RONALD WATTS & another [Note 1] vs. COMMONWEALTH.

IRELAND, C.J. This case requires us to decide whether St. 2013, c. 84 (act), which extended the Juvenile Court's jurisdiction to persons who are seventeen years of age at the time of

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committing an offense, applies retroactively to persons who were seventeen years of age when they committed an offense and against whom criminal proceedings had begun and were pending on September 18, 2013, the effective date of the act. We conclude that the act is not retroactive to criminal cases begun and pending before September 18, 2013, against persons who were seventeen years of age at the time of the alleged offense.

1. Background. On March 4, 2013, a complaint issued in the Quincy Division of the District Court Department charging Ronald Watts with unarmed robbery, [Note 2] assault and battery by means of a dangerous weapon, assault and battery, and malicious destruction of property. [Note 3] At the time of the alleged offenses, Watts was seventeen years of age.

On August 13, 2013, a complaint issued in the Framingham Division of the District Court Department charging Kevin Aguirre with attempt to commit a crime, malicious destruction of property, disorderly conduct, and accessory before the fact. [Note 4] At the time of the alleged offenses, Aguirre was seventeen years of age.

On September 18, 2013, the Governor signed the act, which states that it "shall take effect upon its passage." St. 2013, c. 84, § 34. As relevant here, the act amended the upper limit of the operative ages in the definitions of a "[d]elinquent child" and "youthful offender" under G. L. c. 119, § 52, from seventeen years of age to eighteen. See St. 2013, c. 84, § 7. [Note 5] Similarly, under the act, G. L. c. 119, § 54, was amended to expand the jurisdiction of the Juvenile Court to complaints alleged against

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delinquent children and indictments issued against youthful offenders to include those under eighteen years of age. St. 2013, c. 84, § 8. Further, the act amends G. L. c. 119, § 74, to state that no criminal proceeding shall be begun against any person who prior to his eighteenth birthday commits an offense against the laws of the Commonwealth without first proceeding against him as a delinquent child. St. 2013, c. 84, §§ 25, 26. The general effect of the act is to treat children accused of violating criminal statutes who are seventeen years of age at the time as delinquent children or youthful offenders, and no longer as adult criminals, and to have their cases (with certain exceptions) [Note 6] adjudicated in the appropriate Juvenile Court rather than in sessions of the Superior or District Courts.

Citing the act, the petitioners moved to dismiss the previously identified District Court charges against them, claiming that the District Courts no longer had jurisdiction over them because they were seventeen years of age, and not eighteen years of age, at the time the alleged offenses occurred and when the criminal proceedings had begun. Essentially, the petitioners claimed that the act should be applied retroactively to their pending District Court cases. Their motions were denied. The petitioners then together filed a petition for relief pursuant to G. L. c. 211, § 3, seeking that the orders denying their motions to dismiss be vacated. A single justice of this court reserved and reported the case without decision. On March 7, 2014, we issued the following order:

"Because the petitioners' District Court criminal cases [had] begun before, and were pending on, September 18, 2013, the effective date of St. 2013, c. 84, 'An Act Expanding Juvenile Jurisdiction,' it is hereby ORDERED that a judgment is to enter in the county court (SJ-2013-0462) denying the petition for relief pursuant to G. L. c. 211, [§] 3, of Ronald Watts and Kevin Aguirre. Opinion or opinions to follow."

This opinion states the reasons for that order.

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2. Discussion. We reject the petitioners' contention that, by its "plain terms," the act applies retroactively to their pending cases. [Note 7] The act states that it "shall take effect upon its passage," St. 2013, c. 84, § 34, which occurred on September 18, 2013. It also provides that "no criminal proceeding shall be begun against any person who prior to his eighteenth birthday commits an offense against the laws of the commonwealth . . . without first proceeding against him as a delinquent child." G. L. c. 119, § 74, as amended through St. 2013, c. 84, §§ 25, 26. When these provisions are read together, as relevant here, the act provides that, on and after its effective date, September 18, 2013, criminal proceedings (save those referred to in note 6, supra) may not be begun in the Superior Court or in the District Court against juveniles who were seventeen years of age at the time of the alleged offense. Thus, the act expressly protects a juvenile who is seventeen years of age and who is charged with committing a crime on or after September 18, 2013. It also protects a juvenile who was seventeen years of age at the time of an alleged offense committed before September 18, 2013, but who had not been charged until on or after September 18, 2013. Nothing in the act, however, speaks to whether its provisions should be applied retroactively to cases involving juveniles who were seventeen years of age at the time of the alleged offense and whose criminal cases in the Superior or District Court were begun prior to, and were pending on, September 18, 2013. [Note 8] Contrast Boston Edison Co. v. Massachusetts Water Resources Auth., 459 Mass. 724, 743 (2011) (calculation of interest in

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eminent domain proceedings pursuant to G. L. c. 79, § 37, as amended through St. 2004, c. 352, § 178, provided that statute "shall apply to those pending cases in which no final judgment has entered as of the effective date of this act").

When determining whether a defendant is entitled to the benefit of a statutory amendment, we have been guided by G. L. c. 4, § 6, which sets forth rules for the construction of "strictly penal" statutes. See Commonwealth v. Dotson, 462 Mass. 96, 99 (2012), citing Nassar v. Commonwealth, 341 Mass. 584, 588 (1961). The petitioners argue that G. L. c. 4, § 6, does not apply because the act's provisions only expanded the Juvenile Court's jurisdiction and did not alter the punishment for any offense. Thus, the petitioners maintain, the act is not "penal" in nature and its provisions therefore should be given retroactive effect. See Nassar v. Commonwealth, supra at 589, citing Berkwitz, petitioner, 323 Mass. 41, 46-47 (1948). We disagree.

The act does not merely make procedural changes to the Juvenile Court's jurisdiction. It changes both the nature of the proceedings against, [Note 9] and dispositional options for, [Note 10] juveniles

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who are seventeen years of age at the time of the alleged offense. The distinction between "child and adult adjudication exists partly to avoid the infringement of a child's constitutional rights, and partly to avoid the attachment of criminal stigma to children who may be amenable to rehabilitation." Commonwealth v. Connor C., 432 Mass. 635, 642 (2000), citing Metcalf v. Commonwealth, 338 Mass. 648, 651 (1959). Based on our review of the act, we conclude that "the changes are sufficiently substantive, and affect so much more than mere procedure and the amount of punishment, as to lead us to apply them only prospectively in the absence of a clearly expressed intention to have them effective retroactively," Nassar v. Commonwealth, 341 Mass. at 590; no such intention exists here. This determination makes it appropriate for us to consider the application of G. L. c. 4, § 6.

General Laws c. 4, § 6, provides, in relevant part:

"In construing statutes the following rules shall be observed, unless their observance would involve a construction inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute . . . .

"Second, The repeal of a statute shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, prosecution or proceeding pending at the time of the repeal for an offence committed, or for the recovery of a penalty or forfeiture incurred, under the statute repealed."

"Because we interpret an amendment of a penal statute to constitute an implicit repeal where 'amended sections of a statute are inconsistent with the earlier provisions,' [Commonwealth v. Dotson, 462 Mass. at 100, citing Nassar v. Commonwealth, 341 Mass. at 589], and deem a 'punishment, penalty or forfeiture' to be ' "incurred," within the meaning of [G. L. c. 4,] § 6, Second, at the time the offence for which punishment is imposed is committed,' [Commonwealth v.] Dotson, supra, quoting Patrick v. Commissioner of Correction, 352 Mass. 666, 669 (1967), 'a newly enacted [penal] statute is presumptively prospective.' Commonwealth v. Galvin, [466 Mass.] 286, 290 (2013)." Commonwealth v. Bradley, 466 Mass. 551, 553 (2013). The result of

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this presumption is to "preserve, even after legislative change of a statute, the liability of an offender to punishment for an earlier act or omission made criminal by the statute repealed in whole or in part." Nassar v. Commonwealth, supra. Indeed, "it is well settled that 'legislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms.' " Commonwealth v. Dotson, supra at 101, quoting Patrick v. Commissioner of Correction, supra.

The presumption of prospective application is not absolute. Commonwealth v. Bradley, 466 Mass. at 553. In accordance with G. L. c. 4, § 6, we must ask whether the prospective application of the legislation in question would be "inconsistent with the manifest intent of the law-making body or repugnant to the context of the same statute" (emphasis in original). Commonwealth v. Bradley, supra, quoting G. L. c. 4, § 6. These are distinct exceptions. Commonwealth v. Bradley, supra.

"The presumption of prospective application is 'inconsistent with the manifest intent of the law-making body' where there is 'a clearly expressed intention' of the Legislature that the new statute apply retroactively." Id. at 554, quoting Nassar v. Commonwealth, 341 Mass. at 590. "In ascertaining the intent of the Legislature, we look to 'all [the statutory] words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished to the end that the purpose of its framers may be effectuated.' " Commonwealth v. Bradley, supra, quoting Commonwealth v. Galvin, 466 Mass. at 290-291. "To overcome the presumption of prospective application through this first exception, inferring that the Legislature probably intended retroactive application is not enough; that intent must be 'clearly expressed.' " Commonwealth v. Bradley, supra, quoting Commonwealth v. Dotson, 462 Mass. at 101. Last, it should be noted that "[t]he Legislature may clearly express its intent through the words used in a statute or the inclusion of other retroactive provisions in the statute that would make prospective application of the provision at issue 'anomalous, if not absurd.' " Commonwealth v. Bradley, supra, quoting Commonwealth v. Galvin, supra at 291.

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As has been noted, the Legislature did not clearly express an intention that the act apply retroactively to cases in the Superior or District Court (involving persons who were seventeen years of age at the time of the alleged offense) begun before and pending on September 18, 2013. Rather, the act addresses proceedings begun on or after its effective date. See G. L. c. 119, § 74, as amended through St. 2013, c. 84, §§ 25, 26. The operative facts are not just the age of the offender at the time of the alleged offense, but also the date proceedings have "begun."

We note that there are no other provisions in the act that would render prospective application of the act "anomalous, if not absurd." Commonwealth v. Bradley, 466 Mass. at 554, quoting Commonwealth v. Galvin, 466 Mass. at 291. Our decision in Commonwealth v. Galvin does not aid the petitioners. In Commonwealth v. Galvin, supra at 286-287, we determined that the reduction in a mandatory minimum sentence required under a provision of St. 2012, c. 192 (Crime Bill), [Note 11] for violations of G. L. c. 94C, § 32A (d), applied retroactively to a defendant who committed an offense before the effective date of the statute, but whose conviction and sentencing did not occur until after that effective date. We noted that, in another section of the Crime Bill, the Legislature provided that those already serving a mandatory minimum sentence under § 32A (d) would be eligible for parole, probation, work release, and deductions in sentences for good conduct. Commonwealth v. Galvin, supra at 287. "We concluded that the Legislature's intent to make the reductions in mandatory minimum sentences retroactive under [the Crime Bill] was manifest because, otherwise, the opportunity for a reduction in sentence under the Crime Bill would be provided to those who had already been sentenced for violations of § 32A (d), but not to 'the limited class of persons who committed offenses before the amendments but were not convicted and sentenced until after the amendments' effective date.' " Commonwealth v. Bradley, 466 Mass. at 554-555, quoting Commonwealth v. Galvin, 466 Mass. at 291. In this case, the anomalies that supported retroactive

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application in Commonwealth v. Galvin, supra, are not present. The act confers no benefit on those already convicted and sentenced in the Superior or District Court for offenses committed by persons who were seventeen years of age.

The petitioners point to the purpose of the act to argue that it must be applied retroactively to them. There is no dispute that the legislative purpose of the act is to protect minors, particularly children who are seventeen years of age, from certain well-documented harms, including victimization by adult inmates and an increased risk of recidivism, that arise when children are prosecuted as if they were adults. [Note 12] These issues are significant and compelling. [Note 13] It is no help to these children, however, if they are transferred to the Juvenile Court system before the system is able to absorb them and able to provide the attending services that they need.

This point was made during the legislative debate. When testifying in support of the act, the Chief Justice of the Juvenile Court, Michael F. Edgerton, stated that, pursuant to the act, there would be "over 8,000 additional cases" in the Juvenile Court and an increase in arraignments in the Juvenile Courts of

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"about 60 [per cent]." [Note 14] See Hearing on House Bill No. 1432 (Apr. 3, 2013) (remarks of Michael F. Edgerton, Chief Justice of the Juvenile Court). In connection with his testimony, Chief Justice Edgerton submitted a report entitled "Impact of Raising the Age of Adult Criminal Responsibility in the Commonwealth of Massachusetts from 17 to 18," dated March 15, 2013 (report), which states in its introduction that "it is anticipated that implementation of the new legislation will be prospective" (emphasis added). [Note 15] The report specifies that the "increase in Juvenile Court jurisdiction to include persons [who are seventeen years of age at the time of committing the alleged offense] will add 3,508 additional persons before the court and 8,129 additional charges based upon 2011 calendar year statistics." [Note 16] The authors estimate that, to account for the new legislation, there will be a need for additional staff, including judges, clerk-magistrates, clerical staff, probation officers, "equivalent clinicians," and "forensic mental health professionals that include a

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part-time psychiatrist, psychologists and master level clinicians" to provide services to these additional juveniles. Thus, the Legislature was made aware that significant impacts would result were the act to pass and that additional staff and services were anticipated in order to implement the act going forward.

Significantly, there is no mention in the cited reports or in the legislative debate (or in the record) of the number of actual pending cases in the Superior or District Courts involving juveniles who were seventeen years of age at the time of the alleged offense, as of September 18, 2013, that, were the act to apply retroactively, would need to be dismissed for lack of subject matter jurisdiction and refiled in the Juvenile Court. [Note 17] Retroactive application of the act to these cases, as urged by the petitioners, would present potential legal and appellate issues concerning the effect of proceedings that had already taken place, such as dispositions on suppression motions and discovery disputes. For instance, the admissibility of statements made by a juvenile who was seventeen years of age to police could be challenged if the juvenile did not have the opportunity to consult with a parent, interested adult, or attorney. See Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983) (for cases involving juvenile who has reached fourteen years of age "there should ordinarily be a meaningful consultation with [a] parent, interested adult, or attorney to ensure that the [juvenile's Miranda rights] waiver is knowing and intelligent"). The practical consequences of applying the act retroactively to cases such as the petitioners' simply were not taken into consideration by the Legislature when enacting the act.

The silence here, of the Legislature and in the reports in our record, concerning this issue, examined together with the language appearing in G. L. c. 119, § 74, as amended through St. 2013, c. 84, §§ 25, 26, and the stated effective date of the act, instruct our determination. We conclude that it is the intent of the Legislature that the act applies going forward only and does not implicate cases begun and pending before September 18, 2013, in the Superior or District Court involving children who were seventeen years of age at the time of the alleged

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offense. It is not "absurd" for the Legislature to account for the significant impact of the act by deciding to draw a line and not have the act apply to juveniles who were seventeen years of age at the time of the alleged offense and whose cases had begun before, and were pending on, the act's effective date, "for all statutes must take effect as of some date." Nassar v. Commonwealth, 341 Mass. at 590-591. Last, "[t]he mere fact that some persons were at some later date governed by a law more favorable to them than the law which applied to the defendant is insufficient to strike down an otherwise valid statute; to hold the opposite would be either to eradicate all new statutes or to make them all retroactive." Commonwealth v. Galvin, 466 Mass. at 290 n.10, quoting Commonwealth v. Tate, 424 Mass. 236, 240, cert. denied, 522 U.S. 832 (1997).

Turning to the repugnancy exception, we have explained that the presumption of prospective application is "repugnant to the context of the same statute" where it would be contrary to the purpose of the statute to delay the accomplishment of that purpose. Commonwealth v. Bradley, 466 Mass. at 555-556. "While the phrase does not refer to the intent of the Legislature, and certainly does not require that the intent of the Legislature be made 'manifest,' it does compel us to discern the legislative purpose of the statute at issue and determine whether prospective application would be inconsistent with that purpose." Id. at 556. Prospective application of the act is not "repugnant" to the purpose of the act; rather, it is a realistic and informed recognition of the unavoidable complexities and attendant need for staff and services implicated in implementing the act. For these same reasons, our conclusion does not offend G. L. c. 119, § 53, which declares the legislative policy that "the operative provisions of [c. 119] be liberally construed to require rehabilitative 'aid, encouragement and guidance' rather than criminal dispositions for children who offend." Commonwealth v. Connor C., 432 Mass. 635, 641 (2000), quoting G. L. c. 119, § 53.

Our decision in Commonwealth v. Bradley, supra, does not compel a contrary result. In Commonwealth v. Bradley, 466 Mass. at 552, we dealt with whether St. 2012, c. 192, § 30, which amended G. L. c. 94C, § 32J (prior statute), by reducing the radius of a school zone from 1,000 to 300 feet, should be

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applied retroactively to cases alleging a school zone violation that had not been adjudicated before the effective date of the amendment. [Note 18] Although we concluded that there was no indication in the language of the amendment or in other provisions of enabling legislation of a manifest intent of the Legislature to apply the amendment retroactively, we held that prospective application of the amendment would be repugnant to the context of the school zone statute. Commonwealth v. Bradley, supra at 555, 559.

After its passage, the school zone radius under the prior statute was determined in "various studies" to be overbroad, having an "unfair impact on those living in urban communities," particularly minority residents. Id. at 556, 559. Where the Legislature amended the prior statute to, in part, "diminish the unfair disparate impact of the prior statute on urban and minority residents," we reasoned that it would be repugnant to the context of the statute to apply the amendment prospectively and prolong the resulting unfair disparate impact that the prior statute was having on the residents of such communities. Id. at 559. We explained:

"What distinguishes this amendment is that it was enacted to diminish the unfair disparate impact of the prior statute on urban and minority residents. Prospective application . . . affects more than the individuals charged with school zone violations; it affects all urban communities by subjecting their residents to a greater likelihood of a school zone sentencing enhancement than residents in suburban and rural communities."

Id. In this case, the act was not passed to remedy or diminish an unfair disparate impact of the prior statute on urban communities. It was enacted to effectuate reform in the criminal justice system with respect to juveniles who are seventeen years of age. Although the act is silent as to its temporal application, it was passed with

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an informed understanding that the actual implementation of such reform would likely require additional staff and services. Prospective application of the act takes these considerations into account, as well as the legal complexities and impact of the opposite construction suggested by the petitioners, and is not "repugnant" to the purpose of the act.

Last, the petitioners essentially claim that retroactive application of the act to their pending cases is required by 42 U.S.C. §§ 15601-15609 (2006), which limits Federal grant money in support of prison facilities in States that do not meet or work toward national standards promulgated by the Attorney General of the United States for preventing rape in prison. Generally, the national standards require, in order for States to receive Federal grant money, segregation of children under eighteen years of age from adult inmates, whether incarcerated or detained. See 28 C.F.R. §§ 115.5, 115.14(a) (2013). That said, if full compliance is not achieved at the time of the required annual audit, the consequence is a reduction of grant money by five per cent unless the State gives "an assurance that not less than [five per cent] of such amount shall be used only for the purpose of enabling the State to adopt, and achieve full compliance with, those national standards, so as to ensure that a certification under subparagraph (A) [that the State has adopted and achieved full compliance with the national standards] may be submitted in future years." 42 U.S.C. § 15607(c)(2)(B) (2006). The petitioners do not contest that, as of the effective date of the act, the act achieves compliance with the national standards. The fact that full compliance may not occur instantaneously is contemplated by the Federal legislation and is not a circumstance that renders prospective application of the act, as herein provided, "repugnant" to the purposes of the act. We note that Watts is now eighteen years of age and that, following his arraignment, Aguirre was released on personal recognizance. To the extent that either was or will be confined or incarcerated with adults, such issue is one for an auditor and has no bearing on our conclusion.

3. Conclusion. For the foregoing reasons, on March 7, 2014, we ordered that, "[b]ecause the petitioners' District Court criminal cases [had] begun before, and were pending on,

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September 18, 2013, the effective date of St. 2013, c. 84, . . . a judgment is to enter in the county court (SJ-2013- 0462) denying the petition for relief pursuant to G. L. c. 211, § 3, of Ronald Watts and Kevin Aguirre."