COMMONWEALTH vs. A JUVENILE.

DREBEN, J. After a transfer hearing pursuant to G. L. c. 119, Section 61, a District Court judge ordered the issuance of a criminal complaint against the fourteen year old defendant and ordered him bound over to the Superior Court for trial as an adult. The defendant was subsequently convicted on

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indictments charging him with operating a motor vehicle negligently so that the lives or safety of the public might be endangered (G. L. c. 90, Section 24[2][a]) and with using a motor vehicle without authority, knowing that such use is unauthorized (G. L. c. 90, Section 24[2][a]).

In this appeal from those convictions he challenges the process by which he was transferred from the juvenile system to the Superior Court to be handled there as if he were an adult, on a number of grounds: (1) that neither of the alleged offenses with which he was charged was an offense "involving the infliction or threat of serious bodily harm" as required by G. L. c. 119, Section 61, as appearing in St. 1975, c. 840, Section 1; (2) that if the language of Section 61 is interpreted to include the offenses with which he was charged, such an interpretation would be such an unforeseeable departure from precedent as to violate his rights to due process under the Fourteenth Amendment to the United States Constitution; and (3) that the District Court judge's findings, which included only one subsidiary finding, were deficient. We agree with the defendant's third contention, but not with his other two.

The matter comes to us on a statement of proceedings [Note 1] pursuant to M.R.A.P. 8(c), as amended, 378 Mass. 933 (1979). The reference to the transfer hearing is sparse and states merely that "On February 21, 1978, after a hearing, the Court . . . ordered the juvenile complaints dismissed and adult complaints to issue." The order of the District Court is reproduced in the margin [Note 2] and is on Uniform Form DCM-12,

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prescribed by District Municipal Courts Special Rule 208 (1976). The material italicized in note 2 is in the judge's handwriting; the remainder is the official form.

After he was indicted, the defendant moved in the Superior Court for dismissal of the indictments on a number of grounds, including those now argued on appeal. A judge sitting in the Superior Court denied the motions and ruled "as a matter of law" [Note 3] that the District Court's transfer order was sufficient on its face to meet the requirements of c. 119, Section 61. He also ruled that the offense of operating negligently,

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so that the lives or safety of the public might be endangered, is a transferable offense as it is one involving "the infliction or threat of serious bodily harm" within the meaning of G. L. c. 119, Section 61. [Note 4] On the same date as his motions to dismiss were denied, the defendant was tried jury waived and found guilty on both indictments.

We shall discuss first whether there was a transferable offense under G. L. c. 119, Section 61. The defendant argues that he was not charged with an offense "involving the infliction or threat of serious bodily harm" as required by Section 61, and, therefore, that there was no statutory basis for conducting a

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transfer hearing [Note 5] and no jurisdiction in the Superior Court. Commonwealth v. Clark, 379 Mass. 623, 626 (1980). He claims the word "threat" requires an intent to do harm and that an offense charging recklessness or negligence is not the subject of transfer. We disagree.

Prior to its amendment by St. 1975, c. 840, Section 1, G. L. c. 119, Section 61, provided that a child could be bound over to face prosecution for any criminal offense, no matter how trivial, including violations of city ordinances or town by-laws, "if the court is of the opinion that the interests of the public require that he should be tried for said offense or violation, instead of being dealt with as a delinquent child . . . ." After the Legislature, in response to Breed v. Jones, 421 U.S. 519 (1975), had sent to the Governor an amended Section 61 (to separate transfer hearings from the adjudicatory hearing on the charge), the Governor sought additional changes in the statute. His proposals narrowed the scope of the offenses for which a child may be criminally prosecuted and also provided standards for deciding which children should be transferred. Message of Governor, 1975 House Doc. No. 6808. As originally proposed by the Governor, clause (b) of the first paragraph of Section 61 would have made transferable only those offenses "involving the infliction or threat of serious bodily harm which, if [committed by] an adult, would be punishable by imprisonment in the state prison" (emphasis supplied). 1975 House Doc. No. 6808, at 3. However, the Legislature eliminated the italicized words from clause (b). See 1975 House Journal 3084. Thus, under the bill which was enacted, the District Court has jurisdiction under clause (b) to bind over a child for an offense, whether it be a felony or only a misdemeanor, so long as the offense involves the "infliction or threat of serious bodily harm."

One of the meanings of "threat," as defined in the American Heritage Dictionary of the English Language

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(1976) at 1340, is "An indication of impending danger or harm." [Note 6] The first phrase of the disjunction, i.e., the "infliction of . . . harm," has no requirement that the infliction of harm be intentional, and we see nothing to indicate that the second phrase, "threat . . . of harm," should be construed differently. There is nothing either in the language of the statute or in its legislative history which limits "threat of . . . harm" to intentional threats. Contrast N.J. Rev. St. Section 2A:4-48 (Supp. 1980), which allows transfer where there is cause to believe a juvenile "committed an offense against the person in an aggressive, violent and willful manner." The Legislature has also in other contexts used the term "threat" to include nonintentional threats, e.g., G. L. c. 90, Section 22(a), as appearing in St. 1969, c. 637 (registrar may revoke license after violation of motor vehicle law, if he has reason to believe that continued operation constitutes "immediate threat to the public safety"); G. L. c. 21C, Section 7, inserted by St. 1979, c. 704, Section 2 (requiring certification that hazardous waste does not "constitute a danger to public health . . . or a threat to the environment"). There is at least one other statute where, as here, the word "threat" covers both meanings. General Laws c. 276, Section 42A, inserted by St. 1978, c. 447, Section 5, permits a court to impose such terms as will insure the safety of a person on a complaint "which involves the infliction, or the imminent threat of infliction, of physical harm upon a person . . . ." We think that the natural reading of Section 61 is that it authorizes transfers where an offense involves a danger (threat) of serious bodily harm.

The defendant urges that his construction is supported by legislative intent. We do not agree. In A Juvenile v. Commonwealth, 370 Mass. 272, 281-282 (1976) (hereinafter referred to as Juvenile I), and again in A Juvenile v. Commonwealth (No. 1), 380 Mass. 552, 559 (1980) (Juvenile II), the Supreme Judicial Court stated that "the Legislature intended

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that noncriminal treatment is to be favored and that transfer should be ordered only when warranted by exceptional circumstances." See also G. L. c. 119, Section 53, providing for liberal construction of the provisions of Sections 52-63 inclusive. [Note 7] The legislative preference for noncriminal treatment is a significant and useful guide to a judge exercising discretion under Section 61 and other provisions of c. 119 relating to delinquent minors, and it is in the context of discretionary action that the Supreme Judicial Court, in Juvenile I and Juvenile II, spoke of legislative intent. We note that c. 119, Section 53, is also directed primarily to the discretion of the trial judge. As indicated earlier, supra at 389, when Section 53 of c. 119 was enacted in 1906, jurisdiction existed under Section 61 to transfer a juvenile for any offense, including violations of a town by-law, and the judge's discretion was only limited by the welfare of the child and the interests of the public.

In any event, even if the cited legislative preference is relevant in construing the jurisdictional question, it is not of assistance here. It sheds no light on what is meant by the term "threat," and does not support the conclusion that any offense involving an intentional threat, e.g., simple assault, is more appropriate for transfer than an offense which endangers the lives of the public. It may be that such a distinction is advisable as a matter of policy, but, if so, that decision is one for the Legislature. Section 61, clause (b), first paragraph, provides jurisdiction for transfer of offenses "involving the infliction or threat of serious bodily harm." We hold that the offense of operating a motor vehicle negligently "so that the lives or safety of the public might be endangered"

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(G. L. c. 90, Section 24[2][a], as appearing in St. 1975, c. 156, Section 1) [Note 8] is such an offense. [Note 9]

Since we conclude that the use of this meaning of the word "threat" is a natural one and would be understood by persons of ordinary intelligence as applying to the offense charged here, there is no unforeseeable departure from precedent. We, therefore, find no merit in the defendant's due process argument. Cf. Stokes v. Commonwealth, 368 Mass. 754, 772-773 (1975).

We turn next to the question whether the process of transfer was flawed by reason of a "[s]erious deficiency in the subsidiary findings." Juvenile II, 380 Mass. at 558. Because the decision of transfer is "critically important," Kent v. United States, 383 U.S. 541, 560 (1966); see also Juvenile I, 370 Mass. at 281; Juvenile II, 380 Mass. at 559, extra measures of evidentiary protection for transfer proceedings have been provided by the Legislature and by court rule.10

By statutory mandate, the standard of proof in such cases must be "clear and convincing." G. L. c. 119, Section 61. The judge must make written findings that the child presents a

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significant danger to the public and is not amenable to rehabilitation, and must consider enumerated factors set forth in Section 61. In addition, the Supreme Judicial Court has held that subsidiary findings are of "vital significance." Juvenile II, 380 Mass. at 558. This is both to ensure the "utmost" judicial care in making the decision of transfer, see Custody of a Minor (No. 1), 377 Mass. 876, 885-886 (1979), and to permit meaningful review. Kent v. United States, 383 U.S. at 561. See also Cesarone v. Cesarone, 329 Mass. 217, 220 (1952); Moran v. Moran, 5 Mass. App. Ct. 787, 788 (1977).

The transfer order here does not meet these requirements. Moreover, it suffers from virtually the same deficiencies as did the order which was vacated in Juvenile I. In that case, where an intentional homicide was alleged, the Supreme Judicial Court held that the nature of the offense by itself could not demonstrate the need for transfer; otherwise, juvenile facilities would be restricted without legislative sanction to the treatment of those charged with minor offenses. Juvenile I, 370 Mass. at 282-283. The case was remanded because there was an absence of subsidiary findings showing that the juvenile could not be rehabilitated within the juvenile structure as well as an absence of subsidiary findings indicating the basis for such a conclusion. Juvenile II required even more specificity in the necessary supporting findings for the crucial conclusion of nonamenability to rehabilitation. Juvenile II, 380 Mass. at 559-562.

Here, the only subsidiary finding made by the judge, see note 2, supra, was that the defendant had been committed to the Department of Youth Services on eight separate occasions. Reliance solely on the child's past record of delinquent behavior to show that the juvenile cannot be rehabilitated stands on the same footing as reliance solely on the nature of the offense. Permitting such a basis for transfer would restrict, without legislative sanction, the juvenile system to persons who do not have lengthy records of delinquent behavior, see Juvenile I, 370 Mass. at 283, and would allow transfer without taking into account other significant

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factors required by the statute. In the absence of subsidiary findings, the present transfer order fails to show that "the nature of any past treatment efforts for the child" (c. 119, Section 61), a highly relevant factor, or any of the other specific statutory factors were given adequate consideration.

There are also no subsidiary findings supporting a conclusion based on "clear and convincing evidence" that the child poses a significant danger to the public. The fact that there is jurisdiction to transfer for a specific offense does not render nugatory the additional requirement that the judge must weigh, among other things, the seriousness of the particular offense in determining whether transfer should be ordered. Instead of using Uniform Form DCM-12, see note 10, supra, as a helpful aid and reminder in making subsidiary findings, the District Court judge used it as a substitute for those findings.

We remand the matter to the Superior Court to be remanded to the District Court for a new hearing on the issue whether a transfer was appropriate on February 21, 1978. See Haziel v. United States, 404 F.2d 1275, 1281-1282 (D.C. Cir. 1968); Kemplen v. Maryland, 428 F.2d 169, 178 (4th Cir. 1970); Powell v. Hocker, 453 F.2d 652, 657 (9th Cir. 1971); Knott v. Langlois, 102 R.I. 517, 530 (1967). The new hearing is to be conducted in accordance with the proper standards under G. L. c. 119, Section 61, and is to be held promptly in view of the rapid approach of the juvenile's seventeenth birthday. If it should appear after such hearing that a transfer was not appropriate on February 21, 1978, the date of the original transfer, the defendant shall be treated as a delinquent child and will be entitled on motion in the Superior Court to a vacation of his convictions. If adequate revised findings indicate that the transfer was appropriate, the convictions will stand. See Juvenile II, 380 Mass. at 562-563; Kemplen v. Maryland, 428 F.2d at 178. See also Kent v. United States, 383 U.S. at 565.

So ordered.