Opinion
No. 2637
08-08-2016
FREDDIE NICHOLAS PAOLETTI, JR. v. STATE OF MARYLAND
UNREPORTED
Arthur, Reed, Eyler, James R. (Retired, Specially Assigned), JJ. Opinion by Arthur, J. * This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
In 2014, the State's Attorney for Cecil County obtained an indictment charging Freddie Nicholas Paoletti with numerous counts of second-degree and fourth-degree sexual offenses. The alleged offenses had occurred almost 30 years earlier in 1985, a few months after Paoletti had turned 16.
Although Paoletti allegedly committed the offenses when he was still a juvenile, the State charged and tried him as an adult. A jury convicted him of nine counts of second-degree sexual offense. The circuit court sentenced Paoletti to three, consecutive 12-year terms of incarceration and suspended the sentences on the remaining six counts.
Paoletti took a timely appeal.
QUESTIONS PRESENTED
Paoletti presents 11 issues, but we need only decide the first, which we have rephrased as follows: Did the circuit court lack subject-matter jurisdiction to decide the case because Paoletti should have been charged, in the first instance, as a juvenile? We hold that the circuit court lacked subject-matter jurisdiction to try, and eventually to convict, Paoletti as an adult.
In the interest of concision and completeness, we have listed Paoletti's 11 questions in Appendix A to this opinion.
Paoletti did not raise his jurisdictional challenge in the circuit court. Nonetheless, "[t]he issue[] of jurisdiction of the trial court over the subject matter . . . may be raised in and decided by the appellate court whether or not raised in and decided by the trial court." Md. Rule 8-131(a); see Casey v. Mayor and City Council of Rockville, 400 Md., 259, 322 (2007) (a court "may render an opinion regarding a question not previously raised where the issue involves the trial court's subject matter jurisdiction over the action"); County Council of Prince George's County v. Dutcher, 365 Md. App. 399, 405 n.4 (2001) ("[l]ack of subject matter jurisdiction may be raised at any time, including initially on appeal[,]" and "the issue of subject matter jurisdiction need not be raised by a party, but may be raised by a court sua sponte").
We shall reverse Paoletti's convictions and remand the case to the circuit court for further proceedings consistent with this opinion. We decline to reach the merits of the ten other questions that Paoletti presents.
FACTUAL AND PROCEDURAL BACKGROUND
Because we decide this case on jurisdictional grounds, it is unnecessary to engage in a detailed recitation of the evidence at Paoletti's two-day trial. Suffice it to say that, according to the evidence at trial, Paoletti sexually abused his cousin, N., on multiple occasions during the summer of 1985. N. was seven years old at that time. Although N. disclosed the alleged abuse to a relative when he was 20, he did not complain to the authorities until 2014, when he was 37.
Some of the evidence at trial suggested that when Paoletti was a child, he had been sexually abused by N.'s father, who was Paoletti's uncle.
DISCUSSION
Paoletti contests the circuit court's jurisdiction to try him as an adult for the second-degree sexual offense that he allegedly committed as a juvenile. Although Paoletti's brief does not discuss the boundaries between juvenile and circuit court jurisdiction at the time of his alleged offenses, the State, with admirable candor, acknowledges that in 1985, "the juvenile court had exclusive original jurisdiction over a second-degree sexual offense if committed by a person under the age of 18 years at the time the offense was committed." See Md. Code (1974, 1984 Repl. Vol.), § 3-804(d) of the Courts and Judicial Proceedings Article ("CJP 1984").
As Appendix B to this opinion, we have attached a copy of Title 3, Subtitle 8, of the Courts and Judicial Proceedings as it stood in 1984.
At the time of Paoletti's alleged offenses in 1985, the juvenile court did have the power to waive its exclusive original jurisdiction over a child who (like Paoletti) was 15 years old or older, so as to permit a criminal prosecution in circuit court. CJP 1984 § 3-817(a). Absent such a waiver, however, a person subject to the exclusive original jurisdiction of the juvenile court could not be prosecuted for a criminal offense committed before he or she reached 18 years of age. Id., § 3-807(a).
In 1994, almost nine years after Paoletti's alleged offenses, the General Assembly added the crime of second-degree sexual offense, committed with force or the threat of force, by a person who was 16 years of age or older, to the list of offenses over which a juvenile court did not have exclusive original jurisdiction. 1994 Md. Laws ch. 641. As a consequence of the 1994 legislation, the State could commence a prosecution in the circuit court against a 16- or 17-year-old child who was alleged to have committed that specific kind of a second-degree sexual offense. The 1994 legislation remained in effect at the time of Paoletti's indictment in 2014 and remains in effect today. See Md. Code (1974, 2013 Repl. Vol.), § 3-8A-03(d)(4) of the Courts and Judicial Proceedings Article ("CJP 2013").
The 1994 legislation is available on the Archives of Maryland Online website, http://aomol.msa.maryland.gov/html/laws.html, which contains the records of the General Assembly and its predecessors from 1635 to the present.
In indicting Paoletti as an adult and proceeding against him in the circuit court, the State evidently contemplated that the current law, as adopted in 1994, applied to the offenses that Paoletti allegedly committed as a 16-year-old youth in 1985. Paoletti's jurisdictional challenge requires us to decide whether the circuit court's power over him is governed by the law at the time of his alleged offenses or by the law at the time of the indictment.
This is a matter of significant import. Under the law in effect in 1985, the 16-year-old Paoletti would have been deemed to have committed a delinquent act, and not to have committed a crime. CJP 1984 § 3-801(k) (defining "delinquent act" as "an act which would be a crime if committed by an adult"). Absent the juvenile court's considered decision to waive its jurisdiction, the proceedings against him would have been civil in nature (see, e.g., In re Victor B., 336 Md. 85, 91 (1994)), and Paoletti would not have been subjected to punishment, but would have been afforded treatment, guidance, and rehabilitation. Smith v. State, 399 Md. 565, 580-81 (2007). By contrast, because the State charged Paoletti as an adult and succeeded in convicting him of crimes, he is now facing as much as 36 years - effectively the rest of his life - behind bars, for offenses that he allegedly committed before he was an adult.
The passage of time alone does not transform a delinquent act into a crime and divest the juvenile court of jurisdiction. See In re Saifu K., 187 Md. App. 395, 407 (2009) (rejecting the State's argument "that the character of a juvenile offense that could not have been prosecuted in the criminal court because of the juvenile's age when the act was committed could be transformed into a criminal act that the State could prosecute in adult criminal court should the State wait until the respondent turns 21"); see also CJP 2013 § 3-8A-05(a) ("[i]f a person is alleged to be delinquent, the age of the person at the time the alleged delinquent act was committed controls the determination of jurisdiction under this subtitle"); CJP 1984 § 3-805(a) (same).
In defending the convictions, the State argues that the juvenile court's jurisdiction is controlled by the "law in effect at the time the charging document is filed," not the law in effect when the offense was allegedly committed. At the time of the "charging document" in this case, the 1994 amendment, as expressed in CJP 2013 § 3-8A-03(d)(4), dictated that the juvenile court "does not have jurisdiction over" a "child at least 16 years old" who is alleged to have committed a second-degree sexual offense in violation of Md. Code (2002, 2012 Repl. Vol.), § 3-306(a)(1) of the Criminal Law Article. Therefore, the State concludes that the juvenile court did not have jurisdiction over the charges against Paoletti.
In support of its argument that jurisdiction is controlled by the "law in effect at the time the charging document is filed," the State relies on In re Appeals Nos. 1022 and 1081, 278 Md. 174 (1976) ("In re Appeals"), and Parojinog v. State, 282 Md. 256 (1978). We reject the State's argument, because those cases concern how a juvenile court should proceed when a change of law affects a proceeding over which the juvenile court has exclusive original jurisdiction; they do not concern the situation in this case, in which a change of law has removed a category of cases from the juvenile court's exclusive original jurisdiction and placed them within the circuit court's jurisdiction.
In In re Appeals, the defendants were 17-year-old juveniles at the time of their offenses, but 18-year-old adults at the time when the petitions were filed. See In re Appeals, 278 Md. at 176. Under former CJP § 3-807(b) (Supp. 1975), the juvenile court retained "exclusive original jurisdiction, but only for the purpose of waiving it, over an adult who is alleged to have committed a delinquent act while a child." The juvenile court determined that it was inappropriate to waive its jurisdiction and to permit the cases to proceed as criminal prosecutions in circuit court. In re Appeals, 278 Md. at 176. The juvenile court then dismissed the cases, reasoning that former CJP § 3-807(b) precluded it from exercising jurisdiction once it had decided not to waive its jurisdiction. Id.
On appeal, the State argued, among other things, that because the alleged offenses had occurred before the effective date of former CJP § 3-807(b), the statute did not apply. Id. at 179-80. The Court of Appeals rejected that contention because "the jurisdiction of the juvenile court did not attach until" the filing of the juvenile petitions, which occurred "after the effective date of [former] § 3-807(b)." Id. at 180. In other words, In re Appeals holds that, in a case over which the juvenile court has exclusive original jurisdiction, it applies the law that is in effect at the time when it acquires its jurisdiction through the filing of a juvenile petition, not the law in effect at the time when the juvenile allegedly committed the offense. See id. In re Appeals does not address the effect of a change of law that divests the juvenile court of exclusive original jurisdiction after a juvenile commits an offense, but before the State brings charges.
Parojinog is much like In re Appeals, except that the State filed the juvenile petition against Parojinog before rather than after the effective date of former § 3-807(b). Like the respondents in In re Appeals, Parojinog was 18 when the State filed the petition, but 17 when he allegedly committed the delinquent acts. Parojinog, 282 Md. at 257-58. The juvenile court eventually waived its jurisdiction (id. at 258-59), but not before ordering Parojinog to pay restitution and to undergo therapy. Id. When the State later indicted Parojinog on adult criminal charges, he argued that he was being subjected to double jeopardy because the juvenile court had made a de facto adjudication of guilt and imposed punishment. Id. at 259. The Court of Appeals agreed. Id. at 262-63.
In reaching its decision, the Court rejected the State's contention that jeopardy could not have attached in the juvenile court because under former § 3-807(b) that court had jurisdiction only to waive it. As in In re Appeals, the Court reasoned that "[i]t is the time the petition is filed, not the time of adjudication, which determines the jurisdiction of the juvenile court and the applicability of [sec. 3-807(b)]." Parojinog, 282 Md. at 265. In contrast to In re Appeals, however, the State had filed Parojinog's juvenile petition before former § 3-807(b)'s effective date; therefore, the statute did not "divest[]" the juvenile court of jurisdiction to make an adjudication and disposition. Id.
Like In re Appeals, Parojinog concerns the rules that a juvenile court must apply in a case that begins within its exclusive original jurisdiction. Like In Re Appeals, Parojinog holds that the juvenile court must apply that law that was in effect at the time when it obtained jurisdiction through the filing of the petition, not the law that was in effect at the time of the allegedly delinquent acts or at the time of the adjudication. Neither In re Appeals nor Parojinog concern the specific problem in this case: which court has subject-matter jurisdiction if the General Assembly removes an offense from the juvenile court's exclusive original jurisdiction after a person has allegedly committed the offense, but before the State brings charges?
In citing In re Appeals and Parojinog for the proposition that the juvenile court's jurisdiction is controlled by the "law in effect at the time the charging document is filed," the State engages in a measure of equivocation. In re Appeals and Parojinog do not talk about "charging documents"; they talk about juvenile petitions. They talk about juvenile petitions because they are concerned only with determining how a juvenile court must respond to changes in the law in cases within its exclusive original jurisdiction. In re Appeals and Parojinog say that the juvenile court applies the law in effect when it acquires jurisdiction, which is at the time of the petition, and not at the time of the offense or the time of the adjudication. They say nothing about whether the State may file a "charging document" in circuit court to prosecute a person for an offense that was within the exclusive original jurisdiction of the juvenile court at the time when he or she allegedly committed it.
To address whether the 1994 amendment could divest the juvenile court of jurisdiction over Paoletti's alleged misconduct in 1985 and vest jurisdiction in an adult, criminal court, we look, first, to the principles concerning retroactive legislation. The question of whether a law applies retroactively "ordinarily is one of legislative intent[,]" and "[i]n determining such intent . . . , there is a general presumption in the law that an enactment is intended to have purely prospective effect." Langston v. Riffe, 359 Md. 396, 406 (2000) (citation and quotation marks omitted). "In the absence of clear legislative intent to the contrary, a statute is not given retro[a]ctive effect." Id. at 406 (citation and quotation marks omitted).
The Court of Appeals adheres to four principles concerning the retroactive application of statutes:
(1) statutes are presumed to operate prospectively unless a contrary intent appears; (2) a statute governing procedure or remedy will be applied to cases pending in court when the statute becomes effective; (3) a statute will be given retroactive effect if that is the legislative intent; but (4) even if intended to apply retroactively, a statute will not be given that effect if it would impair vested rights, deny due process, or violate the prohibition against ex post facto laws.Pautsch v. Md. Real Estate Comm'n, 423 Md. 229, 263 (2011) (citation omitted); see id. (stating that first step is to "determine whether the [General Assembly] intended the statute to have the kind of retroactive effect that is asserted").
We need not consider the second, third, and fourth principles, because it is, at best, ambiguous whether the General Assembly intended the 1994 amendment to operate retroactively.
Section 2 of Chapter 641 of the Laws of 1994 states simply that the legislation "shall take effect October 1, 1994." The language does not expressly state whether the legislation applies to conduct that occurred before October 1, 1994, but that the State does not prosecute until some later date. In fact, one could reasonably interpret the uninformative language to mean that it applies only to conduct that occurs after October 1, 1994. Because the General Assembly did not unambiguously express its intention that the 1994 amendment should apply retroactively to conduct that predated its effective date, we must presume that it operates prospectively - i.e., that it applies only to conduct that occurs thereafter.
In contrast to the 1994 amendment, later amendments unambiguously state that they "only apply to offenses committed on or after [the effective date] and may not be construed to apply in any way to offenses committed before [that date]." 1996 Md. Laws, ch. 632, § 3; 2000 Md. Laws, ch. 288, § 3 (emphasis added). The absence of similar language in the 1994 amendment suggests that the General Assembly might have intended that amendment to apply to offenses that were committed before October 1, 1994, but prosecuted thereafter. On the other hand, in the later legislation, the General Assembly may simply have found a way to unambiguously express the intention that it had held all along. The unambiguous formulation in the later legislation does not eliminate the ambiguity in the 1994 legislation.
In reaching this conclusion, we are guided by the principle that "a court will, whenever reasonably possible, construe and apply a statute to avoid casting serious doubt upon its constitutionality." VNA Hospice of Maryland v. Dept. of Health and Mental Hygiene, 406 Md. 584, 606 (2008) (citation and quotation marks omitted). See Harryman v. State, 359 Md. 492, 509 (2000) (reciting principle that "an interpretation which raises doubts as to a legislative enactment's constitutionality should be avoided if the language of the act permits"); Curran v. Price, 334 Md. 149, 172 (1994) ("[i]f a statute is susceptible of two reasonable interpretations, one of which would involve a decision as to its constitutionality, the preferred construction is that which avoids the determination of constitutionality").
It would raise serious constitutional questions if the 1994 amendment, as reflected in CJP 2013 § 3-8A-03(d)(4), were construed to apply retroactively to permit the State to punish and imprison a person who would previously have been subject only to civil, remedial measures absent a waiver of the juvenile court's exclusive original jurisdiction. See U.S. Const. Art. I, § 1 ("[n]o State shall . . . pass any . . . ex post facto Law"); Md. Decl. of Rts., Art. 17 ("That retrospective Laws, punishing acts committed before the existence of such Laws, and by them only declared criminal, are oppressive, unjust and incompatible with liberty; wherefore, no ex post facto Law ought to be made; nor any retrospective oath or restriction be imposed, or required"). To avoid a potentially unconstitutional construction of CJP 2013 § 3-8A-03(d)(4), we hold that it does not apply to offenses that were allegedly committed before its effective date of October 1, 1994.
As an additional ground for our decision, we rely on the rule of lenity, which "instructs that courts will not interpret a . . . criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what [the legislature] intended." Gardner v. State, 420 Md. 1, 16 (2011) (citations and quotation marks omitted). It is, at best, ambiguous as to whether the General Assembly, in 1994, intended to authorize serious criminal penalties against persons like Paoletti, who had allegedly committed offenses as juveniles, under a statutory scheme that envisioned only civil, remedial measures unless the juvenile court waived its jurisdiction. Applying the rule of lenity, therefore, we hold that CJP 2013 § 3-8A-03(d)(4) does not apply to offenses that were allegedly committed before its effective date of October 1, 1994.
Because CJP 2013 § 3-8A-03(d)(4) does not apply to offenses that were allegedly committed before October 1, 1994, the statute did not divest the juvenile court of its exclusive original jurisdiction over Paoletti's alleged offenses. Nor did CJP 2013 § 3-8A-03(d)(4) permit the State to pursue criminal charges against Paoletti in circuit court without a waiver of the juvenile court's jurisdiction. Unless and until the juvenile court waived its jurisdiction, the circuit court lacked subject-matter jurisdiction over the charges against Paoletti.
We realize that it is highly unusual to require a potential criminal proceeding against a middle-aged man to commence in the juvenile court. The unusual nature of the proceeding, however, is a result of the unusual nature of this case. The State is pursuing criminal charges against Paoletti for acts that he allegedly committed more than three decades ago, when, in the contemplation of the law, he was still a child. At the time of the alleged offenses, the juvenile court would have had exclusive original jurisdiction over Paoletti, and the 1994 amendment did not (and more than arguably could not) divest that court of its jurisdiction. The circuit court, therefore, lacked subject-matter jurisdiction to consider and decide the criminal charges against Paoletti.
Because the circuit court lacked subject-matter jurisdiction, the trial and convictions were a nullity. See Franklin v. State, 264 Md. 62, 67 (1972). Consequently, constitutional and common-law principles of double jeopardy do not prohibit the State from instituting proceedings against Paoletti in the court that has exclusive original jurisdiction - the juvenile court. See Tipton v. State, 8 Md. App. 91, 94-95 (1969) (no double jeopardy as a result of retrial after acquittal by tribunal that lacked jurisdiction to try defendant).
At the close of the State's case-in-chief, the court granted Paoletti's motions for judgment of acquittal on one count of second-degree sexual offense and 10 counts of fourth-degree sexual offense. Because the circuit court trial was a nullity, double jeopardy would not appear to preclude the State from including those offenses in a petition in the juvenile court.
If the State files a juvenile petition against Paoletti, the juvenile court, upon notice and a hearing, may decide whether to waive its exclusive original jurisdiction. See CJP 2013 § 3-8A-06. "'[A] waiver hearing held with respect to an adult who,'" like Paoletti, "'had allegedly committed delinquent acts must be conducted according to the same standards that would have been applicable if the State proceeded against him while still a child.'" In re Saifu K, 187 Md. App. 395, 407 (2009) (quoting In re Appeals, 287 Md. at 179). The State may not prosecute Paoletti for his alleged offenses against N. unless the juvenile court has waived its jurisdiction. See CJP 2013 § 3-8A-07(d). Because Paoletti is over 21 years of age and is alleged to have committed a delinquent act while he was a child, the juvenile court has exclusive original jurisdiction "only for the purpose of waiving it." Id., § 3-8A-07(d); CJP 1984 § 3-817.
Although all the evidence at trial indicated that the alleged offenses occurred in the summer of 1985, a few months after Paoletti turned 16, Paoletti seizes upon N.'s statement at sentencing that the offenses occurred "over thirty years ago." Because the sentencing occurred on January 15, 2015, Paoletti argues that the offenses may have before 1985, when he was only 15. Under the view that we take of the case, the alleged discrepancy is inconsequential. Under the law that was in effect in both 1984 and 1985, the juvenile court could waive its exclusive original jurisdiction over Paoletti if he was "15 years old or older" at the time of the delinquent act. See CJP 1984 § 3-817(a). --------
JUDGMENTS OF THE CIRCUIT COURT FOR CECIL COUNTY REVERSED. CASE REMANDED WITH INSTRUCTIONS TO DISMISS THE INDICTMENT AND FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY CECIL COUNTY.
APPENDIX A
Paoletti originally phrased his eleven issues for appeal as follows:
1. The circuit court lacked jurisdiction, as the defendant should have been charged and tried as a juvenile.
2. The circuit court erred in allowing the indictment to proceed, as the defendant was prejudiced by extreme pre-indictment delay.
3. The circuit court erred in asking the jury, during voir dire, whether the 29-year time lapse in bringing charges would prevent the jurors from being fair and impartial in this case.
4. The circuit court erred in allowing an unduly prejudicial photograph of the complaining witness at the age of seven years old to be admitted and viewed by the jury.
5. The circuit court erred in allowing illegally obtained wiretap evidence (one-party consent telephone calls) to be admitted into evidence.
6. The circuit court erred in allowing an audiotape of a custodial interrogation of the appellant to be admitted into evidence, when said audiotape contained inadmissible hearsay that was unduly prejudicial to the appellant.
7. The circuit court erred in allowing to be admitted evidence regarding text messages that were illegally obtained, not properly authenticated, and contained inadmissible hearsay.
8. The circuit court erred in allowing numerous instances of inadmissible hearsay evidence to be heard by the jury.
9. The evidence presented by the state was insufficient, and the circuit court erred in failing to grant the appellant's motion for judgment of acquittal, in light of the insufficient evidence offered at trial.
10. The circuit court erred by instructing the jury to disregard the appellant's statement that he had never been accused before, thus drawing attention to the statement and implying to the jury that he had faced similar accusations in the past.
11. The circuit court erred by considering improper factors at sentencing.
APPENDIX B
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