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Commonwealth v. Perez

Supreme Judicial Court of Massachusetts, Hampden

August 25, 2017

COMMONWEALTH
v.
FERNANDO PEREZ.

          Heard: April 3, 2017.

         Indictments found and returned in the Superior Court Department on February 16 and March 2, 2001. Following review by the Appeals Court, 62 Mass.App.Ct. 912 (2004) and 67 Mass.App.Ct. 1116 (2006), a motion for resentencing, filed on March 7, 2016, was considered by Daniel A. Ford, J., and a motion for reconsideration was considered by him.

         The Supreme Judicial Court granted an application for direct appellate review.

          Elizabeth Caddick for the defendant.

          Elizabeth Dunphy Farris, Assistant District Attorney (Katherine E. McMahon, Assistant District Attorney, also present) for the Commonwealth.

          Merritt Schnipper, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1]

          HINES, J.

         In the early morning hours of December 23, 2000, the juvenile defendant, Fernando Perez, who was then seventeen years of age, embarked on a crime spree in downtown Springfield. Accompanied by his adult uncle and armed with a handgun, the defendant committed two robberies, all within a span of thirty minutes. While attempting a third robbery, he shot the intended victim, a plain-clothed Springfield police officer. In November, 2001, a Superior Court jury convicted the defendant of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and related firearms offenses. The judge sentenced the defendant to multiple concurrent and consecutive terms, resulting in an aggregate sentence of thirty-two and one-half years, [2] with parole eligibility after twenty-seven and one-half years.

         In 2015, after our decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015), the defendant filed a motion for resentencing under Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), arguing that the aggregate sentence imposed violated the prohibition on cruel and unusual punishment under the Eighth Amendment to the United States Constitution, and the cognate provision of art. 26 of the Massachusetts Declaration of Rights, by requiring him to serve twelve and one-half years longer before parole eligibility than a juvenile defendant convicted of murder. He argued also that the sentence violated his right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and that, as a consequence, he was entitled to be resentenced to a term of years allowing parole eligibility on the same terms as a juvenile convicted of murder. A Superior Court judge denied the motion, and the defendant appealed. We granted the defendant's application for direct appellate review.[3]

         On appeal, the defendant relies primarily on Roper v. Simmons, 543 U.S. 551, 578 (2005) (invalidating death penalty for juveniles), and its progeny[4] to support his claim that the aggregate sentence violates the proscription against cruel and unusual punishment under the Eighth Amendment and art. 26. We decline the invitation to decide the issue on Eighth Amendment grounds, especially where the United States Supreme Court has not interpreted the Eighth Amendment as broadly as urged by the defendant. Instead, we resolve the issue under art. 26, which we have interpreted more broadly than the Supreme Court has interpreted the Eighth Amendment.[5] We conclude that where a juvenile is sentenced for a nonmurder offense or offenses and the aggregate time to be served prior to parole eligibility exceeds that applicable to a juvenile convicted of murder, the sentence cannot be reconciled with art. 26 unless, after a hearing on the factors articulated in Miller v. Alabama, 567 U.S. 460, 477-478 (2012) (Miller hearing), the judge makes a finding that the circumstances warrant treating the juvenile more harshly for parole purposes than a juvenile convicted of murder. Accordingly, we remand the matter to the Superior Court for a Miller hearing to determine whether the sentence comports with the requirements of art. 26. If not, then the defendant must be resentenced.

         Background.

         1. Facts.

         We recite the facts the jury could have found. On December 23, 2000, around 1 A.M., 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. The defendant was armed with a handgun, and his uncle, Tito Abrante, shuttled him from crime to crime.[6] 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. Detective D'Amato said, "What's up?" to which the defendant replied, "I'm going to rob you . . . ." In response, Detective D'Amato said, "I don't think so. You should really think about this. I'm a Springfield police officer and you should think about what you're doing." As Detective D'Amato reached for his badge, the defendant shot him; the defendant continued to fire the weapon as he retreated from the scene. Detective D'Amato suffered serious injuries that required multiple surgeries. On January 30, 2001, the police arrested the defendant in Scranton, Pennsylvania. In statements to Scranton and Springfield police, the defendant admitted to shooting Detective D'Amato but claimed Abrante committed the other robberies.

         2. Sentencing.

         Prior to sentencing, the trial judge ordered a G. L. c. 123, § 15 (e), evaluation in aid of sentencing, which was performed by Dr. Michael Sherry, a designated forensic psychologist. In addition, a Superior Court probation officer in Hampden County, Laura Periera, prepared a presentence investigation report at the court's direction. The judge previously had received and reviewed two reports from Dr. Pamela Dieter-Sands, a licensed psychologist and the defendant's expert witness.[7] In her report, Dieter-Sands detailed the defendant's upbringing, how he lived under the extreme stress of his father's violence, and the vacuum that was left when an uncle who had nurtured and supported the defendant was murdered in the spring of 2000. The defendant filled the void left by this "loving father figure" with Abrante, whom he first met about one month after his uncle's death. Periera reported that "this defendant believed that if he did not follow through with [Abrante's] orders, he would be subjected to bodily harm."

         The Commonwealth sought concurrent life sentences on two of the defendant's armed robbery convictions, and term-of-years sentences totaling twenty to thirty years on the remaining felony convictions. The defendant requested a sentence of ten years in State prison and urged the judge to consider the defendant's evaluations and his "horrible upbringing." Before pronouncing sentence, the trial judge stated, "I recognize . . . that at the time of these offenses [the defendant] was only [seventeen] years old. And young men of the age of [seventeen] frequently do not have the maturity to make good judgments. But the law makes them responsible for their acts as adults, nonetheless."[8] The judge sentenced the defendant to an aggregate term of thirty-two and one-half years imprisonment, resulting in parole eligibility after twenty-seven and one-half years.

         3. Posttrial proceedings.

         The defendant appealed from his sentences to the appellate division of the Superior Court, which dismissed the appeal. On February 15, 2002, the defendant filed identical motions to revise and revoke his sentences on the grounds of "basic fairness and justice, and the [d]efendant's personal circumstances and background, " pursuant to Mass. R. Crim. P. 29, 378 Mass. 899 (1979). On January 3, 2006, the trial judge denied the motions.

         On October 25, 2004, the Appeals Court affirmed the convictions. Commonwealthv.Perez, 62 Mass.App.Ct. 912, 914 (2004). On December 27, 2005, the defendant filed a motion for a new trial, pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), on the ground of newly discovered evidence. The trial judge denied the motion without a hearing, and the Appeals ...


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