Heard: May 10, 2018.
Following review by this court, 477 Mass. 677 (2017), a
motion for resentencing was heard by Daniel A. Ford, J.
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.
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.
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.
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.
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. 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.
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."
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."
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.
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. 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.