Commonwealth v. Perez

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SJC-12251

COMMONWEALTH vs. FERNANDO PEREZ.

Hampden. April 3, 2017. - August 25, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ.1

Constitutional Law, Sentence. Due Process of Law, Sentence.
Practice, Criminal, Sentence.

Indictments found and returned in the Superior Court
Department on February 16 and March 2, 2001.

Following review by the Appeals Court, 62 Mass. App. Ct.
912 (2004) and 67 Mass. App. Ct. 1116 (2006), a motion for
resentencing, filed on March 7, 2016, was considered by Daniel
A. Ford, J., and a motion for reconsideration was considered by
him.

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.
Merritt Schnipper, for Committee for Public Counsel
Services, amicus curiae, submitted a brief.

1
Justice Hines participated in the deliberation on this
case and authored this opinion prior to her retirement.
 2

HINES, J. In the early morning hours of December 23, 2000,

the juvenile defendant, Fernando Perez, who was then seventeen

years of age, embarked on a crime spree in downtown Springfield.

Accompanied by his adult uncle and armed with a handgun, the

defendant committed two robberies, all within a span of thirty

minutes. While attempting a third robbery, he shot the intended

victim, a plain-clothed Springfield police officer. In

November, 2001, a Superior Court jury convicted the defendant of

armed robbery, armed assault with intent to rob, assault and

battery by means of a dangerous weapon, and related firearms

offenses. The judge sentenced the defendant to multiple

concurrent and consecutive terms, resulting in an aggregate

sentence of thirty-two and one-half years,2 with parole

eligibility after twenty-seven and one-half years.

2
The judge dismissed certain indictments, and on the
remaining indictments, he imposed the following sentences. On
the first set of indictments, the judge sentenced the defendant
as follows: armed robbery (count 1), from five to seven and
one-half years in State prison; armed robbery (count 3), from
five years to five years and one day in State prison, to run
from and after the sentence for count 1; armed robbery (count
5), ten years' probation to run from and after the sentence on
count 4 in the second set of indictments; and unlawful
possession of a firearm (count 7), two and one-half years in the
house of correction, concurrent with the sentence for count 3.

On the second set of indictments, the judge sentenced the
defendant as follows: armed assault with the intent to rob
(count 2), seven and one-half to ten years in State prison, to
run from and after the sentence on count 3 in the first set of
 3

In 2015, after our decision in Diatchenko v. District

Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko

I), S.C., 471 Mass. 12 (2015), the defendant filed a motion for

resentencing under Mass. R. Crim. P. 30 (a), as appearing in 435

Mass. 1501 (2001), arguing that the aggregate sentence imposed

violated the prohibition on cruel and unusual punishment under

the Eighth Amendment to the United States Constitution, and the

cognate provision of art. 26 of the Massachusetts Declaration of

Rights, by requiring him to serve twelve and one-half years

longer before parole eligibility than a juvenile defendant

convicted of murder. He argued also that the sentence violated

his right to due process as guaranteed by the Fourteenth

Amendment to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights and that, as a consequence,

he was entitled to be resentenced to a term of years allowing

parole eligibility on the same terms as a juvenile convicted of

murder. A Superior Court judge denied the motion, and the

indictments; assault and battery by means of a dangerous weapon
(count 4), from nine years and 364 days to ten years in State
prison, to run from and after the sentence for count 2; unlawful
possession of a firearm (count 5), two and one-half years in the
house of correction, concurrent with the sentence for count 7 of
the first set of indictments; and unlawful discharge of a
firearm (count 6), one day in the house of correction,
concurrent with the sentence for count 5.
 4

defendant appealed. We granted the defendant's application for

direct appellate review.3

On appeal, the defendant relies primarily on Roper v.

Simmons, 543 U.S. 551, 578 (2005) (invalidating death penalty

for juveniles), and its progeny4 to support his claim that the

aggregate sentence violates the proscription against cruel and

unusual punishment under the Eighth Amendment and art. 26. We

decline the invitation to decide the issue on Eighth Amendment

grounds, especially where the United States Supreme Court has

not interpreted the Eighth Amendment as broadly as urged by the

defendant. Instead, we resolve the issue under art. 26, which

we have interpreted more broadly than the Supreme Court has

interpreted the Eighth Amendment.5 We conclude that where a

juvenile is sentenced for a nonmurder offense or offenses and

the aggregate time to be served prior to parole eligibility

exceeds that applicable to a juvenile convicted of murder, the

sentence cannot be reconciled with art. 26 unless, after a

3
We acknowledge the amicus brief submitted by the Youth
Advocacy Division of the Committee for Public Counsel Services.
4
See Graham v. Florida, 560 U.S. 48, 75 (2010) (prohibiting
life sentence without possibility of parole for juveniles
convicted of nonhomicide offenses); and Miller v. Alabama, 567
U.S. 460, 465 (2012) (prohibiting mandatory life sentence
without parole for juveniles convicted of murder).
5
See Diatchenko v. District Attorney for the Suffolk Dist.,
466 Mass. 655, 668 (2013) (Diatchenko I), S.C., 471 Mass. 12
(2015).
 5

hearing on the factors articulated in Miller v. Alabama, 567

U.S. 460, 477-478 (2012) (Miller hearing), the judge makes a

finding that the circumstances warrant treating the juvenile

more harshly for parole purposes than a juvenile convicted of

murder. Accordingly, we remand the matter to the Superior Court

for a Miller hearing to determine whether the sentence comports

with the requirements of art. 26. If not, then the defendant

must be resentenced.

Background. 1. Facts. We recite the facts the jury could

have found. On December 23, 2000, around 1 A.M., 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.

The defendant was armed with a handgun, and his uncle, Tito

Abrante, shuttled him from crime to crime.6 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. Detective D'Amato said, "What's up?" to which the

defendant replied, "I'm going to rob you . . . ." In response,

Detective D'Amato said, "I don't think so. You should really

6
Tito Abrante has a criminal history and, at the time, had
been recently released from prison. He was charged with crimes
related to these events, but was tried separately from the
defendant.
 6

think about this. I'm a Springfield police officer and you

should think about what you're doing." 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. On January 30, 2001, the police arrested

the defendant in Scranton, Pennsylvania. In statements to

Scranton and Springfield police, the defendant admitted to

shooting Detective D'Amato but claimed Abrante committed the

other robberies.

2. Sentencing. Prior to sentencing, the trial judge

ordered a G. L. c. 123, § 15 (e), evaluation in aid of

sentencing, which was performed by Dr. Michael Sherry, a

designated forensic psychologist. In addition, a Superior Court

probation officer in Hampden County, Laura Periera, prepared a

presentence investigation report at the court's direction. The

judge previously had received and reviewed two reports from Dr.

Pamela Dieter-Sands, a licensed psychologist and the defendant's

expert witness.7 In her report, Dieter-Sands detailed the

defendant's upbringing, how he lived under the extreme stress of

his father's violence, and the vacuum that was left when an

uncle who had nurtured and supported the defendant was murdered

7
Dr. Pamela Dieter-Sands testified at trial regarding the
defendant's mental state at the time he committed his offense.
 7

in the spring of 2000. The defendant filled the void left by

this "loving father figure" with Abrante, whom he first met

about one month after his uncle's death. Periera reported that

"this defendant believed that if he did not follow through with

[Abrante's] orders, he would be subjected to bodily harm."

The Commonwealth sought concurrent life sentences on two of

the defendant's armed robbery convictions, and term-of-years

sentences totaling twenty to thirty years on the remaining

felony convictions. The defendant requested a sentence of ten

years in State prison and urged the judge to consider the

defendant's evaluations and his "horrible upbringing." Before

pronouncing sentence, the trial judge stated, "I recognize . . .

that at the time of these offenses [the defendant] was only

[seventeen] years old. And young men of the age of [seventeen]

frequently do not have the maturity to make good judgments. But

the law makes them responsible for their acts as adults,

nonetheless."8 The judge sentenced the defendant to an aggregate

term of thirty-two and one-half years imprisonment, resulting in

parole eligibility after twenty-seven and one-half years.

8
At the time of the conviction in 2001, the age threshold
for a juvenile offender was seventeen years of age. However, in
2013, the Legislature amended various provisions of G. L.
c. 119, including § 72, which raised the age threshold from
seventeen to eighteen years of age. See G. L. c. 119, § 72, as
amended through St. 2013, c. 84, §§ 21-22A (effective Sept. 18,
2013). See also Commonwealth v. Mogelinski, 466 Mass. 627, 630-
631 (2013).
 8

3. Posttrial proceedings. The defendant appealed from his

sentences to the appellate division of the Superior Court, which

dismissed the appeal. On February 15, 2002, the defendant filed

identical motions to revise and revoke his sentences on the

grounds of "basic fairness and justice, and the [d]efendant's

personal circumstances and background," pursuant to Mass. R.

Crim. P. 29, 378 Mass. 899 (1979). On January 3, 2006, the

trial judge denied the motions.

On October 25, 2004, the Appeals Court affirmed the

convictions. Commonwealth v. Perez, 62 Mass. App. Ct. 912, 914

(2004). On December 27, 2005, the defendant filed a motion for

a new trial, pursuant to Mass. R. Crim. P. 30, as appearing in

435 Mass. 1501 (2001), on the ground of newly discovered

evidence. The trial judge denied the motion without a hearing,

and the Appeals Court affirmed the denial. Commonwealth v.

Perez, 67 Mass. App. Ct. 1116 (2006) (unpublished opinion).

Thereafter, on March 7, 2016, the defendant filed a motion

for a resentencing hearing pursuant to Mass. R. Crim. P. 30 (a),

relying on our decision in Diatchenko I. The motion judge9

denied the motion, concluding "that a sentence providing for

parole eligibility after [twenty-seven and one-half] years is

not the functional equivalent of a life sentence without parole,

9
Because the trial judge had retired, the motion was heard
by the same judge who had presided over Abrante's trial.
 9

and therefore that the sentence imposed in this case was not

constitutionally infirm." On November 15, 2016, the judge

denied the defendant's motion to reconsider, and the defendant

filed an appeal in the Appeals Court. On January 18, 2017, this

court granted the defendant's application for direct appellate

review.

Discussion. 1. Standard of review. We review the denial

of a motion brought under Mass. R. Crim. P. 30 (a) for an abuse

of discretion. Commonwealth v. Wright, 469 Mass. 447, 461

(2014). Under that standard, the issue is whether the judge's

decision resulted from "'a clear error of judgment in weighing'

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives"

(citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

2. Constitutionality of the sentence. The Commonwealth

advances a litany of arguments against the defendant's right to

a review of the sentence, none of which is persuasive. We agree

that a judge has broad discretion in sentencing and that "[i]t

is not within the power of this court to review an otherwise

lawful sentence . . . [where] [t]his authority is delegated to

the [a]ppellate [d]ivision of the Superior Court under G. L.

c. 278, §§ 28A-28C." Commonwealth v. Sanchez, 405 Mass. 369,

379 n.7 (1989). Nonetheless, we have the power to review a
 10

sentence to determine whether it is unconstitutional, and we

exercise that power when, as here, it is appropriate to do so.

The defendant contends that his aggregate sentence -- which

requires him to serve twenty-seven and one-half years before he

is eligible for parole -- violates art. 26, because juveniles

convicted of the more serious crime of murder at the time of his

offenses were eligible for parole after fifteen years. The crux

of his argument is that our decision in Diatchenko I10 created a

presumptive ceiling on parole eligibility for crimes less

serious than murder, and that a sentence that treats him more

harshly than a juvenile convicted of murder therefore violates

the principle of proportionality inherent in art. 26.

We begin by outlining the parameters of the constitutional

prohibition against cruel and unusual punishment. In Diatchenko

I, 466 Mass. at 667, we interpreted art. 26 more broadly than

the United States Supreme Court has interpreted the Eighth

10
In Diatchenko I, 466 Mass. at 667, we declared
unconstitutional G. L. c. 265, § 2, to the extent that it
mandated a sentence of life in prison without the possibility of
parole for a juvenile convicted of murder in the first degree.
We also determined that G. L. c. 127, § 133A, barring parole
eligibility for defendants convicted of murder in the first
degree, was inapplicable to juveniles. Id. at 673. Thus, under
Diatchenko I, a juvenile sentenced for murder in 2002 would be
eligible for parole after fifteen years. In this case, we
analogize the juvenile defendant's eligibility for parole to a
juvenile defendant convicted of murder in 2002.
 11

Amendment.11 See Miller, 567 U.S. at 479 (mandatory sentence of

life in prison without parole for juvenile offenders violates

Eighth Amendment; individualized sentence required). Based on

the science undergirding the Supreme Court's determination that

"children are constitutionally different from adults for

purposes of sentencing," id. at 471, we held that a life

sentence without the possibility of parole violates art. 26,

regardless of whether such a sentence is mandatory or imposed in

the sentencing judge's discretion. Diatchenko I, supra at 671.

The point of our departure from the Eighth Amendment

jurisprudence was our determination that, under art. 26, the

"unique characteristics of juvenile offenders" should weigh more

heavily in the proportionality calculus than the United States

Supreme Court required under the Eighth Amendment. Id. The

touchstone of art. 26's proscription against cruel or unusual

11
Under the United States Supreme Court's Eighth Amendment
juvenile sentencing jurisprudence, an offender's status as a
juvenile places only narrow limitations on the range of
permissible sentences. For example, although in Roper v.
Simmons, 543 U.S. 551, 578 (2005), the Supreme Court held that
the Eighth Amendment prohibited the death penalty for juveniles,
the Court has not eliminated the possibility that a juvenile may
be sentenced to imprisonment for life. Miller, 567 U.S. at 489,
prohibits only a mandatory sentence of life without the
possibility of parole. With respect to juveniles convicted of
nonhomicide offenses, the Eighth Amendment has not been
construed to impose a temporal limitation on the sentence that
may be imposed. Graham, 560 U.S. at 75. Rather, taking into
account the distinctive attributes of offenders who are
juveniles at the time of the crime and the nature of the
offense, the Eighth Amendment requires only a "meaningful
opportunity" for, not a right to, parole. Id.
 12

punishment, however, remains proportionality. See id. at 669,

citing Graham v. Florida, 560 U.S. 48, 59 (2010). The essence

of proportionality is that "punishment for crime should be

graduated and proportioned to both the offender and the offense"

(citation omitted). Miller, supra at 469. Our specific inquiry

here is whether the requirement of proportionality bars the

imposition, on a juvenile defendant, of consecutive sentences

for nonmurder offenses with a resulting parole eligibility date

that exceeds that applicable to juveniles convicted of murder.

Although we have not been called upon to decide

proportionality in this nonmurder context for juvenile

defendants, we have considered proportionality as it pertains to

adult defendants. See Cepulonis v. Commonwealth, 384 Mass. 495,

496 (1981) (challenging constitutionality of sentence of forty

years for possession of sawed-off shotgun).12 We followed in

that case "a tripartite analysis to determine whether a

defendant has met his burden" to establish a disproportionality

of constitutional dimensions. Id. at 497, citing Commonwealth

v. Jackson, 369 Mass. 904, 910 (1976).

"The first prong of the disproportionality test
requires inquiry into the 'nature of the offense and the

12
In Cepulonis v. Commonwealth, 384 Mass. 495, 497-499
(1981), we held that the defendant's sentence of from forty to
fifty years in State prison for possession of a machine gun, in
violation of G. L. c. 269, § 10 (c), was not so disproportionate
as to constitute cruel and unusual punishment in violation of
the Eighth Amendment and art. 26.
 13

offender in light of the degree of harm to society.' . . .
The second prong of the disproportionality analysis
involves a comparison between the sentence imposed here and
punishments prescribed for the commission of more serious
crimes in the Commonwealth. . . . The final prong this
court examines in the disproportionality analysis is a
comparison of the challenged penalty with the penalties
prescribed for the same offense in other jurisdictions."

Cepulonis, supra at 497-498. That tripartite analysis,

supplemented with the greater weight given to a juvenile

defendant's age, provides a useful framework for our

consideration of this juvenile defendant's challenge to the

constitutionality of his sentence. See Diatchenko I, 466 Mass.

at 669.

We examine first "the nature of the offense and the

offender in light of the degree of harm to society" (emphasis

supplied). Jackson, 369 Mass. at 910. With respect to the

first part, we do not discount the severity of the defendant's

multiple offenses -- among other crimes, he shot a police

officer during an attempted armed robbery, after having

committed two other armed robberies only minutes earlier. The

evidence established that the police officer suffered serious

injuries necessitating multiple surgeries. In the abstract --

i.e., without considering the offender -- the nature of the

multiple offenses, and the "degree of the harm to society," id.,

was such that a judge in the exercise of discretion might be

warranted in imposing consecutive sentences for the crimes,
 14

aggregating to a sentence of thirty-two and one-half years with

parole eligibility after twenty-seven and one-half years.

Disproportionality is not, however, an abstract inquiry. The

first prong of the disproportionality test also requires

consideration of the particular offender. In Diatchenko I, 466

Mass. at 670, quoting Miller, 567 U.S. at 471, we reasoned that

the unique characteristics of juvenile offenders, including

their "diminished culpability and greater prospects for reform,"

made imposition of a life sentence without parole eligibility

unconstitutional.13 Because of those characteristics, imposition

of an aggregate sentence of thirty-two and one-half years --

with parole eligibility exceeding that available to a juvenile

defendant convicted of murder -- while perhaps within the range

of a judge's discretion, may satisfy the first prong of the

disproportionality test only if the factors described in Miller,

supra at 477-478, are considered by the sentencing judge.

We come to a similar conclusion under the second prong of

the proportionality calculus. Under that prong, we consider the

disparity "between the sentence imposed [on the juvenile] and

13
The juvenile defendant was sentenced in 2002. Although,
as the dissenting opinion describes, the sentencing judge
"considered the factors relating to the defendant's age,
competency, culpability, background, and familial influence,"
post at , the judge did not have the benefit of "current
scientific research on adolescent brain development, and the
myriad significant ways that this development impacts a
juvenile's personality and behavior" (footnote omitted).
Diatchenko I, 466 Mass. at 669.
 15

punishments prescribed for the commission of more serious crimes

in the Commonwealth." Cepulonis, 384 Mass. at 498. On its

face, the aggregate sentence imposed on this juvenile defendant,

albeit for serious crimes, is more severe -- at least as to

parole eligibility -- than a sentence that could be imposed on a

juvenile convicted of murder, the most serious criminal offense

under our law.14 A facial disproportionality of this magnitude

in the punishment for nonmurder offenses is presumptively beyond

that which can be tolerated by art. 26. In this regard, we are

persuaded by the United States Supreme Court's reasoning in

Graham, 560 U.S. at 69, that juvenile "defendants who do not

kill, intend to kill, or foresee that life will be taken are

categorically less deserving of the most serious forms of

punishment than are murderers." We agree that under art. 26,

"[t]here is a line 'between homicide and other serious violent

offenses against the individual.'" Id., quoting Kennedy v.

Louisiana, 554 U.S. 407, 438 (2008). In the absence of

extraordinary circumstances, which we discuss infra, this line

must not be crossed to treat a juvenile convicted of a nonmurder

offense, or multiple nonmurder offenses, more harshly than a

14
See G. L. c. 279, § 24, which provides in relevant part:
"In the case of a sentence of life imprisonment for murder in
the first degree committed by a person on or after the person's
fourteenth birthday and before the person's eighteenth birthday,
the court shall fix a minimum term of not less than [twenty]
years nor more than [thirty] years . . . ."
 16

juvenile convicted of murder. The juvenile defendant's

aggregate sentence fails the second prong of the

disproportionality test. We therefore need not discuss the

third prong.

Based on the Cepulonis analysis, therefore, a juvenile

defendant's aggregate sentence for nonmurder offenses with

parole eligibility exceeding that applicable to a juvenile

defendant convicted of murder is presumptively disproportionate.

That presumption is conclusive, absent a hearing to consider

whether extraordinary circumstances warrant a sentence treating

the juvenile defendant more harshly for parole purposes than a

juvenile convicted of murder. That inquiry, ultimately whether

the sentence is proportionate to the offender, as a juvenile,

and to the particular offenses, must be assessed in light of the

Miller factors as set forth infra.

We turn next to the details of a Miller hearing, conducted

to identify any extraordinary circumstance where the presumptive

disproportionality of a juvenile sentence may have been

dispelled. In addition to the factors a judge ordinarily would

consider in exercising discretion in sentencing, see

Commonwealth v. Costa, 472 Mass, 139, 147 (2015), the judge must

weigh factors specifically related to the juvenile's age. See

Miller, 567 U.S. at 477-478 (identifying factors relevant to

consideration of juvenile's age in sentencing). Drawing from
 17

the factors articulated in Miller, we conclude that the judge

must weigh (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." Id. at 477. Only after the judge weighs those

factors, applies them uniquely to the juvenile defendant, and

considers whether a punishment exceeding that applicable to a

juvenile convicted of murder (at least with respect to parole

eligibility) is appropriate in the circumstances, may such a

sentence be imposed. See Diatchenko I, 466 Mass. at 668.

Contrary to the dissent's view of the sentencing hearing,

the judge expressly declined to consider the juvenile

defendant's age as a mitigating factor, which, as we have said,

is required in the circumstances of this case. Defense counsel

went to great lengths in emphasizing the juvenile's age, his

family circumstances, and the uncle's role in encouraging the

juvenile's involvement in the offenses, factors that take on

greater significance when, as here, a sentencing decision must

be informed by a Miller hearing. Presaging the United States

Supreme Court's assessment of the attributes of youth in the
 18

Roper line of cases, the judge accepted that "young men at the

age of [seventeen] frequently do not have the maturity to make

good judgments." However, without the benefit of the United

States Supreme Court's Eighth Amendment juvenile sentencing

jurisprudence and our interpretation of art. 26 in Diatchenko I,

the judge did not consider this as a mitigating factor.

Instead, he concluded that "the law makes them responsible for

their acts as adults, nonetheless." While the judge was correct

that a juvenile defendant's age does not excuse criminal

conduct, it does not appear that he gave appropriate

consideration to the defendant's age as a mitigating factor in

the sentencing. Accordingly, the purpose of the Miller hearing

has not been met in this case.

To be clear, we do not suggest that a juvenile convicted of

nonmurder offenses may never be sentenced to consecutive terms

or to a term with parole eligibility exceeding that available

for a juvenile convicted of murder. That option remains open to

a sentencing judge in an appropriate case, after weighing the

factors considered in the Miller hearing, and when the art. 26

requirements as articulated here are met.

3. Right to resentencing for parole eligibility after

fifteen years. The defendant argues that his right to due

process compels resentencing to conform his parole eligibility

to that available to juveniles convicted of murder. He claims
 19

that the court's reasoning in Costa, 472 Mass. at 144, should be

applied to him. He is mistaken. Costa was not decided on

constitutional grounds, and therefore, it has no bearing on the

due process claim asserted by the defendant. Id. at 145. On

the contrary, Costa is sui generis. Costa, a juvenile

defendant, was sentenced to consecutive life sentences for

murder, on the apparent assumption that the structure of his

sentence was irrelevant; at the time, he was not eligible for

parole at all. Id. at 141-142. Because of the change in the

sentencing of juveniles convicted of murder brought by

Diatchenko I, it simply was not possible to know if the

sentencing judge would have made the same "somewhat symbolic"

choice to impose consecutive sentences. Costa, supra at 143.

For that reason only, Costa was entitled to a resentencing

hearing. The court emphatically did not hold that Costa was

entitled to be resentenced to concurrent life terms to allow

parole eligibility after fifteen years. Id. at 144. Thus, our

ruling in Costa does not advance the defendant's argument that

he is entitled to be resentenced to a term that permits parole

eligibility on the same terms as a juvenile convicted of murder.

Conclusion. Because the juvenile defendant's sentences are

presumptively disproportionate under art. 26, and the judge

imposed the sentences without the benefit of a Miller hearing,

we vacate the denial of the defendant's rule 30 motion. We
 20

remand the case to the Superior Court for a Miller hearing and,

if necessary, for resentencing.

So ordered.
 LOWY, J. (dissenting, with whom Cypher, J., joins). I

disagree with the court's conclusion that the defendant's

sentence violates art. 26 of the Massachusetts Declaration of

Rights based on the test from Cepulonis v. Commonwealth, 384

Mass. 495 (1981). The ultimate purpose of the three-prong test

is to determine whether the punishment is "so disproportionate

to the crime that it 'shocks the conscience.'" Diatchenko v.

District Attorney for the Suffolk Dist., 466 Mass. 655, 669

(2013), S.C., 471 Mass. 12 (2015), quoting Cepulonis, supra at

497. The sentence in this case is not so disproportionate.

I would conclude that the first prong of the Cepulonis

analysis, which requires consideration of the underlying crimes

and the defendant's personal characteristics, is satisfied. See

Cepulonis, 384 Mass. at 497. The judge meticulously considered

both factors. The judge noted the seriousness of the crimes and

even presciently considered the factors relating to the

defendant's age, competency, culpability, background, and

familial influence that the United States Supreme Court, in

Miller v. Alabama, 567 U.S. 460, 477-478 (2012), would

subsequently mandate for juveniles in capital cases.1

1
The judge explicitly considered that the defendant was
seventeen years old and that "young men at the age of
[seventeen] frequently do not have the maturity to make good
judgments." The judge also noted the defendant's intellectual
limitations, difficulty in his upbringing, and susceptibility to
his uncle's influence, and a psychological report detailing his
 2

The second prong, which requires comparing the aggregate

sentence given to the defendant with sentences for more serious

crimes in the Commonwealth, is also satisfied. See Cepulonis,

384 Mass. at 498. Given the number and the seriousness of the

convictions, I would not conclude that the aggregate sentence in

this case is out of proportion with sentences for more serious

crimes. Although a defendant convicted of a single count of

murder, as the court points out, would become parole-eligible

before twenty-seven and one-half years had elapsed, the

defendant here was convicted of, and sentenced for, multiple

crimes: three counts of armed robbery, two counts of unlawful

possession of a firearm, one count of armed assault with the

intent to rob, one count of assault and battery by means of a

dangerous weapon, and one count of discharging a firearm within

500 feet of a dwelling. Precluding a judge from entering

consecutive sentences for these serious offenses, particularly

when a judge had already closely considered the defendant's

youth and its signature features, would unduly hamper a judge's

sentencing discretion. See Commonwealth v. Lucret, 58 Mass.

desire to please adults. Nevertheless, the judge was within his
discretion to conclude that there was "no question that [the
defendant] was old enough, intelligent enough, [and] capable of
knowing right from wrong" such that his "bad judgment" in
committing three armed robberies could not be "excused by age or
by any of the other circumstances of [the defendant's] life."
As the judge stated, he looked to "the offense and to the victim
of the offense, as well as to the defendant," just as the
Cepulonis analysis requires.
 3

App. Ct. 624, 628 (2003) (judicial discretion to impose

concurrent or consecutive discretion is "[f]irmly rooted in

common law"). That an aggregate sentence for multiple crimes

may exceed the sentence for a single, more serious crime does

not in itself establish an art. 26 violation for a juvenile, as

the court today indicates.

Looking to the sentences in other jurisdictions, I would

also conclude that the third prong is satisfied in this case.

See Cepulonis, 384 Mass. at 498. States such as New Hampshire

and Indiana allow for a comparable sentence for crimes similar

to the defendant's most serious convictions. For example, four

of the defendant's convictions -- three of armed robbery, N.H.

Rev. Stat. Ann. § 636:1(III), and one of assault and battery by

means of a dangerous weapon, id. at § 631:1(I)(a) -- could each

result in twenty-year sentences. Id. at § 651:2(II-g). Judges

in New Hampshire retain the well-established common-law

discretion to impose consecutive sentences. Duquette v. Warden,

N.H. State Prison, 154 N.H. 737, 743-744 (2007). Similarly, in

Indiana the defendant's three convictions of armed robbery would

likely qualify as two felonies at level two and one felony at

level three,2 Ind. Code § 35-42-5-1, which would carry sentences

2
Indiana classifies robbery as a level two felony if there
was serious bodily injury resulting to any person other than the
defendant, and it classifies robbery as a level three if the
robbery was committed while armed with a deadly weapon or
 4

of between ten and thirty years, and between three and sixteen

years, respectively. Id. at §§ 35-50-1-2(2)(a)(12), 35-50-2-

4.5, 35-50-2-5(b). Judges in Indiana have statutory authority

to impose consecutive sentences for crimes of violence, which

include both level two and level three armed robbery, without

limiting the duration of the consecutive sentence. Id. at § 35-

50-1-2(c).

For these reasons, I believe the defendant's sentence

satisfies art. 26. I respectfully dissent.

results in bodily injury to any person other than defendant.
Ind. Code § 35-42-5-1(1)(a).