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Roberio v. Massachusetts Parole Board

Supreme Judicial Court of Massachusetts, Suffolk

October 24, 2019


          Heard: January 8, 2019.

         Civil 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.

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

          Benjamin H. Keehn, Committee for Public Counsel Services, for the plaintiff.

          Matthew P. Landry, Assistant Attorney General, for the defendant.

          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, JJ.

          CYPHER, J.

         This 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. Roberio.

         In 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.

         In 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.

         We 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 opinion.[1]

         Background and facts.

         The 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 death.

         In 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. "[2]

         At the 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 period."

         Roberio 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.


         1. Retroactive application of ...

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