Opinion
No. 11–P–1040.
2012-10-2
COMMONWEALTH v. FERGUS F., a juvenile.
By the Court (COHEN, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On March 15, 2011, a complaint issued against the juvenile charging him with wilful disturbance of a school or other lawful assembly in violation of G.L. c. 272, § 40. Over the Commonwealth's objection, a judge of the Juvenile Court dismissed the complaint immediately after the defendant was arraigned, explaining from the bench that he would not “waste court time on an issue that should be resolved within the school department.”
Because we conclude that the Commonwealth's appeal has merit, we vacate the dismissal and remand for further proceedings.
While this appeal was pending, the judge prepared a memorandum expressing additional reasons why, in his view, dismissal was appropriate. The Juvenile Court transmitted that memorandum to this court; however, because it was issued after a stay of appellate proceedings had been vacated, the juvenile does not rely upon it, and it is not included in the record appendix. We therefore do not consider it.
The judge erred in dismissing the case without first taking a plea from the defendant or otherwise following the procedures described in G.L. c. 278, § 18. See Commonwealth v. Cheney, 440 Mass. 568, 571 (2003) (“[A]s concerns cases pending in the Juvenile Court ... a dismissal ‘in the interests of public justice’ is only available in compliance with the terms of G.L. c. 278, § 18”), discussing Commonwealth v. Tim T., 437 Mass. 592, 595–597 (2002) (absent the Commonwealth's consent, judge could not grant pretrial probation to a juvenile defendant without obtaining a guilty plea or admission to sufficient facts as required by G.L. c. 278, § 18). Because the dismissal failed to comport with the plain language of the statute, it also violated well-established principles of separation of powers under art. 30 of the Declaration of Rights of the Massachusetts Constitution. However well-intentioned the judge may have been, he did not have the authority to substitute his judgment for that of the prosecutor as to the wisdom of pursuing the complaint. See, e.g., Commonwealth v. Gordon, 410 Mass. 498, 500 (1991) (a judge may not “exercise[ ] discretionary decision-making power to decide whether a complaint, legally valid, should be pursued”); Commonwealth v. Pellegrini, 414 Mass. 402, 404 (1993) (“Article 30 creates a separation of powers ... granting the prosecutor exclusive power to decide whether to prosecute a case”); Commonwealth v. Pyles, 423 Mass. 717, 720 (1996) (“A decision to enter a nolle prosequi on a criminal charge rests with the executive branch of government and, absent a legal basis, cannot be entered over the prosecutor's objection”); Commonwealth v. Cheney, supra at 574 (“The conclusion that judicial power does not extend to authorize a judge to dismiss an otherwise legally adequate indictment, prior to verdict, finding, or plea, in the ‘interests of public justice’ is inescapable”).
Given the present posture of the case, where the procedures of Mass.R.Crim.P. 13(a) and (c), as appearing in 442 Mass. 1516 (2004), were not followed, and the record on the point is inadequate for decision, we reject the juvenile's suggestion that we may affirm the dismissal on the alternate ground that the juvenile was subjected to an unlawful arrest and an erroneously issued complaint. Accordingly, we vacate the order of dismissal and remand for further proceedings. In light of the views expressed by the judge, we think a fresh look is appropriate, and therefore direct that further proceedings be held before a different judge.
So ordered.