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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]