire. October 1, 2012. ‑ January 29, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Practice, Criminal, Plea, New trial, Interpreter, Transcript of hearing, Affidavit, Juvenile delinquency proceeding, Assistance of counsel. Constitutional Law, Plea, Assistance of counsel. Due Process of Law, Plea, Assistance of counsel. Interpreter. Complaint received and sworn to in the Hampshire County Division of the Juvenile Court Department on August 2, 1995. A motion for a new trial, filed on November 16, 2009, was heard by Lillian Miranda, J., and a motion for reconsideration was heard by her. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Barbara Kaban for the juvenile. Steven Greenbaum, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. We granted the defendant’s application for further appellate review to consider whether the Juvenile Court judge properly denied the defendant’s motion for a new trial. The defendant sought to vacate his plea because he did not knowingly and voluntarily admit to sufficient facts where no interpreter was present during his plea colloquy and where he was denied effective assistance of counsel. The Appeals Court, in a memorandum and order issued pursuant to its rule 1:28, Commonwealth v. Yardley Y., 79 Mass. App. Ct. 1123 (2011), affirmed the denial of the defendant’s motion. Because the defendant did not provide sufficient evidence to rebut the presumption of regularity of his plea proceedings and did not demonstrate he was denied the effective assistance of counsel, we affirm the denial of the defendant’s motion. Facts and procedure. We present the facts as found by the judge, supplemented by uncontested facts in the record. The defendant and his mother, Cambodian refugees and native Khmai speakers, came to the United States when the defendant was four years old. In 1995, when the defendant was fourteen years old, he was living at a Buddhist monastery with Cambodian monks in Amherst, where Khmai, rather than English, was generally spoken. On August 2, 1995, a complaint issued from the Hampshire County Division of the Juvenile Court Department charging the defendant with assault and battery by means of a dangerous weapon and indecent assault and battery on a child under the age of fourteen. It appears […]