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Diatchenko v. District Attorney for Suffolk District

Supreme Judicial Court of Massachusetts, Suffolk

March 23, 2015

Gregory Diatchenko & another[1]
v.
District Attorney for the Suffolk District & others.[2] Commonwealth
v.
Jeffrey S. Roberio

Argued November 6, 2014.

[As Modified on April 24, 2015]

[As Modified on May 1, 2015]

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013.

Page 13

The case was reported by Botsford, J.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 10, 2014.

Following review by this court, 466 Mass. 655 (2013), the case was reported by Botsford, J.

Benjamin H. Keehn, Committee for Public Counsel Services, for Gregory Diatchenko & another.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

Amy L. Karangekis, Assistant Attorney General, for Massachusetts Parole Board.

John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District.

The following submitted briefs for amici curiae:

Kenneth J. Parsigian for Citizens for Juvenile Justice & others.

David J. Apfel, Kristen A. Kearney, Kunal Pasricha, & Katherine Connolly Sadeck for Campaign for the Fair Sentencing of Youth & others.

Afton M. Templin for Massachusetts Association of Criminal Defense Lawyers.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

OPINION

[27 N.E.3d 353] Botsford, J.

In Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270 (2013) ( Diatchenko I ), this court considered the constitutionality of a life sentence without parole when applied to a juvenile homicide offender,[3] and, following Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), determined that the mandatory imposition of such a sentence violates the prohibition against cruel and unusual punishments in the Eighth Amendment to the United States Constitution as well as art. 26 of the Massachusetts Declaration of Rights.[4] Diatchenko I, supra at 668. The court held that a juvenile homicide offender who is convicted of murder in the first degree and receives a mandatory sentence of life in prison must be afforded a " meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation," and this opportunity must come through consideration for release on parole. Id. at 674, quoting Graham v. Florida, 560 U.S. 48, 75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

The court's opinion in Diatchenko I has given rise to questions concerning how the opportunity for release on parole will be protected for juvenile homicide offenders. Specifically, Gregory

Page 14

Diatchenko and Jeffrey S. Roberio,[5] each of whom was convicted of murder in the first degree many years ago for a crime committed when he was seventeen years old,[6] argue that in order to ensure that their opportunity for release through parole is meaningful, they must have, in connection with a petition for release before the parole board (board), access to counsel, access to funds for counsel and for expert witnesses because they are indigent, and an opportunity for judicial review of the decision on their parole applications. For the reasons discussed below, we agree in substance with Diatchenko and Roberio.[7]

[27 N.E.3d 354] 1. Procedural history.

a. Diatchenko.

In March of 2013, Diatchenko filed the present action in the county court, seeking a declaration that, because he was convicted of murder in the first degree and was seventeen at the time he committed the offense, his mandatory sentence of life without parole was unconstitutional following the United States Supreme Court's decision in Miller, 132 S.Ct. at 2469. The single justice reported the case to the full court.

The court issued its opinion in December, 2013. See Diatchenko I, 466 Mass. at 655. Having determined that juvenile homicide offenders could not validly be sentenced to life in prison without parole, the court turned to the task of finding an appropriate way to achieve a constitutionally permissible result, while still recognizing the Legislature's primary role in establishing sentences for criminal offenses. The approach we took was to declare invalid, as applied to juvenile homicide offenders, certain language in G. L. c. 265, § 2, creating an exception to parole eligibility for those convicted of murder in the first degree and leaving in full effect the remainder of the statute that imposed a mandatory sentence of life imprisonment. See Diatchenko I,

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supra at 673. The result was that any juvenile offender previously convicted of murder in the first degree, including Diatchenko, became eligible for parole after serving fifteen years of his or her sentence. See id. See also G. L. c. 265, § 2, as amended through St. 1982, c. 554, § 3; G. L. c. 127, § 133A, as amended through St. 1965, c. 766, § 1. Because Diatchenko had already served approximately thirty-one years of his life sentence, he became eligible for parole immediately. See Diatchenko I, supra.[8]

Pursuant to the opinion's rescript, the case was remanded to the single justice with the direction to enter a judgment consistent with the court's opinion in the case and to " take such further action as is necessary and appropriate." On February 27, 2014, Diatchenko filed a motion for entry of a judgment that would include a number of orders of specific relief, and also filed a motion for funds to retain an expert in connection with his hearing before the board. The district attorney for the Suffolk District (district attorney), the chair of the board, and the Commissioner of Correction (commissioner) filed oppositions. After a hearing, the single justice reserved and reported Diatchenko's case as well as Roberio's case, next discussed, to the full court.

In connection with the Diatchenko case, the single justice reported the following questions:

" 1. Whether, in order to ensure that the petitioner and other similarly situated juvenile homicide offenders receive the 'meaningful opportunity to obtain release' [27 N.E.3d 355] that is required by the court's opinion [in Diatchenko I ], they must be afforded:
" a. the right to assistance of counsel at their parole hearings, including the right to have counsel appointed if they are indigent; and
" b. the right to public funds, if they are indigent, in order to secure reasonably necessary expert assistance at the hearings.

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" 2. Whether, in order to ensure that the petitioner and other similarly situated juvenile homicide offenders receive the 'meaningful opportunity to obtain release' that is required by the court's opinion, there must be an opportunity for the petitioner or a similarly situated individual who is denied parole to obtain judicial review of the parole board's decision, and if so, what form the judicial review will take."

b. Roberio.

Following the Supreme Court's decision in Miller, in June, 2013, Roberio sought relief from his mandatory sentence of life without parole by moving in the Superior Court for resentencing under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001). He also filed a motion for funds pursuant to rule 30 (c) (5) to pay an expert neuropsychologist for assistance in connection with his motion for resentencing. The motion for funds was allowed, but Roberio's motion for resentencing was stayed pending the release of our decision in Diatchenko I, at which point he was resentenced to life with parole eligibility after fifteen years in prison. Because Roberio had been in prison for more than fifteen years, he was immediately eligible for parole.

On February 27, 2014, Roberio filed another motion for funds pursuant to rule 30 (c) (5) to retain the services of a second neuropsychologist because the previous neuropsychologist had died; Roberio sought to retain the expert in order to continue to seek to have his sentence reduced to a term of years or, alternatively, to assist him in connection with seeking parole. A second Superior Court judge allowed the motion after hearing, but stayed the order to permit the Commonwealth to seek relief from the single justice. On March 10, 2014, the Commonwealth filed a petition for relief under G. L. c. 211, § 3, challenging the orders allowing Roberio's requests for funds to retain the experts. As indicated, on May 23, 2014, the single justice reserved and reported the Roberio case to the full court for decision, to be paired with the Diatchenko case. In September, 2014, Roberio filed a motion to intervene in the Diatchenko case. The single justice allowed the motion.

2. Suggestion of mootness.

"Litigation ordinarily is considered moot when the party claiming to be aggrieved ceases to have a personal stake in its outcome." Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103, 725 N.E.2d 552 (2000), quoting Attorney Gen. v. Commissioner of Ins., 403 Mass. 370, 380, 530 N.E.2d 142 (1988). The chair of the board, the commissioner, and the district attorney suggest that

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the case is moot with respect to Diatchenko because on October 31, 2014, the board approved his application for parole, and therefore, they contend, Diatchenko no longer has a personal stake in the resolution of the present case. See Massachusetts Parole Board, No. W38579, at 1 (Oct. 31, 2014). However, Diatchenko has not yet been released on parole; rather, the board required that Diatchenko first spend twelve months in a lower security prison before he may be released, so that he may " transition gradually to the community." Id. at 7. Since Diatchenko has not yet been released, he continues to have a personal stake in the [27 N.E.3d 356] outcome of the case, and therefore his petition is not moot. Moreover, Roberio has been permitted to intervene in the Diatchenko case, and he has not yet had a parole hearing. Even if the case were moot as to Diatchenko, therefore, it is not moot with respect to Roberio. We proceed to consider the reported questions and related claims raised on their merits.

3. Discussion.

a. Right to assistance of counsel.

The first reported question asks whether a juvenile homicide offender must be afforded the assistance of counsel in connection with his or her initial parole hearing.[9] It is important to view the question in context. The court's conclusion in Diatchenko I, that juvenile homicide offenders could not permissibly be subjected to life in prison without any opportunity for parole, flowed from the " fundamental '" precept of justice that punishment for crime should be graduated and proportioned" to both the offender and the offense,'" a central tenet of the Eighth Amendment and of art. 26. Diatchenko I, 466 Mass. at 669, quoting Miller, 132 S.Ct. at 2463. Drawing from the United States Supreme Court's recent decisions that focused on the requirement of proportional sentencing of youth, and in particular the decisions in Miller and Graham,[10] Diatchenko I observed that " children are constitution-

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ally different from adults for purposes of sentencing" and that the " distinctive attributes of juvenile offenders" render suspect the traditional justifications for imposing sentences of life without parole on these individuals. Diatchenko I, supra at 670-671, quoting Miller, supra at 2465. Therefore, in Diatchenko I, we held that Diatchenko and all juvenile homicide offenders serving mandatory life sentences deserve at least a " meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation," and that accordingly, at the appropriate time, they must be considered for parole suitability. Diatchenko I, supra at 671, 674, quoting Graham, 560 U.S. at 75. In other words, the conclusion we reached was that parole eligibility is an essential component of a constitutional sentence under art. 26 for a juvenile homicide offender subject to mandatory life in prison.[11]

[27 N.E.3d 357] In general, there is no constitutionally protected liberty interest in a grant of parole. See Greenholtz v. Inmates of the Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Quegan v. Massachusetts Parole Bd., 423 Mass. 834, 836, 673 N.E.2d 42 (1996); Greenman v. Massachusetts Parole Bd., 405 Mass. 384, 388 n.3, 540 N.E.2d 1309 (1989). However, the Supreme Court has acknowledged that in some cases, a liberty interest in parole requiring at least some minimal due process rights may derive from language in a State's parole statute that creates a " protectible expectation of parole." See Greenholtz, supra at 11-12 (statutory language and structure of Nebraska parole statute created expectancy of release constituting liberty interest entitled to protection of due process clause). See also Board of Pardons v. Allen, 482 U.S. 369, 371-372, 381, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987).

Here, G. L. c. 127, § 130, does not create an expectation of release through parole, as Justice Spina's dissent points out. See post at 39-40. Rather, what is at issue is art. 26's requirement that a juvenile homicide offender serving a mandatory life sentence be

Page 19

provided a meaningful opportunity to obtain release, so that his or her sentence is not effectively one of straight life in prison -- an outcome that art. 26 prohibits. In this context, where the meaningful opportunity for release through parole is necessary in order to conform the juvenile homicide offender's mandatory life sentence to the requirements of art. 26, the parole process takes on a constitutional dimension that does not exist for other offenders whose sentences include parole eligibility.[12]

Thus, for example, in the case of an adult defendant convicted of armed robbery and sentenced to a term of not less than sixteen nor more than twenty years in prison, the defendant would be eligible for parole in sixteen years,[13] but if the defendant were denied a meaningful opportunity for release on parole, this would not render the sentence cruel or unusual and therefore unconstitutional under art. 26. This is so because a State has no obligation to provide a parole system, see Greenholtz, 442 U.S. at 7-8, and if the defendant were to serve his or her entire sentence of twenty years with no opportunity at all for release on parole, that would have been a permissible sentence for the judge to have imposed at the outset. The same is not true for juvenile homicide offenders; under G. L. c. 265, § 2, they must be sentenced to life in prison, but art. 26 does not allow either the Legislature or a judge to sentence such an offender to life in prison without the possibility of parole.[14]

[27 N.E.3d 358] We turn, then, to the question of what is procedurally required

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in order to protect a juvenile homicide offender's expectation of " a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Graham, 560 U.S. at 75.[15] " The extent of procedural due process which must be afforded in any situation varies with the nature of the private and governmental interests at stake ..., but basic to due process is the right to be heard 'at a meaningful time and in a ...


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