Commonwealth v. PerezCommonwealth v. Perez
KAFKER, J. In Commonwealth v. Perez, 477 Mass. 677, 688 (2017) (Perez I), we determined that the juvenile defendant,
Facts. As we described in Perez I, 477 Mass. at 679-680, in the early hours of December 23, 2000, the defendant, “then aged seventeen, committed two robberies and attempted a third. The three crimes occurred within thirty minutes of each other and within a several-block radius of downtown Springfield.” That night his uncle, Tito Abrante, gave the defendant a gun and encouraged him to get out of the vehicle and commit these crimes. The uncle “shuttled [the defendant] from crime to crime. The defendant first robbed a married couple at a train station and then robbed a man walking on Main Street. In the third incident, he approached Carlo D‘Amato, an off-duty detective with the Springfield police department” and threatened to rob him (footnote omitted). Id. D‘Amato identified himself as a police officer and told the defendant to desist. “As Detective D‘Amato reached for his badge, the defendant shot him;
Miller hearing. At the Miller hearing on remand, the hearing judge, who had presided over Abrante‘s trial arising from the same incidents, made further findings.3
The hearing judge found that Abrante “was a monster in the most damning sense of that word.” “He told the defendant stories about violent acts that he had committed and said that he wanted to train the defendant to be his ‘back-up’ so that they could avenge the death of Uncle Eddie. He bragged about killing a number of people, including a fifteen year old girl and other women and children. He plied the defendant with drugs and alcohol, and encouraged him to have sexual relations with ‘older women.’ He beat a woman and attacked her with a knife in the defendant‘s presence. He put the defendant ‘on alert’ to
The defendant did briefly move to Maine to enter the Job Corps, but returned to Massachusetts after a few months. The hearing judge was unable to determine whether the defendant returned because, as the Commonwealth argued, he liked the criminal lifestyle to which Abrante had exposed him or because, as the defendant argued, he was lonely and missed his girl friend and his mother. The hearing judge found only that the defendant returned “despite his fear of his uncle and with the knowledge that his uncle was attempting to recruit him into a life of crime.”
The hearing judge also made findings about the defendant‘s personal characteristics. He found that the defendant‘s intelligence quotient was “at the low end of the normal range,” that he had been in special education, and that he “struggled to keep up with his school work.” He was diagnosed with posttraumatic stress disorder, depression, and attention deficit disorder. As the hearing judge found, “[o]ne of [his mental health counsellors] described [him] as trying ‘to please others all the time,’ and noted that he was not ‘very strong’ and ‘not
Based on his findings, the hearing judge considered the Miller factors. As we articulated in Perez I, those factors are: “(1) the particular attributes of the juvenile, including ‘immaturity, impetuosity, and failure to appreciate risks and consequences‘; (2) ‘the family and home environment that surrounds [the juvenile] from which he cannot usually extricate himself‘; and (3) ‘the circumstances of the . . . offense, including the extent of [the juvenile‘s] participation in the conduct and the way familial and peer pressures may have affected him.‘” Perez I, 477 Mass. at 686, quoting Miller, 567 U.S. at 477. Weighing those factors, the hearing judge
Discussion. 1. Standard of review. We review the denial of a motion brought under
In the instant case, however, the hearing judge was not the trial judge, and his fact finding was based on a review of the trial record. We are therefore in the same position as the hearing judge in this regard. That being said, with the exception of his finding concerning the defendant‘s laughter regarding the injuries inflicted on the officer, see note 4, supra, we accept and adopt his subsidiary findings. We do, however, reach a different conclusion regarding the application of art. 26 to those facts.
2. Sentencing after Diatchenko. After our decision in Diatchenko, “a sentencing statute prescribing life without the possibility of parole [for murder in the first degree] in effect became a statute prescribing, for juvenile offenders, life with the possibility of parole after fifteen years.” Commonwealth v. Costa, 472 Mass. 139, 140 (2015). We further held that “a life sentence without the possibility of parole [for murder in the first degree] violates art. 26, regardless of whether such sentence is mandatory or imposed in the sentencing judge‘s discretion.” Perez I, 477 Mass. at 683, citing Diatchenko, 466 Mass. at 671. Under the statutes then in effect, a sentencing judge had no discretion to impose a period
In Perez I, 477 Mass. at 686, we ruled:
“[A] juvenile defendant‘s aggregate sentence for nonmurder offenses with parole eligibility exceeding that applicable to a juvenile defendant convicted of murder is presumptively disproportionate. That presumption is conclusive, absent a hearing to consider whether extraordinary circumstances warrant a sentence treating the juvenile defendant more harshly for parole purposes than a juvenile convicted of murder.”
At such a hearing, the judge must weigh the factors articulated in Miller, 567 U.S. at 477-478, “appl[y] them uniquely to the individual defendant, and consider[] whether a [parole eligibility date] exceeding that applicable to a juvenile convicted of murder (at least with respect to parole eligibility) is appropriate in the circumstances.” Perez I, 477 Mass. at 686, citing Diatchenko, 466 Mass. at 668. We clarify today that, for juveniles, the criminal conduct alone is not sufficient to justify a greater parole eligibility period than is available for murder. The juvenile‘s personal and family
The Miller principles we apply arise from the Supreme Court‘s recognition “that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, . . . ‘they are less deserving of the most severe punishments.‘” Miller, 567 U.S. at 471, quoting Graham v. Florida, 560 U.S. 48, 68 (2010). As the Court further explained, “children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking“; they “are more vulnerable . . . to negative influences and outside pressures” and less able “to extricate themselves from horrific, crime-producing settings“; and their character traits “are ‘less fixed’ and [their] actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].‘” Miller, supra, quoting Roper v. Simmons, 543 U.S. 551, 569-570 (2005). This recognition is based in part on advances in scientific research concerning the development of the juvenile brain, Miller, supra at 471-472, research that we have relied on as well. Diatchenko, 466 Mass.
In Miller, 567 U.S. at 465, 478, the Supreme Court expressly recognized the viciousness of the murder, but nonetheless concluded that the individual characteristics of the juvenile murderer must be considered before imposing a life sentence without parole. See Roper, 543 U.S. at 573 (“An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender‘s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death“). We likewise consider both the crime and the individual, although we provide a more protective analysis under art. 26 regarding the individual characteristics. See Perez I, 477 Mass. at 683 (“The point of
In regard to the individualized inquiry, we have further explained:
“Given current scientific research on adolescent brain development, and the myriad significant ways that this development impacts a juvenile‘s personality and behavior, a conclusive showing of traits such as an ‘irretrievably depraved character,’ Roper, 543 U.S. at 570, can never be made, with integrity, by the Commonwealth at an individualized hearing to determine whether a sentence of life without parole should be imposed on a juvenile homicide offender. See Miller, [567 U.S. at 471]. Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved.”
Diatchenko, 466 Mass. at 669-670.
We therefore do not require the Commonwealth to prove that the defendant exhibited “irretrievable depravity” or
We recognize the difficulty and complexity of this task, and the need to develop better scientific tools to identify the factors, such as psychopathy, that support a finding that a juvenile is not reasonably likely to be rehabilitated. See T. Grisso & A. Kavanaugh, Prospects for Developmental Evidence in Juvenile Sentencing Based on Miller v. Alabama, 22 Psychol. Pub. Pol‘y & L. 235, 240 (2016). See also Roper, 543 U.S. at 573, citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 701-706 (4th ed. rev. 2000) (“As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under [eighteen] as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy . . .“). It is for this reason, however, that we consider parole eligibility periods longer than those provided for juvenile murderers to require extraordinary circumstances.
Applying these principles to the defendant‘s case, it is clear that the crimes themselves met the extraordinary circumstances requirement of Perez I. The defendant committed
However, we are not persuaded that the defendant‘s personal characteristics meet the extraordinary circumstances requirement set out in Perez I. As far as we are able to tell, until he embarked on his crime spree, the defendant never engaged in any criminal activity apart from a charge of larceny that was dismissed after he completed a pretrial diversion program. As a child, the defendant lived in a horrific, violent environment from which he could not extricate himself. He enjoyed a brief respite from his father‘s abuse of his mother when he was in the care of Uncle Eddie, but with Uncle Eddie‘s death, he lost that positive adult role model and became susceptible to Abrante‘s pernicious influence. By that time, the defendant was a
We see no basis to conclude, on this record, that the defendant has the extraordinary individual characteristics that necessitate a longer parole eligibility period than that available for a juvenile murderer. Rather, as the Supreme Court emphasized in Miller, 567 U.S. at 478-479, the juvenile had mental health problems but no criminal history, and “if ever a pathological background might have contributed to [the] commission of a crime, it is here.” Based on the evidence adduced at trial and considered at the Miller hearing, we conclude that this case does not present extraordinary circumstances justifying incarcerating the defendant, prior to parole eligibility, longer than a juvenile convicted of murder.
Furthermore, we see no reason to remand this matter for a second Miller hearing at this point. The record before us is sufficient. The crime spree was vicious and comparable to
Nothing we say today requires that the defendant receive a shorter aggregate sentence for his crimes. Those crimes, as detailed above, were serious and warrant serious punishment. Our Constitution requires, however, that a juvenile who commits only nonhomicide offenses be presumptively eligible for parole no later than a juvenile convicted of murder, unless the Commonwealth proves that both the crimes themselves and the characteristics of the juvenile present extraordinary circumstances justifying harsher treatment. This the Commonwealth has not done. Moreover, as in Diatchenko, our decision does not mandate that the defendant be paroled once he has served the portion of his sentence prior to his being
Conclusion. The order denying the defendant‘s motion for resentencing is vacated, and the matter is remanded to the Superior Court for resentencing in accordance with this opinion.
So ordered.
Notes
To be clear, the denial of such a motion is also reviewed for error of law. See, e.g., Wright, supra. In the instant case, we conclude that there was an error of law.“We review the denial of a motion brought under
Mass. R. Crim. P. 30 (a) [, as appearing in 435 Mass. 1501 (2001)], for an abuse of discretion. Commonwealth v. Wright, 469 Mass. 447, 461 (2014). Under that standard, the issue is whether the judge‘s decision resulted from ‘“a clear error of judgment in weighing” the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives’ (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).”
Commonwealth v. Costa, 472 Mass. 139, 145 (2015). The defendant was sentenced in 2002, well before the enactment of this new sentencing statute and while the old sentencing statute was still in force. As previously explained, “[b]ecause our“The resulting legislation establishes that, ‘for murder in the first degree committed by a person on or after the person‘s fourteenth birthday and before the person‘s eighteenth birthday, the court shall fix a minimum term’ before the individual becomes eligible for parole ‘of not less than [twenty] years nor more than [thirty] years.’
Id. Where the conviction of murder in the first degree is based on extreme atrocity or cruelty, ‘the court shall fix a minimum term of [thirty] years.’Id. Finally, where the conviction of murder in the first degree for a juvenile offender is based on ‘deliberately premeditated malice aforethought . . . , the court shall fix a minimum term of not less than [twenty-five] years nor more than [thirty] years.’Id. ”