Makis M. v. Commonwealth

232 N.E.3d 671

494 Mass. 23

MAKIS M., a juvenile

v.COMMONWEALTH.

SJC-13476

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 8, 2024.

Decided May 7, 2024.

West Codenotes

Limitation Recognized

Mass. Gen. Laws Ann. ch. 123, § 16(f)

Delinquent Child. Youthful Offender Act. Due Process of Law, Juvenile delinquency proceeding, Competency to stand trial, Substantive rights. Juvenile Court, Delinquent child. Incompetent Person, Criminal charges. Practice, Criminal, Juvenile delinquency proceeding, Defendant’s competency, Dismissal. Statute, Construction. Constitutional Law, Judiciary, Separation of powers.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on July 20, 2023.

The case was reported by Wendlandt, J.

Debbie F. Freitas (Cristina F. Freitas also present) for the juvenile.

Kristen W. Jiang, Assistant District Attorney, for the Commonwealth.

Sarah LoPresti, Committee for Public Counsel Services, for youth advocacy division of the Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.

GAZIANO, J.

₂₄Shortly after midnight on April 13, 2021, a juvenile was apprehended inside an apartment building with two guns and ammunition. He was charged by delinquency complaint, indicted, and prosecuted by the Commonwealth for various offenses arising out of this incident. After arraignment as a youthful offender, the juvenile was diagnosed with a language-based learning disorder, among other information-processing disorders, and two inquiries were made into his competency to stand trial.¹

In March 2022, at the conclusion of his first competency proceeding, the juvenile was found not competent to stand trial but capable of attaining competency in the foreseeable future. The judge also considered whether the juvenile could attain competency in the foreseeable future through remediation. Remediation in this context refers to interventions designed to help the juvenile attain competency, such as special education. After being found incompetent, the juvenile twice filed motions to dismiss under G. L. c. 123, § 16 (f), the statute governing the dismissal of pending charges against incompetent persons. Both motions were denied in the fall of 2022.

In June 2023, the juvenile was again found incompetent to stand trial following a second competency proceeding. However, when asked directly by the juvenile's counsel whether "the court [was] finding [the juvenile] able to be remediated," i.e., able to attain competency in the foreseeable future, the judge declined to make a definite finding. Although the juvenile could "answer some of the questions that are germane to competency," the judge found that the competency hearing had not "focused on his ability to learn." She further found that "there is no program available in Massachusetts" that could be "beneficial to [the juvenile] with regard[ ] to remediating any issues of incompetency." If there were such a "remediation program that was specific to individuals with intel- lectual disabilities" available in the Commonwealth, the judge said, she would order the juvenile to attend that program.

In the meantime, the juvenile remains subject to numerous conditions of release and pending delinquency and youthful offender charges. The cases against him cannot move forward because he has been found incompetent to stand trial and, in the absence of any remediation programming within the Common wealth,₂₅ is not likely to attain competency in the foreseeable future.²

This case came before us on reservation and report of a single justice to the full court and raises three main issues. The first issue is whether the mental health code, G. L. c. 123, provides for the remediation of incompetent juveniles, particularly those incompetent but not mentally ill. The second issue is whether, in the absence of remediation programming under the mental health code, the ability to create and mandate remediation programming is within the scope of the Juvenile Court’s inherent authority. Lastly, this court must decide whether the pending charges against the juvenile can be dismissed under G. L. c. 123, § 16 (f), "in the interest of justice."

To the first issue, we agree with both parties that G. L. c. 123, §§ 15 and 16, do not provide for the remediation of juveniles found incompetent for reasons other than mental illness. To the second issue, we reject the Commonwealth’s contention that the ability to create and mandate remediation programming for incompetent juveniles falls within the purview of the Juvenile Court’s inherent authority. Rather, the creation of remediation programming falls within the purview of the Legislature. To the last issue, that of dismissal under G. L. c. 123, § 16 (f), we remand this matter to the Juvenile Court for further findings on whether the juvenile poses a present danger to the community.³

1. Facts. Our discussion of the facts draws from the parties’ comprehensive statement of facts, prepared pursuant to the reservation and report of the single justice on August 7, 2023, as well as the record.

In the early morning hours of April 13, 2021, police investigated a breaking and entering at a residential apartment building. At the scene, investigators apprehended the juvenile and an adult, who were in possession of a large capacity firearm, a loaded firearm with a defaced serial number, and a significant amount of ammunition.

Later that day, the juvenile was charged by delinquency complaint with seven offenses: breaking and entering a building in the nighttime to commit a felony, G. L. c. 266, § 16; carrying a ₂₆loaded firearm without a license, G. L. c. 269, § 10 (n); two counts of possession of a large capacity firearm, G. L. c. 269, § 10 (m); possession of ammunition without a firearm identification card, G. L. c. 269, § 10 (h); defacing a firearm serial number, G. L. c. 269, § 11C; and possession of burglarious instruments, G. L. c. 266, § 49. The juvenile was arraigned the same day and entered a plea of not delinquent. At his arraignment, the Commonwealth moved for the pretrial detention of the juvenile under G. L. c. 276, § 58A, on the basis of dangerousness. Three days later, the judge allowed this motion and detained the juvenile.

On July 1, 2021, an Essex County grand jury indicted the juvenile as a youthful offender on two firearms charges, G. L. c. 269, § 10 (a). He was arraigned on July 15, 2021, and entered a plea of "not youthful offender." Again, the Commonwealth moved for the pretrial detention of the juvenile under § 58A on the basis of dangerousness and, again, the juvenile was ordered detained.

After 140 days of detention, on August 31, 2021, the judge released the juvenile under eight conditions, including "home lockdown" and the use of global positioning system services to track his location. Two more conditions were added to the juvenile’s release in October 2021. However, on November 23, 2021, a notice of a technical violation of probation was issued for the juvenile. The next day, the juvenile was detained and held for another 125 days.

After counsel for the juvenile raised concerns, two inquiries were made into the juvenile’s competency. The juvenile was first found incompetent to stand trial on March 28, 2022, after a series of hearings beginning on February 15, 2022. These hearings included the testimony of three expert witnesses, two for the juvenile and one for the Commonwealth. In their reports, the experts noted that the juvenile had previously been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, a language-based learning disability, posttraumatic stress disorder, and mood dysregulation. They also weighed the juvenile’s neuropsychological evaluation, which indicated that the juvenile had been enrolled in an individualized education program at school from a young age and "overall [was] functioning in the borderline range cognitively and academically." Ultimately, the judge found the juvenile incompetent, noting that the juvenile did not understand the role of the jury.

In her written findings, the judge further found that it was likely the juvenile would attain competency to stand trial within a ₂₇reasonable period of time. She based this conclusion on the report of the Commonwealth’s expert, as well as the juvenile’s neuropsychological evaluation. The juvenile was released the next day with six further conditions added to his existing conditions of release.

After this initial finding of incompetency, the juvenile moved to dismiss his pending delinquency charges pursuant to G. L. c. 123, § 16 (f), in September 2022. Given both the March 2022 finding of incompetency and the implications of his impending eighteenth birthday (in late November 2022) on his pending delinquency charges, the juvenile requested that his next competency hearing be scheduled as soon as possible. The juvenile filed a renewed motion to dismiss his pending delinquency charges pursuant to G. L. c. 123, § 16 (f), in November 2022, which was denied later that month.

The juvenile was found incompetent to stand trial for the second time on June 6, 2023, by the same judge, following extended competency proceedings that included the testimony of the same three experts. One of the juvenile’s experts diagnosed him with borderline intellectual impairment and executive dysfunction, along with his preexisting diagnoses. She explained that, while the juvenile may be able to "remember definitions" or "memorize some of the factual knowledge," it was nevertheless "unlikely that his rational understanding and his ability to help his attorney is going to change." In their evaluations, the two experts for the juvenile opined that the juvenile could not be remediated, and all three experts noted deficits in his understanding. The judge also took judicial notice of the fact that the juvenile had been found incompetent to stand trial at two...