In re Tyriq. T. ( 2014 )

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IN RE TYRIQ T.*
(SC 19153)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.**
Argued March 20—officially released August 19, 2014
Joshua Michtom, assistant public defender, with
whom was Sharon Elias, assistant public defender, for
the appellant (respondent).
Nancy L. Chupak, senior assistant state’s attorney,
with whom were Francis Carino, supervisory assistant
state’s attorney, and, on the brief, Maureen Platt, state’s
attorney, and John Davenport, supervisory assistant
state’s attorney, for the appellee (state).
Marsha L. Levick and Hannah Benton filed a brief for
the National Center for Youth Law et al. as amici curiae.
Opinion
ESPINOSA, J. In this certified appeal, we are called
upon to decide whether a trial court’s interlocutory
order granting a motion seeking a discretionary transfer
of a respondent’s case from the docket for juvenile
matters to the regular criminal docket of the Superior
Court pursuant to General Statutes (Supp. 2014) § 46b-
127 (b) (1)1 is a final judgment for purposes of appeal.
In the present case, the respondent, Tyriq T., appealed
to the Appellate Court after his juvenile case was trans-
ferred to the regular criminal docket pursuant to § 46b-
127 (b) (1). The Appellate Court dismissed the appeal
for lack of a final judgment, and the respondent
appealed to this court. We granted the respondent’s
petition for certification, limited to the following ques-
tion: ‘‘Did the Appellate Court properly dismiss the
[respondent’s] appeal for lack of a final judgment?’’ In
re Tyriq T., 309 Conn. 904, 68 A.3d 659 (2013). We
answer the question in the affirmative, concluding that
the clear intent of the legislature is to prohibit interlocu-
tory appeals from discretionary transfer orders. Accord-
ingly, we affirm the judgment of the Appellate Court.
The record reveals the following relevant procedural
background. The respondent, who was sixteen years
old at the time of his arrest, was charged as a juvenile
with carrying a pistol without a permit in violation of
General Statutes (Rev. to 2011) § 29-35 (a), possession
of a weapon in a motor vehicle in violation of General
Statutes § 29-38, and theft of a firearm in violation of
General Statutes § 53a-212. The state filed a motion to
transfer his case to the regular criminal docket of the
Superior Court at Waterbury and, pursuant to § 46b-
127, the trial court held a hearing over two days. After
making the requisite factual findings, the court granted
the state’s motion and ordered the respondent’s case
to be transferred to the regular criminal docket.
The respondent filed a timely appeal to the Appellate
Court. Thereafter, the Appellate Court, sua sponte,
ordered the parties to appear and argue whether the
respondent’s appeal should be dismissed due to the
lack of a final judgment.2 After a hearing, the court
dismissed the respondent’s appeal.3 This certified
appeal followed.
On appeal, the respondent argues that it is clear that
the legislature did not intend to prohibit interlocutory
appeals of discretionary transfer orders because § 46b-
127 (b) is silent as to whether an interlocutory appeal
can be taken from a discretionary transfer order. He
maintains also that the genealogy of the discretionary
transfer provision and language from a related provision
in § 46b-127 that was added in 2010 support his posi-
tion.4 Public Acts, Spec. Sess., June, 2010, No. 10-1, § 30
(adding subsection [f] to General Statutes [Supp. 2010]
§ 46b-127). In response, the state argues that the intent
of the legislature to prohibit interlocutory appeals of
discretionary transfer orders is evidenced by the dele-
tion of the final judgment language from General Stat-
utes (Rev. to 1993) § 46b-127. Public Acts, Spec. Sess.,
July, 1994, No. 94-2, § 6.
We agree with the state that the legislature expressed
a clear intent to prohibit the immediate appeal of discre-
tionary transfer orders. As we explain herein, although
the current statutory text of § 46b-127 does not resolve
the question of whether a discretionary transfer order
constitutes a final judgment for purposes of appeal, we
conclude, on the basis of the genealogy of the transfer
provisions, read together with this court’s interpreta-
tion of the legislative intent evident from the prior
amendments to those provisions, that under the current
statutory language a discretionary transfer order cannot
be immediately appealed. This interpretation of the dis-
cretionary transfer provision results in a harmonious
and consistent body of law with respect to all of the
transfer provisions currently contained in § 46b-127.
It is well settled that this court has subject matter
jurisdiction only over appeals from final judgments.
Abreu v. Leone, 291 Conn. 332, 338, 968 A.2d 385 (2009).
‘‘The legislature may, however, deem otherwise inter-
locutory actions of the trial courts to be final judgments,
as it has done by statute in limited circumstances. See,
e.g., General Statutes § 31-118 (authorizing appeals
from temporary injunctions in labor dispute); General
Statutes § 52-278l (authorizing appeals from prejudg-
ment remedies); see also W. Horton & K. Bartschi, [Con-
necticut Practice Series: Connecticut Rules of Appellate
Procedure (2009 Ed.)], §§ 61-2 through 61-11.’’ Abreu
v. Leone, supra, 338. Because ‘‘[t]he right of appeal is
purely statutory’’; State v. Curcio, 191 Conn. 27, 30,
463 A.2d 566 (1983); we must consider whether the
legislature has deemed discretionary transfer orders
final judgments.
Whether the legislature intended discretionary trans-
fer orders issued pursuant to § 46b-127 (b) (1) to be final
judgments for purposes of appeal presents a question of
statutory interpretation over which we exercise plenary
review. See Ugrin v. Cheshire, 307 Conn. 364, 379, 54
A.3d 532 (2012). ‘‘When construing a statute, [o]ur fun-
damental objective is to ascertain and give effect to the
apparent intent of the legislature. . . . In other words,
we seek to determine, in a reasoned manner, the mean-
ing of the statutory language as applied to the facts
of [the] case, including the question of whether the
language actually does apply. . . . In seeking to deter-
mine that meaning, General Statutes § 1-2z directs us
first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered. . . .
When a statute is not plain and unambiguous, we also
look for interpretive guidance to the legislative history
and circumstances surrounding its enactment, to the
legislative policy it was designed to implement, and to
its relationship to existing legislation and common law
principles governing the same general subject matter
. . . .’’ (Internal quotation marks omitted.) Kasica v.
Columbia, 309 Conn. 85, 93, 70 A.3d 1 (2013).
Consistent with these principles of statutory interpre-
tation, we turn first to the language of the statute. The
current version of § 46b-127 provides for three types
of transfers of a case that charges a juvenile with an
offense: (1) mandatory transfers from the docket for
juvenile matters to the regular criminal docket of the
Superior Court (mandatory transfer provision); General
Statutes (Supp. 2014) § 46b-127 (a);5 (2) discretionary
transfers from the docket for juvenile matters to the
regular criminal docket of the Superior Court (discre-
tionary transfer provision); General Statutes (Supp.
2014) § 46b-127 (b); and (3) transfers of cases of youths
age sixteen or seventeen from the youthful offender
docket, regular criminal docket of the Superior Court
or any docket for the presentment of defendants in
motor vehicle matters, to the docket for juvenile mat-
ters (youthful offender transfer provision). General
Statutes (Supp. 2014) § 46b-127 (f).6
The transfer provision at issue in the present case,
the discretionary transfer provision, provides: ‘‘Upon
motion of a prosecutorial official, the superior court for
juvenile matters shall conduct a hearing to determine
whether the case of any child charged with the commis-
sion of a class C, D or E felony or an unclassified felony
shall be transferred from the docket for juvenile matters
to the regular criminal docket of the Superior Court.
The court shall not order that the case be transferred
under this subdivision unless the court finds that (A)
such offense was committed after such child attained
the age of fourteen years, (B) there is probable cause
to believe the child has committed the act for which
the child is charged, and (C) the best interests of the
child and the public will not be served by maintaining
the case in the superior court for juvenile matters. In
making such findings, the court shall consider (i) any
prior criminal or juvenile offenses committed by the
child, (ii) the seriousness of such offenses, (iii) any
evidence that the child has intellectual disability or
mental illness, and (iv) the availability of services in
the docket for juvenile matters that can serve the child’s
needs. Any motion under this subdivision shall be made,
and any hearing under this subdivision shall be held,
not later than thirty days after the child is arraigned in
the superior court for juvenile matters.’’ General Stat-
utes (Supp. 2014) § 46b-127 (b) (1).
In the current version of the statute, both the discre-
tionary transfer and mandatory transfer provisions are
silent as to whether those transfers are final judgments
for purposes of appeal. Thus, one reasonably could
conclude that the legislature did not intend to allow
interlocutory appeals of discretionary transfers. See
Marchesi v. Board of Selectmen, 309 Conn. 608, 618, 72
A.3d 394 (2013) (‘‘it is a well settled principle of statu-
tory construction that the legislature knows how to
convey its intent expressly . . . or to use broader or
limiting terms when it chooses to do so’’ [citation omit-
ted; internal quotation marks omitted]). In contrast, the
youthful offender transfer provision explicitly provides
that a transfer pursuant to that subsection is not a
final judgment for purposes of appeal. General Statutes
(Supp. 2014) § 46b-127 (f). Thus, solely on the basis of
the statutory text, one also could conclude that the
legislature did not intend to prohibit interlocutory
appeals of discretionary transfer orders because it did
not state so explicitly, as it did in the youthful offender
transfer provision. See M. DeMatteo Construction Co.
v. New London, 236 Conn. 710, 717, 674 A.2d 845 (1996)
(omission of language in one provision of statute that
is included in provision of statute of similar subject
matter suggests different legislative intent). Because
the statutory text is susceptible to two reasonable inter-
pretations, and does not definitively resolve the inter-
pretation issue presented, we turn our attention to
extratextual sources. See State v. Heredia, 310 Conn.
742, 759, 81 A.3d 1163 (2013).
The legislature’s intent to prohibit interlocutory
appeals of discretionary transfer orders is evident after
examining the genealogy of the transfer provisions, as
well as the case law that has interpreted the previous
revisions of those provisions. Section 46b-127 did not
always contain three transfer provisions. In 1979, the
legislature amended the transfer provisions, so that the
mandatory transfer provision was set forth in § 46b-
127;7 see General Statutes (Rev. to 1981) § 46b-127;8 and
the discretionary transfer provision was set forth in
§ 46b-126 (a).9 See General Statutes (Rev. to 1981) § 46b-
126 (a).10 The youthful offender transfer provision had
not yet been enacted. At that time, both the discretion-
ary and mandatory transfer statutes were silent as to
whether those transfer orders were final judgments for
purposes of appeal. From 1979 until 1985, the statutes
were amended several times, but none of the changes
addressed whether those transfer orders were final
judgments for purposes of appeal.11
In 1985, this court concluded in In re Juvenile Appeal
(85–AB), 195 Conn. 303, 306, 488 A.2d 778 (1985), that
discretionary transfer orders pursuant to General Stat-
utes (Rev. to 1981) § 46b-126 (a) were not final judg-
ments for purposes of appeal. See footnote 10 of this
opinion. Relying on State v. Curcio, supra, 191 Conn.
27, this court concluded that it did not have jurisdiction
to consider the transfer order because it did not satisfy
the second prong of Curcio, namely that the order did
not so conclude the rights of the parties that further
proceedings could not affect them. In re Juvenile
Appeal (85–AB), supra, 307–14. Thus, the court con-
cluded that the discretionary transfer order was not a
final judgment. Id., 306. The court rejected the defen-
dant’s contention that the confidentiality of juvenile
proceedings could not be restored and that incarcera-
tion of a juvenile in an adult prison while awaiting trial
or pending appeal may result in irreparable harm. Id.,
307–308, 312–13. The court noted that ‘‘[t]he practical
considerations which have led us to dismiss interlocu-
tory appeals from the denial of applications for youthful
offender treatment [in State v. Longo, 192 Conn. 85, 90,
469 A.2d 1220 (1984)] apply with virtually equal force
to the transfer of [the] defendant from the juvenile
division to the regular criminal session of the Superior
Court.’’ In re Juvenile Appeal (AB–85), supra, 312.
Thus, the court was not ‘‘persuaded that the potential
for harm to juvenile offenders from erroneous transfer
orders is so much greater in kind or degree than that
which a seventeen year old, improperly denied the bene-
fits of youthful offender treatment, may suffer in
awaiting redress on appeal from a final judgment that
a different conclusion from that reached in State v.
Longo, supra, [90] as to the availability of an interlocu-
tory appeal is warranted.’’ In re Juvenile Appeal (85–
AB), supra, 313.
In 1986, in response to this court’s decision in In re
Juvenile Appeal (AB–85), the legislature amended both
the discretionary and mandatory transfer statutes by
inserting the following language into both §§ 46b-126
and 46b-127: ‘‘An order by the court under this section
transferring a child from the docket for juvenile matters
to the regular criminal docket of the superior court
shall be a final judgment for purposes of appeal.’’12 The
inclusion of such language expressed a clear legislative
intent to permit interlocutory appeals of those transfer
orders. See Abreu v. Leone, supra, 291 Conn. 338.
The legislature made mostly identical changes to the
discretionary and mandatory transfer statutes between
1989 and 1993,13 but in 1994, the legislature amended
only the mandatory transfer statute, § 46b-127, remov-
ing the final judgment language from that provision.14
Because § 46b-126 was not amended at that time, the
final judgment language remained in the discretionary
transfer statute.
In In re Daniel H., 237 Conn. 364, 366–67, 678 A.2d
462 (1996), although the issue was whether the 1994
amendment applied retroactively to the respondents,
this court was required to interpret the changes made
by the 1994 amendment. In doing so, the court con-
cluded that the amendment ‘‘eliminated the right to an
immediate appeal from a court order transferring a
juvenile matter to the regular criminal docket . . . .’’
Id., 367. Thus, the court decided that the 1994 amend-
ment deleting the final judgment language from § 46b-
127 was a ‘‘postponement of the respondents’ right to
appeal, until after a final judgment had been rendered
. . . .’’ Id., 375–76; see also In re Michael S., 258 Conn.
621, 630–31 n.11, 784 A.2d 317 (2001) (This court
observed that during the debate on the amendment that
deleted the final judgment language from the mandatory
transfer provision, ‘‘Senator George Jepsen stated that
the ability to appeal from a transfer order ‘has been the
focus of much of the problems associated with Juvenile
Court actions because by the time an appeal is taken,
the juvenile is no longer a juvenile.’ . . . Representa-
tive Edward C. Graziani stated that ‘when you take an
appeal [from a transfer order], you can extend the
period of time before a resolution is done. The child is
typically over [sixteen years old by the time the appeal
is decided], so the whole issue is moot. Therefore, the
state’s advocates do not proceed to try to even attempt
under our existing law to get a transfer because the
law is really defective. [Under t]his new law . . . there
is no appeal. You cannot appeal, so you cannot stop
the clock when the system goes forward, so the child
doesn’t become [sixteen] before justice is followed
through.’ ’’ [Citation omitted.]).15
The legislature again addressed the issue of the final-
ity of discretionary transfer orders in 1995, one year
after removing the final judgment language from the
mandatory transfer statute, when it reorganized the
juvenile justice statutes. As part of the reorganization,
the legislature moved the discretionary transfer provi-
sion from § 46b-126 (a) to § 46b-127 (b).16 When the
discretionary transfer provision was moved to § 46b-
127 (b), the final judgment language was omitted from
the new statutory provision.17 From 1995, when the
discretionary transfer provision was integrated into
§ 46b-127, until 2009, no amendments added final judg-
ment language to the discretionary or mandatory trans-
fer provisions.18 Although the 2010 amendment added
the youthful offender transfer provision, and its lan-
guage prohibiting interlocutory appeals of those trans-
fers,19 none of the changes to § 46b-127 since the
addition of the youthful offender transfer provision has
affected our interpretation of the deletion of the final
judgment language from the mandatory transfer pro-
vision.20
In light of the genealogy of the transfer provisions,
therefore, it is clear that the intent of the legislature
is to prohibit an immediate appeal of a discretionary
transfer order. After this court’s decision in In re Juve-
nile Appeal (AB–85), the legislature inserted and subse-
quently deleted express language dictating that
mandatory and discretionary transfer orders of cases
from the docket for juvenile matters to the regular crimi-
nal docket are final judgments for purposes of appeal.
After this court decided In re Daniel H. in 1996, and
the discretionary transfer provision was incorporated
into § 46b-127, the legislature amended § 46b-127 more
than ten times.21 Significantly, none of those amend-
ments sought to legislatively overrule this court’s con-
clusion regarding the effect of the deletion of the final
judgment language from the mandatory transfer provi-
sion. ‘‘Although we are aware that legislative inaction
is not necessarily legislative affirmation . . . we also
presume that the legislature is aware of [this court’s]
interpretation of a statute, and that its subsequent non-
action may be understood as a validation of that inter-
pretation.’’ (Internal quotation marks omitted.)
Caciopoli v. Lebowitz, 309 Conn. 62, 78, 68 A.3d 1150
(2013). By choosing not to legislatively overrule In re
Daniel H., the legislature has acquiesced to this court’s
interpretation that the deletion of the final judgment
language from the mandatory transfer provision was
the elimination of the right to an immediate appeal.
We see no reason why this court’s conclusion in In
re Daniel H. regarding the mandatory transfer provision
should not apply equally to the deletion of the final
judgment language from the discretionary transfer pro-
vision. When the discretionary and mandatory transfer
provisions were located in separate statutes, the legisla-
ture frequently amended both statutes at the same time.
Moreover, from 1986, when the legislature added the
final judgment language, until 1995, when the manda-
tory and discretionary transfer provisions were inte-
grated into one statute, four of the six amendments
made identical changes to the statutes. These legislative
actions support our conclusion that the legislature
intended these similar provisions to be treated similarly.
Thus, in accordance with the holding in In re Daniel
H., supra, 237 Conn. 367, we conclude that when the
legislature eliminated the final judgment language from
the discretionary transfer provision in P.A. 95-225, it
‘‘eliminated the right to an immediate appeal from a
court order transferring a juvenile matter to the regular
criminal docket . . . .’’ Id.
Our conclusion that the legislature intended to pro-
hibit interlocutory appeals of discretionary transfer pro-
visions, furthermore, is grounded in our presumption
that the legislature intended to create a harmonious
and coherent body of law. It is a well settled principle
that ‘‘the legislature is always presumed to have created
a harmonious and consistent body of law . . . . [T]his
tenet of statutory construction . . . requires [this
court] to read statutes together when they relate to the
same subject matter . . . . Accordingly, [i]n determin-
ing the meaning of a statute . . . we look not only at
the provision at issue, but also to the broader statutory
scheme to ensure the coherency of our construction.’’
(Internal quotation marks omitted.) Renaissance Man-
agement Co. v. Connecticut Housing Finance Author-
ity, 281 Conn. 227, 238–39, 915 A.2d 290 (2007). Our
conclusion regarding the right to interlocutory appeals
of discretionary transfer orders is consistent not only
with our interpretation of the mandatory transfer provi-
sion but also with the language regarding final judg-
ments from the youthful offender transfer provision,
thus, rendering the statutory scheme both logical and
coherent. When the legislature added the youthful
offender transfer provision to § 46b-127 in 2010,22 it did
so fourteen years after this court had interpreted the
effect of the deletion of the final judgment language
from the mandatory transfer provision. See In re Daniel
H., supra, 237 Conn. 364. Because the youthful offender
transfer provision codified a new type of transfer proce-
dure, and in order to assure consistency with our inter-
pretation regarding the availability of interlocutory
appeals of mandatory transfer orders, it is reasonable
that the legislature would include express language pro-
hibiting the interlocutory appeal of transfer orders to
the docket for juvenile matters. See Thomas v. Dept.
of Developmental Services, 297 Conn. 391, 404, 999 A.2d
682 (2010) (‘‘the legislature, in amending or enacting
statutes, always [is] presumed to have created a harmo-
nious and consistent body of law’’ [internal quotation
marks omitted]). By clearly expressing its intent to pro-
hibit interlocutory appeals of youthful offender trans-
fers, the legislature ensured a consistent interpretation
of all of the transfer provisions in § 46b-127.
When viewed in relation to the genealogy of the trans-
fer provisions, the legislature’s intent is clear: a transfer
order made pursuant to the discretionary transfer provi-
sion in § 46b-127 (b) (1) is not a final judgment for
purposes of appeal. The failure to legislatively overrule
this court’s decision in In re Daniel H., analyzed in
conjunction with the unequivocal language prohibiting
interlocutory appeals of youthful offender transfer
orders, only confirms our determination that when the
legislature removed the final judgment language from
the discretionary transfer provision, it intended to pro-
hibit interlocutory appeals of discretionary transfer
orders. To come to an opposite conclusion would lead
to an incoherent construction of the statutory scheme.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA and McDONALD, Js., concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** This case originally was scheduled to be argued before a panel of
this court consisting of Chief Justice Rogers and Justices Palmer, Zarella,
Eveleigh, McDonald, Espinosa and Robinson. Although Justice Palmer was
not present when the case was argued before the court, he has read the
record and briefs and listened to a recording of the oral argument prior to
participating in this decision.
1
General Statutes (Supp. 2014) § 46b-127 (b) (1) provides: ‘‘Upon motion
of a prosecutorial official, the superior court for juvenile matters shall
conduct a hearing to determine whether the case of any child charged with
the commission of a class C, D or E felony or an unclassified felony shall
be transferred from the docket for juvenile matters to the regular criminal
docket of the Superior Court. The court shall not order that the case be
transferred under this subdivision unless the court finds that (A) such offense
was committed after such child attained the age of fourteen years, (B) there
is probable cause to believe the child has committed the act for which the
child is charged, and (C) the best interests of the child and the public will
not be served by maintaining the case in the superior court for juvenile
matters. In making such findings, the court shall consider (i) any prior
criminal or juvenile offenses committed by the child, (ii) the seriousness
of such offenses, (iii) any evidence that the child has intellectual disability
or mental illness, and (iv) the availability of services in the docket for
juvenile matters that can serve the child’s needs. Any motion under this
subdivision shall be made, and any hearing under this subdivision shall be
held, not later than thirty days after the child is arraigned in the superior
court for juvenile matters.’’
Although § 46b-127 was amended after the respondent was transferred;
see Public Acts 2013, No. 13-258, § 5; the amendment has no bearing on the
merits of this appeal. In the interest of simplicity, we refer to the current
revision of the statute codified in the 2014 supplement.
2
The Appellate Court ordered: ‘‘In the following matter, counsel are
ordered to appear and give reasons, if any, why the respondent’s appeal
from the order granting the state’s motion to transfer the respondent’s
case from the juvenile docket to the regular criminal docket should not be
dismissed for lack of a final judgment. See In re Michael S., 258 Conn. 621
[784 A.2d 317] (2001); In re Juvenile Appeal (85–AB), 195 Conn. 303 [488
A.2d 778] (1985).’’
3
The order read: ‘‘After a hearing as to why the respondent’s appeal from
the order granting the state’s motion to transfer the respondent’s case from
the juvenile docket to the regular criminal docket should not be dismissed
for lack of a final judgment; see In re Michael S., 258 Conn. 621 [784 A.2d
317] (2001); In re Juvenile Appeal (85–AB), 195 Conn. 303 [488 A.2d 778]
(1985); it is hereby ordered that the appeal is dismissed.’’
4
In the alternative, the respondent argues that if the legislature’s intent
is unclear, this court’s decision in In re Juvenile Appeal (85–AB), 195 Conn.
303, 307, 488 A.2d 778 (1985), which concluded that pursuant to State v.
Curcio, 191 Conn. 27, 463 A.2d 566 (1983) a discretionary transfer order
was not a final judgment for purposes of appeal, should be overruled given
the development of our understanding of adolescent cognitive development.
Because we conclude that the legislature has manifested a clear intent to
prohibit interlocutory appeals of discretionary transfer orders, we need not
address whether such orders are final judgments pursuant to Curcio.
5
General Statutes (Supp. 2014) § 46b-127 (a) provides: ‘‘(1) The court
shall automatically transfer from the docket for juvenile matters to the
regular criminal docket of the Superior Court the case of any child charged
with the commission of a capital felony under the provisions of section 53a-
54b in effect prior to April 25, 2012, a class A or B felony or a violation of
section 53a-54d, provided such offense was committed after such child
attained the age of fourteen years and counsel has been appointed for such
child if such child is indigent. Such counsel may appear with the child but
shall not be permitted to make any argument or file any motion in opposition
to the transfer. The child shall be arraigned in the regular criminal docket
of the Superior Court at the next court date following such transfer, provided
any proceedings held prior to the finalization of such transfer shall be private
and shall be conducted in such parts of the courthouse or the building in
which the court is located that are separate and apart from the other parts
of the court which are then being used for proceedings pertaining to adults
charged with crimes.
‘‘(2) A state’s attorney may, at any time after such arraignment, file a
motion to transfer the case of any child charged with the commission of a
class B felony or a violation of subdivision (2) of subsection (a) of section
53a-70 to the docket for juvenile matters for proceedings in accordance
with the provisions of this chapter.’’
6
General Statutes (Supp. 2014) § 46b-127 (f) provides: ‘‘Upon the motion
of any party or upon the court’s own motion, the case of any youth age
sixteen or seventeen, except a case that has been transferred to the regular
criminal docket of the Superior Court pursuant to subsection (a) or (b) of
this section, which is pending on the youthful offender docket, regular
criminal docket of the Superior Court or any docket for the presentment
of defendants in motor vehicle matters, where the youth is charged with
committing any offense or violation for which a term of imprisonment may
be imposed, other than a violation of section 14-227a or 14-227g, may, before
trial or before the entry of a guilty plea, be transferred to the docket for
juvenile matters if (1) the youth is alleged to have committed such offense
or violation on or after January 1, 2010, while sixteen years of age, or is
alleged to have committed such offense or violation on or after July 1, 2012,
while seventeen years of age, and (2) after a hearing considering the facts
and circumstances of the case and the prior history of the youth, the court
determines that the programs and services available pursuant to a proceed-
ing in the superior court for juvenile matters would more appropriately
address the needs of the youth and that the youth and the community would
be better served by treating the youth as a delinquent. Upon ordering such
transfer, the court shall vacate any pleas entered in the matter and advise
the youth of the youth’s rights, and the youth shall (A) enter pleas on the
docket for juvenile matters in the jurisdiction where the youth resides, and
(B) be subject to prosecution as a delinquent child. The decision of the
court concerning the transfer of a youth’s case from the youthful offender
docket, regular criminal docket of the Superior Court or any docket for the
presentment of defendants in motor vehicle matters shall not be a final
judgment for purposes of appeal.’’
7
Public Acts 1979, No. 79-581, § 3.
8
General Statutes (Rev. to 1981) § 46b-127 provides: ‘‘The court shall
transfer to the regular criminal docket of the superior court from the docket
for juvenile matters: (1) Any child referred for the commission of a murder,
provided any such murder was committed after such child attained the age
of fourteen years; (2) any child referred for the violation of any provision
of title 53a which is designated as a class A felony, if such violation was
committed after such child attained the age of fourteen, provided such child
has previously been adjudicated a delinquent for a violation of any provision
of title 53a, which at the time of such violation was designated a class A
felony; or (3) any child referred for the violation of any provision of title
53a which is designated as a class B felony, provided such violation was
committed after such child attained the age of fourteen years, and further
provided such child has previously been adjudicated delinquent for two
violations of any provision of title 53a, which at the time of such violations
were designated a class A or B felony. No such transfer shall be valid unless,
prior thereto, the court has caused an investigation to be made as provided
in section 46b-134 and has found, after a hearing, that there is probable
cause to believe that the child has committed the act for which he is charged.
Upon the effectuation of the transfer, such child shall stand trial and be
sentenced, if convicted, as if he were sixteen years of age. If the action is
dismissed or nolled or if such child is found innocent of the charge for
which he was transferred, the child shall resume his status as a juvenile
until he attains the age of sixteen.’’
9
Public Acts 1979, No. 79-581, § 2.
10
General Statutes (Rev. to 1981) § 46b-126 (a) provides: ‘‘The court shall
hold a transfer hearing to determine whether it is appropriate to transfer
and may transfer from the docket for juvenile matters to the regular criminal
docket of the superior court any child referred for the commission of a
class A felony, or for any serious juvenile offense if such child has previously
been adjudicated a delinquent for a serious juvenile offense, provided such
child has attained the age of fourteen at the time the alleged delinquent
act was committed. If the child is or has been under the custody of the
commissioner of children and youth services, the commissioner shall provide
any relevant information concerning the amenability of the child to treatment
for use at the transfer hearing. No such transfer shall be valid unless, prior
thereto, the court has caused an investigation to be made as provided in
section 46b-134 and has made written findings after a hearing, that there is
probable cause to believe that (1) the child has committed the act for which
he is charged; (2) the child is not amenable to treatment in any institution
or state agency or other available facility designed for the care and treatment
of children to which said court may effect placement of such child which
is suitable for his care or treatment and (3) the sophistication, maturity and
previous adjudications of the juvenile are such that the facilities used for
regular criminal sessions of the superior court provide a more effective
setting for the disposition of the case and the institutions to which said
court may sentence a defendant sixteen years of age or over are more
suitable for the care and treatment of such child. Upon the effectuation of
the transfer, such child shall stand trial and be sentenced, if convicted, as
if he were sixteen years of age. If the action is dismissed or nolled or if
such child is found innocent of the charge for which he was transferred,
the child shall resume his status as a juvenile until he attains the age
of sixteen.’’
11
See Public Acts 1979, No. 79-581, §§ 2 and 3; Public Acts 1983, No. 83-
402, § 1; Public Acts 1984, No. 84-252.
12
Public Acts 1986, No. 86-185, §§ 1 and 2.
13
The legislature amended only the discretionary transfer statute, § 46b-
126, in 1989, making the transfer hearing discretionary rather than manda-
tory. Public Acts 1989, No. 89-273, § 2. Identical changes were made to
§§ 46b-126 and 46b-127 when they were amended in 1990. Public Acts 1990,
No. 90-136, §§ 1 and 2; Public Acts 1990, No. 90-187, §§ 1 through 3.
14
Public Acts, Spec. Sess., July, 1994, No. 94-2, § 6 (1994 amendment).
15
Moreover, although the current version of the mandatory transfer provi-
sion in § 46b-127 does not create any mechanism or opportunity for challeng-
ing a transfer pursuant to that provision, when this court decided In re
Daniel H. in 1996, a mandatory transfer was valid only after a probable
cause hearing had been held, with the trial court making a written finding
of probable cause, and the respondent could request a hearing following
the probable cause determination challenging the transfer for a number of
reasons. See General Statutes (Rev. to 1995) § 46b-127; see also In re Daniel
H., supra, 237 Conn. 366 n.1. Thus, a respondent could challenge rulings
and orders made by the trial court under that version of the mandatory
transfer provision.
16
The language that remained in § 46b-126 was as follows: ‘‘There shall
be established or designated by the Department of Children and Families
a secure facility or facilities within the state devoted to the care and treatment
of children, which children are under the jurisdiction of the Superior Court.
A consideration for admission to such a facility shall be adjudication for a
serious juvenile offense.’’ General Statutes (Rev. to 1997) § 46b-126.
17
Public Acts 1995, No. 95-225, §§ 13 and 39.
18
From 1997 until 2009, § 46b-127 was amended seven times, once each
in 1998, 2007, and 2009, and twice in 1997 and in 2004. Public Acts 1997,
No. 97-4, § 1, and Public Acts 1997, No. 97-319, § 21; Public Acts 1998, No.
98-256, § 3; Public Acts 2004, No. 04-127, § 2, and Public Acts 2004, No. 04-
148, § 1; Public Acts, Spec. Sess., June, 2007, No. 07-4, § 75; Public Acts,
Spec. Sess., September, 2009, No. 09-7, §§ 71, 84 and 122.
19
Public Acts, Spec. Sess., June, 2010, No. 10-1, § 30.
20
Public Acts 2011, No. 11-157, § 18; Public Acts 2012, No. 12-5, § 10;
Public Acts, Spec. Sess., June, 2012, No. 12-1, § 280.
21
See footnotes 18, 19 and 20 of this opinion.
22
Public Acts, Spec. Sess., June, 2010, No. 10-1, § 30.