Rule 4 - Notice and Scheduling of Wallace W. HearingA. Summons Arraignment. After receiving notice from the Commonwealth that it intends to prove multiple offenses at a Wallace W. hearing, the clerk-magistrate, after finding probable cause, shall issue the complaint. If the complaint issues, the clerk-magistrate shall issue a summons pursuant to G.L. c. 119, § 54. The summons shall set forth the date and time of the arraignment. In addition, the summons shall state that prior to the arraignment, the Commonwealth intends to prove prior offenses at a Wallace W. hearing. The summons shall list those offense(s). The summons shall also list the name and contact information for the child's court appointed counsel. Counsel shall be appointed by the court prior to the issuance of the summons. The summons shall be served on the child and parent by first class mail unless otherwise ordered by the court. A copy of the summons shall be mailed to the child's attorney and the prosecutor. Service of the summons shall be docketed on the case.1. Scheduling of the Wallace W. Hearing. The clerk-magistrate shall send the summons to the parties within 7 days of the issuance of the delinquency complaint. The Wallace W. hearing shall be scheduled for a date certain no more than 14 days from the service of the summons. Any party may file a motion with the court requesting that the Wallace W. hearing be rescheduled to a later date to allow for discovery and the summonsing and preparation of witnesses. The hearing, however, shall not be rescheduled for later than 28 days from the issuance of the complaint, although the judge may grant a continuance beyond this time for good cause shown.B. Arraignment Following Arrest. When a child is before the court for an arraignment as the result of an arrest, if one or more of the offenses for which the child has been arrested for is a minor misdemeanor, the court shall inquire whether the Commonwealth seeks to move forward with a Wallace W. hearing. If the Commonwealth decides not to move forward, the minor misdemeanors shall be dismissed for lack of jurisdiction as a first offense. The child may be arraigned on the other charges, if applicable. If the Commonwealth decides to move forward with a Wallace W. hearing, the arraignment shall be rescheduled for another date and the child and their attorney shall be provided with notice regarding the Wallace W. hearing, the date of the hearing and the offense(s) which the Commonwealth intends to prove as prior offenses. The notice shall be served on the child in-hand if physically present in court or by first class mail unless otherwise ordered by the court. The notice shall be on a form approved by the Chief Justice of the Juvenile Court. 1. Scheduling of the Wallace W. Hearing. The Wallace W. hearing shall be scheduled for a date certain no more than 14 days from the date of the original arraignment. Any party may file a motion with the court requesting that the Wallace W. hearing be rescheduled to a later date to allow for discovery and the summonsing and preparation of witnesses. The hearing, however, shall not be rescheduled for later than 28 days from the issuance of the complaint, although the judge may grant a continuance beyond this time for good cause shown.Adopted June 22, 2022, effective 10/1/2022.Note
In Nick N., the SJC held that the Commonwealth may move forward with the arraignment on the greater offenses without the need to hold a Wallace W. hearing on those offenses. If after arraignment the greater offenses are proven, the Commonwealth may arraign on the minor misdemeanor because it would no longer be considered a first offense. See Nick N. at 700, 701.
The SJC noted that though it wrote in Wallace W. that 'the juvenile may move to dismiss the complaint' this language does not confine to the juvenile the responsibility of attentiveness to proper jurisdiction. See Wallace W., 482 Mass. at 800-801. "Subject matter jurisdiction may be raised by either party or the court at any time and cannot be conferred by waiver." See Nick N. at 702.