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Commonwealth v. Perez

Supreme Judicial Court of Massachusetts, Hampden

September 14, 2018

COMMONWEALTH
v.
FERNANDO PEREZ.

          Heard: May 10, 2018.

          Following review by this court, 477 Mass. 677 (2017), a motion for resentencing was heard by Daniel A. Ford, J.

         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.

          Elizabeth A. Billowitz & Michelle Menken, for youth advocacy division of the Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          KAFKER, J.

         In Commonwealth v. Perez, 477 Mass. 677, 688 (2017) (Perez I), we determined that the juvenile defendant, Fernando Perez, received a sentence for his nonhomicide offenses that was presumptively disproportionate under art. 26 of the Massachusetts Declaration of Rights in that the time he would serve prior to parole eligibility exceeded that applicable to a juvenile convicted of murder. We therefore remanded the matter to the Superior Court for a hearing to determine whether, in light of the factors articulated by the United States Supreme Court in Miller v. Alabama, 567 U.S. 460, 477-478 (2012), the case presented extraordinary circumstances justifying a longer parole eligibility period. Perez I, supra. On remand, a judge in the Superior Court (hearing judge) held a Miller hearing and concluded that extraordinary circumstances were present. He therefore denied the defendant's motion for resentencing, leaving intact a longer period of incarceration for the defendant prior to his being eligible for parole than would be the case for a juvenile convicted of murder. The defendant was eligible for parole after twenty-seven and one-half years in prison, while a juvenile convicted of murder at that time would have been eligible for parole after fifteen years. See Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 673 (2013), S_.C., 471 Mass. 12 (2015). The defendant appealed, and we granted his application for direct appellate review. Here, we clarify the extraordinary circumstances requirement justifying longer periods of incarceration prior to eligibility for parole for juveniles who did not commit murder than for those who did. We conclude that the hearing judge erred in finding extraordinary circumstances in this case, particularly in regard to the juvenile's personal and family attributes. The crimes he committed meet the extraordinary circumstances requirement, but his personal and family circumstances do not.[1]

         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; the defendant continued to fire the weapon as he retreated from the scene. Detective D'Amato suffered serious injuries that required multiple surgeries." Id. at 680. The first bullet missed, but the second bullet went through his colon, nicked his aorta, passed through his vena cava, and nicked his right kidney. Indeed, after the Miller hearing, the hearing judge found that D'Amato is permanently disabled and has undergone further surgeries since the defendant's initial sentencing, and that "in the aftermath of this incident his life became a living hell and has been changed forever." For this crime spree, the defendant was convicted by a jury of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and firearms offenses. After an evaluation under G. L. c. 123, § 15 (e), and after considering further information about the defendant's upbringing, the trial judge sentenced him to an aggregate sentence of thirty-two and one-half years, with parole eligibility after twenty-seven and one-half years.[2]

         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] He found that the defendant had a "very difficult upbringing" characterized by domestic violence. The hearing judge found that the defendant's father physically and emotionally abused his mother, threatening to kill her in front of the defendant and his siblings. The defendant "would sometimes arm himself with baseball bats and screwdrivers in order to be prepared to protect his mother." His mother and the children moved frequently to escape the violence, and the mother eventually remarried and moved to Massachusetts. For a time, the defendant's "Uncle Eddie," his mother's brother, assisted in rearing the children. As the hearing judge found, "By all accounts, Uncle Eddie was a positive influence who became a father figure to the defendant and taught the defendant to be 'a good man.' The defendant loved Uncle Eddie very much and aspired to be like him." Unfortunately, Uncle Eddie was murdered in Puerto Rico, leaving the defendant "depressed, preoccupied, and even obsessed with his uncle's death." Shortly thereafter, Abrante was released from prison after serving a seventeen-year sentence on prior offenses and moved in with the family.

         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 accompany him to New York to perform a 'hit.' He tried to control the defendant's movements and allowed him to visit with his mother and girl friend for only short periods of time. The defendant claimed that he was in constant fear of [Abrante], and worried that he would be killed if he crossed his uncle."

         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 a leader.'" An evaluator observed: "He has some difficulty comprehending what is said to him, and has little skill at understanding complex situations and at predicting outcomes. When he is not sure what to say he acquiesces, when he is not sure what to do, he complies, and when he does not know a problem's solution, he is more likely to guess than inquire for help." His mental conditions, however, did not interfere with his ability to form the intent required for his offenses, and he knew right from wrong. The hearing judge also noted that, despite his fear of Abrante, the defendant was able to stand up to him on at least one occasion, refusing to accompany him to New York. The defendant was not under duress when he committed his crimes, as the jury found.

         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 determined that although the defendant's "horrible" family and home environment, and the influence of Abrante, might have favored an earlier parole eligibility, the circumstances of the crimes themselves, particularly the catastrophic injuries suffered by D'Amato, outweighed those considerations.[4] As to the defendant's personal characteristics, the hearing judge determined that although the defendant might have acted impetuously, he nonetheless had the maturity to appreciate the risks and consequences of his actions. The hearing judge therefore ruled that the Commonwealth had demonstrated the existence of extraordinary circumstances warranting the imposition of a sentence treating the defendant more harshly for parole purposes than a juvenile convicted of murder.

         D ...


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