JEFFREY S. ROBERIO
MASSACHUSETTS PAROLE BOARD.
Heard: January 8, 2019.
action commenced in the Superior Court Department on
August 24, 2016. The case was heard by Christine M.
Roach, J., on motions for judgment on the pleadings.
Supreme Judicial Court granted an application for direct
Benjamin H. Keehn, Committee for Public Counsel Services, for
Matthew P. Landry, Assistant Attorney General, for the
Elizabeth Zito, of New York, Janie Y. Miller, of California,
David J. Apfel, & Marielle Sanchez, for Massachusetts
Association of Criminal Defense Lawyers & others, amici
curiae, submitted a brief.
Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker,
case concerns whether retroactive application of a 1996
amendment to G. L. c. 127, § 133A (§ 133A), which
prescribes parole eligibility conditions for prisoners
serving life sentences, is an ex post facto violation, either
on its face or as applied to the plaintiff, Jeffery S.
1986, seventeen year old Roberio was convicted of armed
robbery and murder in the first degree premised on theories
of felony-murder, deliberate premeditation, and extreme
atrocity or cruelty, and he was sentenced to life in prison
without the possibility of parole. As a result of our
decision in Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655 (2013), S.C., 471 Mass. 12');">471 Mass. 12
(2015) (Diatchenko I), which applied Miller v.
Alabama, 567 U.S. 460, 479 (2012), and invalidated
mandatory life sentences for juvenile homicide offenders,
Roberio became immediately eligible for parole.
2015, the defendant Parole Board (board) denied Roberio's
application for parole and applied the 1996 amendment to
§ 133A that increased the maximum permissible period
between subsequent applications for parole from three years
to five years. See St. 1996, c. 43. Roberio challenged the
board's decision in the Superior Court, and a judge
concluded that the board did not abuse its discretion.
allowed Roberio's application for direct appellate review
and conclude that because the primary aim of the 1996
amendment was to afford relief to families of murder victims,
the Legislature intended the amendment to apply
retroactively. We also conclude that the amendment is not
unconstitutional on its face. However, further discovery
concerning the board's practical implementation of the
1996 amendment is necessary to determine whether application
of the amendment to Roberio is nonetheless unconstitutional.
Accordingly, we vacate the Superior Court judge's order
allowing the board's motion for judgment on the pleadings
and remand for further proceedings consistent with this
details of Roberio's crimes are set forth in
Commonwealth v. Roberio, 440 Mass. 245, 246-247
(2003) (affirming convictions), and need not be repeated
here. It suffices to say that as a juvenile, Roberio devised
and executed a vicious robbery, during which he and another
individual brutally beat and strangled an elderly man to
2015, the board unanimously denied Roberio's first parole
application on the ground that he was not "fully
rehabilitated." The board cited Roberio's lack of
corrective programming aimed at addressing his substance
abuse, anger, and violence issues, issues which Roberio
claimed had led to the very murder for which he was
incarcerated, leaving the board with serious concerns
regarding "whether he still presents a risk of harm to
the community, and whether his release is compatible with the
best interest of society." In conjunction with this
denial, the board ordered a review in five years and advised
that during those five years "Roberio should engage in
rehabilitative programming that addresses substance abuse,
anger, violence, and any potential mental health issues that
may impair his ability to function as a law abiding citizen
in society. "
time Roberio committed his crimes, § 133A provided that
when the board denied a prisoner who was serving a life
sentence parole, it was required to "carefully and
thoroughly" reconsider the merits of that prisoner's
case "at least once in each ensuing three year
period." See G. L. c. 127, § 133A, as amended
through St. 1982, c. 108, § 2. We refer to the period
between the board's denial of parole and a prisoner's
subsequent review as a "setback" or "set-back
brought his challenge to the board's decision in Superior
Court pursuant to G. L. c. 249, § 4, arguing that the
board abused its discretion in failing to consider adequately
his juvenile status in making its parole determination. He
also sought a declaration, pursuant to G. L. c. 231A, that
the board's application of the 1996 amendment to him
posed a significant risk of prolonging his incarceration and,
as a result, violated his constitutional right to be
protected from the operation of ex post facto laws, as
provided in art. I, § 10, of the United States
Constitution and art. 24 of the Massachusetts Declaration of
Rights. The judge denied Roberio's subsequent motions for
judgement on the pleadings and summary judgment, and allowed
the board's cross motion for judgment on the pleadings.
The judge found that the board did not abuse its discretion
in denying Roberio's parole, and she concluded that
Roberio's claim of increased punishment was speculative
and conj ectural.
Retroactive application of ...