Jeffrey S. ROBERIO
MASSACHUSETTS PAROLE BOARD.
January 8, 2019
Parole . Imprisonment, Parole.
Constitutional Law, Parole, Ex post facto law.
Due Process of Law, Parole, Retroactive application
of statute. Statute, Retroactive application.
Practice, Criminal, Parole.
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.
H. Keehn, Committee for Public Counsel Services, for the
Matthew P. Landry, Assistant Attorney General, for the
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
Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.
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.
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, 1 N.E.3d 270 (2013),
S . C ., 471 Mass. 12');">471 Mass. 12, 27 N.E.3d 349 (2015)
(Diatchenko I ), which applied Miller v.
Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012), and invalidated mandatory life sentences for
juvenile homicide offenders, Roberio became immediately
eligible for parole.
2015, the defendant Parole Board (board) denied Roberios
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 boards
decision in the Superior Court, and a judge concluded that
the board did not abuse its discretion.
allowed Roberios 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 boards
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 judges order allowing the boards motion for
judgment on the pleadings and remand for further proceedings
consistent with this opinion.
and facts .
details of Roberios crimes are set forth in Commonwealth
v. Roberio, 440 Mass. 245, 246-247, 797 N.E.2d 364
(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 Roberios first parole
application on the ground that he was not "fully
rehabilitated." The board cited Roberios 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 ...