DEPARTMENT OF YOUTH SERVICES vs. A JUVENILE.

HENNESSEY, C.J. This appeal concerns the statutory process by which a juvenile under the control of the Department of Youth Services (department) may obtain review of an order extending the period of his commitment beyond his

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eighteenth birthday. The questions raised call for a construction of G. L. c. 120, Section 20, which grants a right of appeal from a judgment confirming a Department of Youth Services extended commitment order. We hold that, by the terms of the statute, a juvenile is entitled on appeal to a new trial before a jury-of-six, and to a standard of proof beyond a reasonable doubt that his release would endanger the public.

In 1978, at the age of sixteen, the defendant was adjudicated a delinquent child pursuant to G. L. c. 119, Section 58. [Note 1] The District Court committed the defendant to the custody of the department, which placed him in the juvenile unit of a State hospital. In 1979, just before the defendant's eighteenth birthday, the department issued an order extending his commitment. As required by G. L. c. 120, Section 17, the department applied for review by the original committing court, which confirmed the department's order.

The defendant, pursuant to G. L. c. 120, Section 20, appealed the confirmation judgment to the District Court jury session, and filed a demand for a jury trial. A judge sitting in jury session denied the defendant's demand and heard the case without a jury. Evidence at the hearing consisted of a psychological evaluation of the defendant, and testimony by a psychiatrist, members of the juvenile center staff, and the defendant. The judge found that the defendant had committed a number of assaults and batteries during the last six months of his detention. He concluded that the defendant's release would be "physically dangerous to the public because of his mental deficiency," and affirmed the judgment confirming the department's extended commitment order. The defendant filed notice of appeal in the Appeals Court, and we transferred the case sua sponte.

1. Mootness. The Commonwealth argues that we should dismiss this case as moot, because the defendant has already

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been released from the department's custody. [Note 2] We believe, however, that despite his release the defendant has a stake in the outcome of this appeal. Therefore, we will decide the issues presented.

A defendant convicted of crime faces a number of adverse consequences, apart from the punishment imposed by law. Commonwealth v. Jones, 382 Mass. 387, 396 (1981). Sibron v. New York, 392 U.S. 40, 55-58 (1968). See Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3 (1977). If he appears as a witness in future criminal proceedings, his previous conviction may be used to impeach him. Sibron v. New York, supra at 55-56. Commonwealth v. Jones, supra at 396. See Rule 609 of the Proposed Mass. R. Evid. (July, 1980). If he is convicted of other crimes, the prior convictions may weigh against him in sentencing, and may subject him to punishment as a criminal recidivist. Sibron v. New York, supra at 55-56. Commonwealth v. Jones, supra at 396. Recognizing these possibilities, we have held that an appellate court must vacate an erroneous conviction even when the correction will not relieve the defendant of time in prison. Commonwealth v. Jones, supra at 395-397 (convictions vacated despite concurrent valid sentence). On the same principle, we believe that we should not dismiss a criminal appeal simply because the defendant's sentence has expired. See Sibron v. New York, supra at 55-58. Cf. Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703-706 (1976).

An adjudication concerning a juvenile is not, of course, a conviction of crime. See G. L. c. 119, Section 53; Commonwealth v. Rodriguez, 376 Mass. 632, 634-637 (1978); Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 666-667 (1978). The governing statutes minimize "collateral" consequences by providing that records of delinquency or extended commitment proceedings are inadmissible against the juvenile in subsequent

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criminal trials. G. L. c. 119, Section 60. G. L. c. 120, Section 21. This statutory protection does not, however, extend to subsequent sentencing proceedings; the Commonwealth would be free to place the defendant's extended commitment record before a sentencing judge in a future criminal matter. G. L. c. 119, Section 60. G. L. c. 120, Section 21. Commonwealth v. Rodriguez, 376 Mass. 632, 638-640 (1978). [Note 3] Further, if the juvenile later appears as a State's witness in a criminal case, the defendant's right to confront and cross-examine witnesses may require admission of the juvenile's delinquency record as evidence of bias. Commonwealth v. Ferrara, 368 Mass. 182, 189 (1975). Davis v. Alaska, 415 U.S. 308 (1974). We consider these possible adverse consequences sufficient to justify our consideration of the defendant's postrelease appeal of his extended commitment order. [Note 4]

In addition, the issue in this case, even if factually moot, might be "capable of repetition, yet evading review." See, e.g., Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978); Diafario v. Commissioner of Correction, 371 Mass. 545, 552 (1976). A juvenile subject to a continued commitment order must be released after two years have passed, unless a new order is issued, reviewed, and confirmed. G. L. c. 120, Section 19. There are some indications that the present appeal might have been completed before the defendant's

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release if not for an excusable delay by the defendant's counsel. [Note 5] Nevertheless, there is a substantial likelihood that persons in the defendant's position will have difficulty in completing the appellate process before their release, and this reinforces our decision to hear and decide the present appeal. See Commissioner of Correction v. Myers, 379 Mass. 255, 260-261 (1979); First Nat'l Bank v. Haufler, 377 Mass. 209, 211 (1979); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978).

2. Right to a jury trial. The defendant asserts that he was entitled under G. L. c. 120, Section 20, and art. 12 of the Massachusetts Declaration of Rights to a jury trial on appeal of the order extending his commitment to the department's custody. We accept the statutory branch of the defendant's argument, and therefore we do not address his constitutional claim. [Note 6]

An analysis of G. L. c. 120, Section 20, which provides for appellate review of extended commitment orders, must begin with a description of the series of statutes to which Section 20 belongs. Ordinarily, the department's custody of a delinquent juvenile terminates when the juvenile reaches age eighteen. G. L. c. 120, Section 16. However, if the department believes that discharge would create a public danger, it may issue an order extending the juvenile's commitment. G. L. c. 120, Section 17. Upon issuing such an order, the department must apply for review by the court that originally committed the juvenile to its care. Id. The court must then notify the juvenile of the department's action, and conduct a full hearing, at which the juvenile is entitled to counsel and an opportunity to compel the attendance of witnesses and the production of evidence. G. L. c. 120, Section 18. After the

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hearing, the court shall confirm the department's order if it finds "that discharge of the person to whom the order applies would be physically dangerous to the public because of his mental or physical deficiency, disorder, or abnormality." Id.

At this point G. L. c. 120, Section 20, the section upon which this appeal focuses, comes into play. Section 20 provides that a juvenile who contests the judgment of the District Court may appeal to a District Court jury session, and that the "appeal shall be taken in the manner provided by law for appeal to the said session from judgments of a justice sitting without jury in criminal cases." [Note 7]

In its natural sense, this language incorporates the statutes governing criminal appeals in the District Courts. Turning to G. L. c. 278, Section 18, we find that a defendant who has waived a jury trial in the first instance and submitted to trial by a District Court judge may appeal and claim a new trial before a jury-of-six in the District Court jury session. Id. Costarelli, petitioner, 378 Mass. 516, 517 (1979). See, in addition, G. L. c. 218, Sections 26A, 27A. This legislative sequence strongly supports the defendant's claim. Further, we have interpreted a similar reference to normal criminal procedure in a related statutory context as a mandate for a jury trial. Commonwealth v. Thomas, 359 Mass. 386, 387-388 (1971). The statute at issue in Thomas authorized a juvenile adjudged delinquent by a District Court to appeal to Superior Court, and provided that the appeal

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should be "tried and determined in like manner as appeals in criminal cases." G. L. c. 119, Section 56, as amended through St. 1964, c. 308, Section 1. We concluded that this language entitled the juvenile to a new trial before a jury in Superior Court. Commonwealth v. Thomas, supra at 388. [Note 8] See Miaskiewiez v. Commonwealth, 380 Mass. 153, 156-157 (1980).

The Commonwealth, however, contends that extended commitment, unlike delinquency adjudication, is a "dispositional" issue, analogous to sentencing. Therefore, in the Commonwealth's view, it is a matter within the exclusive province of the court, and should not be submitted to a jury. See Mass. R. Crim. P. 28, 29, 378 Mass. 898 , 899 (1979). Cf. Commonwealth v. Marino, 254 Mass. 533, 536 (1926); Commonwealth v. Crapo, 212 Mass. 209, 210 (1912). To harmonize this position with Section 20, the Commonwealth suggests that the statutory language incorporating District Court procedure in criminal appeals refers to sentencing procedure, cf. Commonwealth v. Rodriguez, 376 Mass. 632, 639 (1978); A Juvenile, petitioner, 364 Mass. 531, 534-536, 538 (1974), and that the words "jury session" denote only the forum in which these procedures are to take place.

Although we agree with the Commonwealth that judges have a broad dispositional function under the juvenile statutes, see G. L. c. 119, Sections 39G, 58, 61; Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 667 (1978); A Juvenile v. Commonwealth, 370 Mass. 272, 277-283 (1976); A Juvenile, petitioner, supra at 536-539, we believe that the Legislature intended that extended commitment be treated as a matter for independent determination rather than an extension of prior juvenile

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proceedings. "Juvenile" jurisdiction ends when a child reaches eighteen; the court in its juvenile session has no authority to commit a person over eighteen to the care of the department. G. L. c. 119, Section 72. The provision for extended commitment appears in a separate chapter of the General Laws, and calls for a new determination of fact, independent from the original delinquency adjudication. The trier must find that, at the time of the extended commitment hearing, the person under consideration is dangerous to the public due to a mental or physical disorder. G. L. c. 120, Section 18. In other contexts, the Legislature has entrusted similar issues to the discretion of judges sitting without juries, see G. L. c. 119, Section 61 (transfer of juvenile cases to criminal docket); G. L. c. 123, Section 8 (commitment of mentally ill persons); G. L. c. 123A, Sections 5, 6 (commitment of sexually dangerous persons); Commonwealth v. Nassar, 380 Mass. 908, 915-916 (1980); Andrews, petitioner, 368 Mass. 468, 479 (1975), but when it has done so it has not provided for appeal to a jury session as it has in Section 20. Compare G. L. c. 119, Sections 391, 56 and G. L. c. 120, Section 20, with G. L. c. 119, Section 61, G. L. c. 123, Section 9, and G. L. c. 123A, Section 6. Indeed, a provision for appeal to the jury session would have little practical meaning if read to require only the opinion of a second trial judge on a dispositional issue.

We hold, therefore, that by the terms of G. L. c. 120, Section 20, the defendant was entitled to appeal the judgment confirming the department's extended commitment order for trial before a jury-of-six in the District Court session. Accordingly, we vacate the judgment entered in jury session by a judge sitting without a jury. See Commonwealth v. A Juvenile (No. 2), ante 390, 393-394 (1981).

3. Standard of Proof. The defendant also contends that his extended commitment could not be confirmed unless the State had proved beyond a reasonable doubt that he suffered from a mental or physical disorder, and that his release would endanger the public. [Note 9] In light of our conclusion in

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the previous section of this opinion -- that the Legislature intended procedure on appeal of an extended commitment to conform to procedure on appeal of an adult criminal conviction -- the question of standard of proof can quickly be resolved in the defendant's favor. Proof beyond a reasonable doubt is one of the most basic elements of our criminal process. In re Winship, 397 U.S. 358, 363 (1970). Andrews, petitioner, 368 Mass. 468 (1975). We have often recognized that this fundamental standard applies not only to "criminal" proceedings, but also to proceedings that bear a "civil" or "nonpunitive" label, but are sufficiently analogous to determinations of guilt to require a high degree of certainty in findings of fact. In re Winship, supra at 365-366, 368 (opinion of the Court), 370-371 (Harlan, J., concurring). Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 275-277 (1978). Andrews, petitioner, supra at 486-491. This is not to say that proof beyond a reasonable doubt is constitutionally required in every commitment proceeding; the Legislature retains some leeway to provide for protective or rehabilitative confinement based upon a lesser standard of proof. Addington v. Texas, 441 U.S. 418, 433 (1979). See Commonwealth v. Travis, 372 Mass. 238, 251 (1977). Constitutional boundaries, however, are not at issue in this case. Under Section 20, an extended commitment proceeding is -- as we have explained -- to be treated in like manner as a criminal conviction. Accordingly, we believe that the Legislature intended that grounds for extended commitment must be proved beyond a reasonable doubt.

The defendant also argues that he was entitled on equal protection grounds to a standard of proof beyond a reasonable doubt. We need not decide this constitutional issue in light of our holding that G. L. c. 120, Section 20, mandates a standard of proof beyond a reasonable doubt.

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In sum, we hold that G. L. c. 120, Section 20, entitles a person subject to a Department of Youth Services extended commitment order to appeal a District Court confirmation of that order for trial before a jury-of-six. We also conclude that to justify extended commitment, the State must prove beyond a reasonable doubt that release would create a public danger, due to the subject's mental or physical disorder. Therefore, we vacate the judgment entered in jury session affirming the District Court judge's confirmation of the order.

So ordered.