Heard: April 3, 2017.
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.
Supreme Judicial Court granted an application for direct
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, &
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,
with parole eligibility after twenty-seven and one-half
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
appeal, the defendant relies primarily on Roper
v. Simmons, 543 U.S. 551, 578 (2005)
(invalidating death penalty for juveniles), and its
progeny 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. 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.
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. 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
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. 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
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." 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
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.
October 25, 2004, the Appeals Court affirmed the convictions.
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 ...