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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 I

10 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).