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SJC-12498

COMMONWEALTH vs. FERNANDO PEREZ.

Hampden. May 10, 2018. - September 14, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,

& Kafker, JJ.

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 this court, 477 Mass. 677 (2017), a 

motion for resentencing was heard by Daniel A. Ford, J.

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.

Elizabeth A. Billowitz & Michelle Menken, for youth 

advocacy division of the Committee for Public Counsel Services, 

amicus curiae, submitted a brief.

KAFKER, J. In Commonwealth v. Perez, 477 Mass. 677, 688

(2017) (Perez I), we determined that the juvenile defendant, 
2

Fernando Perez, received a sentence for his nonhomicide offenses 

that was presumptively disproportionate under art. 26 of the 

Massachusetts Declaration of Rights in that the time he would 

serve prior to parole eligibility exceeded that applicable to a 

juvenile convicted of murder. We therefore remanded the matter 

to the Superior Court for a hearing to determine whether, in 

light of the factors articulated by the United States Supreme 

Court in Miller v. Alabama, 567 U.S. 460, 477-478 (2012), the 

case presented extraordinary circumstances justifying a longer

parole eligibility period. Perez I, supra. On remand, a judge 

in the Superior Court (hearing judge) held a Miller hearing and 

concluded that extraordinary circumstances were present. He 

therefore denied the defendant's motion for resentencing, 

leaving intact a longer period of incarceration for the 

defendant prior to his being eligible for parole than would be 

the case for a juvenile convicted of murder. The defendant was 

eligible for parole after twenty-seven and one-half years in 

prison, while a juvenile convicted of murder at that time would 

have been eligible for parole after fifteen years. 

See Diatchenko v. District Attorney for the Suffolk Dist., 466 

Mass. 655, 673 (2013), S.C., 471 Mass. 12 (2015). The defendant

appealed, and we granted his application for direct appellate 

review. Here, we clarify the extraordinary circumstances

requirement justifying longer periods of incarceration prior to 
3

eligibility for parole for juveniles who did not commit murder

than for those who did. We conclude that the hearing judge 

erred in finding extraordinary circumstances in this case, 

particularly in regard to the juvenile's personal and family 

attributes. The crimes he committed meet the extraordinary 

circumstances requirement, but his personal and family 

circumstances do not.1

Facts. As we described in Perez I, 477 Mass. at 679-680, 

in the early hours of December 23, 2000, 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."

That night his uncle, Tito Abrante, gave the defendant a gun and 

encouraged him to get out of the vehicle and commit these 

crimes. The uncle "shuttled [the defendant] from crime to 

crime. 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" and threatened 

to rob him (footnote omitted). Id. D'Amato identified himself 

as a police officer and told the defendant to desist. "As 

Detective D'Amato reached for his badge, the defendant shot him; 

 1 We acknowledge the amicus brief submitted by the youth 

advocacy division of the Committee for Public Counsel Services.
4

the defendant continued to fire the weapon as he retreated from 

the scene. Detective D'Amato suffered serious injuries that 

required multiple surgeries." Id. at 680. The first bullet 

missed, but the second bullet went through his colon, nicked his 

aorta, passed through his vena cava, and nicked his right 

kidney. Indeed, after the Miller hearing, the hearing judge 

found that D'Amato is permanently disabled and has undergone 

further surgeries since the defendant's initial sentencing, and 

that "in the aftermath of this incident his life became a living 

hell and has been changed forever." For this crime spree, the 

defendant was convicted by a jury of armed robbery, armed 

assault with intent to rob, assault and battery by means of a 

dangerous weapon, and firearms offenses. After an evaluation 

under G. L. c. 123, § 15 (e), and after considering further 

information about the defendant's upbringing, the trial judge 

sentenced him to an aggregate sentence of thirty-two and onehalf years, with parole eligibility after twenty-seven and onehalf years.2

 2 On one set of indictments, the trial 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 
5

Miller hearing. At the Miller hearing on remand, the 

hearing judge, who had presided over Abrante's trial arising 

from the same incidents, made further findings.3 He found that 

the defendant had a "very difficult upbringing" characterized by 

domestic violence. The hearing judge found that the defendant's 

father physically and emotionally abused his mother, threatening 

to kill her in front of the defendant and his siblings. The 

defendant "would sometimes arm himself with baseball bats and 

 

years in a house of correction, concurrent with the sentence for 

count 3.

On the second set of indictments, the trial judge sentenced 

the defendant as follows: armed assault with the intent to rob 

(count 2), from 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 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 a 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 a house of correction, 

concurrent with the sentence for count 5.

3 The hearing judge took no testimony at the Miller hearing, 

see Miller v. Alabama, 367 U.S. 460 (2012), but relied on 

documentary evidence, including the trial transcript and 

presentencing reports. Despite the fact that the hearing judge 

presided over Tito Abrante's trial and thus was presumably more 

familiar with the facts of the case than any other judge to whom 

the case might have been assigned, he nonetheless did not hear 

the evidence as it was presented in the defendant's trial. 

Rather, he could consider only the written record. In these 

circumstances, we do not give his decision the same "special 

deference" that we give when a posttrial motion is heard by the 

same judge who presided at trial (citation omitted). See, e.g., 

Commonwealth v. Moffat, 478 Mass. 292, 299 (2017).
6

screwdrivers in order to be prepared to protect his mother." 

His mother and the children moved frequently to escape the 

violence, and the mother eventually remarried and moved to 

Massachusetts. For a time, the defendant's "Uncle Eddie," his 

mother's brother, assisted in rearing the children. As the 

hearing judge found, "By all accounts, Uncle Eddie was a 

positive influence who became a father figure to the defendant 

and taught the defendant to be 'a good man.' The defendant 

loved Uncle Eddie very much and aspired to be like him." 

Unfortunately, Uncle Eddie was murdered in Puerto Rico, leaving 

the defendant "depressed, preoccupied, and even obsessed with 

his uncle's death." Shortly thereafter, Abrante was released 

from prison after serving a seventeen-year sentence on prior 

offenses and moved in with the family.

The hearing judge found that Abrante "was a monster in the 

most damning sense of that word." "He told the defendant 

stories about violent acts that he had committed and said that 

he wanted to train the defendant to be his 'back-up' so that 

they could avenge the death of Uncle Eddie. He bragged about 

killing a number of people, including a fifteen year old girl 

and other women and children. He plied the defendant with drugs 

and alcohol, and encouraged him to have sexual relations with

'older women.' He beat a woman and attacked her with a knife in 

the defendant's presence. He put the defendant 'on alert' to 
7

accompany him to New York to perform a 'hit.' He tried to 

control the defendant's movements and allowed him to visit with 

his mother and girl friend for only short periods of time. The 

defendant claimed that he was in constant fear of [Abrante], and 

worried that he would be killed if he crossed his uncle."

The defendant did briefly move to Maine to enter the Job 

Corps, but returned to Massachusetts after a few months. The 

hearing judge was unable to determine whether the defendant

returned because, as the Commonwealth argued, he liked the 

criminal lifestyle to which Abrante had exposed him or because, 

as the defendant argued, he was lonely and missed his girl

friend and his mother. The hearing judge found only that the 

defendant returned "despite his fear of his uncle and with the 

knowledge that his uncle was attempting to recruit him into a 

life of crime."

The hearing judge also made findings about the defendant's 

personal characteristics. He found that the defendant's 

intelligence quotient was "at the low end of the normal range,"

that he had been in special education, and that he "struggled to 

keep up with his school work." He was diagnosed with 

posttraumatic stress disorder, depression, and attention deficit 

disorder. As the hearing judge found, "[o]ne of [his mental 

health counsellors] described [him] as trying 'to please others 

all the time,' and noted that he was not 'very strong' and 'not 
8

a leader.'" An evaluator observed: "He has some difficulty 

comprehending what is said to him, and has little skill at 

understanding complex situations and at predicting outcomes. 

When he is not sure what to say he acquiesces, when he is not 

sure what to do, he complies, and when he does not know a 

problem's solution, he is more likely to guess than inquire for 

help." His mental conditions, however, did not interfere with 

his ability to form the intent required for his offenses, and he 

knew right from wrong. The hearing judge also noted that, 

despite his fear of Abrante, the defendant was able to stand up 

to him on at least one occasion, refusing to accompany him to 

New York. The defendant was not under duress when he committed 

his crimes, as the jury found.

Based on his findings, the hearing judge considered 

the Miller factors. As we articulated in Perez I, those factors 

are: "(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.'" Perez I, 477 Mass. at 686, quoting Miller, 567 

U.S. at 477. Weighing those factors, the hearing judge 
9

determined that although the defendant's "horrible" family and 

home environment, and the influence of Abrante, might have 

favored an earlier parole eligibility, the circumstances of the 

crimes themselves, particularly the catastrophic injuries 

suffered by D'Amato, outweighed those considerations.4 As to the 

defendant's personal characteristics, the hearing judge 

determined that although the defendant might have acted 

impetuously, he nonetheless had the maturity to appreciate the 

risks and consequences of his actions. The hearing judge 

therefore ruled that the Commonwealth had demonstrated the 

existence of extraordinary circumstances warranting the 

imposition of a sentence treating the defendant more harshly for 

parole purposes than a juvenile convicted of murder.

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

of a motion brought under Mass. R. Crim. P. 30 (a), as appearing 

in 435 Mass. 1501 (2001), for abuse of discretion or error of 

 4 The hearing judge also found that "there was evidence that 

the defendant later laughed about how . . . D'Amato lay in the 

street, holding his stomach and struggling for his life." In 

fact, a witness testified that the defendant laughed at some 

points while describing his offenses to her, but she could not 

recall precisely at which points. In our view, the trial 

transcript is unclear regarding whether the defendant

specifically laughed about D'Amato's suffering. As there was no 

testimony presented at the Miller hearing, "we are in 'as good a 

position as the [hearing] judge to assess the trial record." 

Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017), quoting 

Commonwealth v. Phinney, 446 Mass. 155, 158 (2006), S.C., 448 

Mass. 621 (2007).
10

law.5 See, e.g., Commonwealth v. Wright, 469 Mass. 447, 461 

(2014). The defendant argues that the hearing judge erred by 

finding extraordinary circumstances and therefore failing to 

resentence him so as to provide for a parole eligibility date

conforming to that available to juveniles convicted of murder. 

He contends that the hearing judge's erroneous determination and 

conclusion violates art. 26's guarantee of proportionality, as 

we defined proportionality in Perez I. Where a defendant claims 

that a judge has made an error of constitutional dimension, "we 

accept the judge's subsidiary findings of fact absent clear 

error and leave to the judge the responsibility of determining 

the weight and credibility to be given . . . testimony presented 

at the motion hearing" but "review independently the application 

of constitutional principles to the facts found." Commonwealth

v. Villagran, 477 Mass. 711, 713 (2017), quoting Commonwealth

 5 In Commonwealth v. Perez, 477 Mass. 677, 681-682 (2017),

we stated:

"We review the denial of a motion brought under Mass. R. 

Crim. P. 30 (a)[, as appearing in 435 Mass. 1501 (2001)],

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)."

To be clear, the denial of such a motion is also reviewed for 

error of law. See, e.g., Wright, supra. In the instant case,

we conclude that there was an error of law.
11

v. Meneus, 476 Mass. 231, 234 (2017), and Commonwealth v. Amado, 

474 Mass. 147, 151 (2016) (reviewing ruling on motion to 

suppress).

In the instant case, however, the hearing judge was not the 

trial judge, and his fact finding was based on a review of the 

trial record. We are therefore in the same position as the 

hearing judge in this regard. That being said, with the 

exception of his finding concerning the defendant's laughter 

regarding the injuries inflicted on the officer, see note 

4, supra, we accept and adopt his subsidiary findings. We do, 

however, reach a different conclusion regarding the application 

of art. 26 to those facts.

2. Sentencing after Diatchenko. After our decision 

in Diatchenko, "a sentencing statute prescribing life without 

the possibility of parole [for murder in the first degree] in 

effect became a statute prescribing, for juvenile offenders, 

life with the possibility of parole after fifteen 

years." Commonwealth v. Costa, 472 Mass. 139, 140 (2015). We 

further held that "a life sentence without the possibility of 

parole [for murder in the first degree] violates art. 26, 

regardless of whether such sentence is mandatory or imposed in 

the sentencing judge's discretion." Perez I, 477 Mass. at 683, 

citing Diatchenko, 466 Mass. at 671. Under the statutes then in 

effect, a sentencing judge had no discretion to impose a period
12

of incarceration prior to eligibility for parole that was longer 

than fifteen years, even for murder in the first 

degree. Costa, supra. See note 6, infra. In Perez I, supra, 

we were then presented with the question "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."

In Perez I, 477 Mass. at 686, we ruled:

"[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."

At such a hearing, the judge must weigh the factors 

articulated in Miller, 567 U.S. at 477-478, "appl[y] them 

uniquely to the individual defendant, and consider[] whether a

[parole eligibility date] exceeding that applicable to a 

juvenile convicted of murder (at least with respect to parole 

eligibility) is appropriate in the circumstances." Perez I, 477 

Mass. at 686, citing Diatchenko, 466 Mass. at 668. We clarify 

today that, for juveniles, the criminal conduct alone is not 

sufficient to justify a greater parole eligibility period than 

is available for murder. The juvenile's personal and family 
13

history must also be considered independently; this

consideration of the individual's personal and family history is 

also not the ordinary mitigation analysis associated with 

sentencing. We emphasize today that both the crime and the 

juvenile's circumstances must be extraordinary to justify a 

longer parole eligibility period. In the instant case, the 

criminal conduct was comparable to murder but the juvenile's 

individual characteristics did not establish that there was no

reasonable possibility of reform and redemption within the 

parole eligibility period provided for juvenile murderers.6

 6 In response to our decisions in Diatchenko and 

Commonwealth v. Brown, 466 Mass. 676 (2013), the Legislature 

established specific parole eligibility dates for juvenile 

offenders convicted of murder in the first degree. G. L. 

c. 279, § 24.

"The resulting legislation establishes that, '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' 

before the individual becomes eligible for parole 'of not 

less than [twenty] years nor more than [thirty] years.' 

Id. Where the conviction of murder in the first degree is 

based on extreme atrocity or cruelty, 'the court shall fix 

a minimum term of [thirty] years.' Id. Finally, where the 

conviction of murder in the first degree for a juvenile 

offender is based on 'deliberately premeditated malice 

aforethought . . . , the court shall fix a minimum term of 

not less than [twenty-five] years nor more than [thirty] 

years.' Id."

Commonwealth v. Costa, 472 Mass. 139, 145 (2015). The defendant

was sentenced in 2002, well before the enactment of this new 

sentencing statute and while the old sentencing statute was 

still in force. As previously explained, "[b]ecause our 
14

The Miller principles we apply arise from the Supreme 

Court's recognition "that children are constitutionally 

different from adults for purposes of sentencing. Because 

juveniles have diminished culpability and greater prospects for 

reform, . . . 'they are less deserving of the most severe 

punishments.'" Miller, 567 U.S. at 471, quoting Graham

v. Florida, 560 U.S. 48, 68 (2010). As the Court further 

explained, "children have a 'lack of maturity and an 

underdeveloped sense of responsibility,' leading to 

recklessness, impulsivity, and heedless risk-taking"; they "are 

more vulnerable . . . to negative influences and outside 

pressures" and less able "to extricate themselves from horrific, 

crime-producing settings"; and their character traits "are 'less 

fixed' and [their] actions less likely to be 'evidence of 

irretrievabl[e] deprav[ity].'" Miller, supra, quoting Roper

v. Simmons, 543 U.S. 551, 569-570 (2005). This recognition is

based in part on advances in scientific research concerning the 

development of the juvenile brain, Miller, supra at 471-472, 

research that we have relied on as well. Diatchenko, 466 Mass. 

 

decisions in Diatchenko and Brown struck the parole 

ineligibility provision from [the old] statute when applied to 

juvenile offenders, the result was that . . . [the] statute 

. . . required a sentence of life with parole eligibility after 

fifteen years." Costa, supra at 146. We therefore compare the 

defendant's parole eligibility date to the fifteen-year 

requirement.
15

at 669-670. The Miller Court, in ruling that the particular

juvenile murderer could not be subject to a mandatory sentence 

of life without the possibility of parole, opined that 

"appropriate occasions for sentencing juveniles to this harshest 

possible penalty will be uncommon . . . because of the great 

difficulty . . . of distinguishing at this early age between 

'the juvenile offender whose crime reflects unfortunate yet 

transient immaturity, and the rare juvenile offender whose crime 

reflects irreparable corruption.'" Miller, supra at 479-480, 

quoting Roper, supra at 573, and Graham, supra at 68.

In Miller, 567 U.S. at 465, 478, the Supreme Court

expressly recognized the viciousness of the murder, but 

nonetheless concluded that the individual characteristics of the 

juvenile murderer must be considered before imposing a life 

sentence without parole. See Roper, 543 U.S. at 573 ("An 

unacceptable likelihood exists that the brutality or coldblooded nature of any particular crime would overpower 

mitigating arguments based on youth as a matter of course, even 

where the juvenile offender's objective immaturity, 

vulnerability, and lack of true depravity should require a 

sentence less severe than death"). We likewise consider both 

the crime and the individual, although we provide a more 

protective analysis under art. 26 regarding the individual 

characteristics. See Perez I, 477 Mass. at 683 ("The point of 
16

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 [to the United States 

Constitution]"). The criminal conduct must be extraordinary and 

thus comparable to murder, and the personal characteristics of 

the juvenile must also be extraordinary in that they necessitate 

a parole eligibility period longer than that available for a 

juvenile murderer, because there is no reasonable possibility of 

redemption in less than that period of time.

In regard to the individualized inquiry, we have further 

explained:

"Given current scientific research on adolescent brain 

development, and the myriad significant ways that this 

development impacts a juvenile's personality and behavior, 

a conclusive showing of traits such as an 'irretrievably 

depraved character,' Roper, 543 U.S. at 570, can never be 

made, with integrity, by the Commonwealth at an 

individualized hearing to determine whether a sentence of 

life without parole should be imposed on a juvenile 

homicide offender. See Miller, [567 U.S. at 471]. Simply 

put, because the brain of a juvenile is not fully 

developed, either structurally or functionally, by the age 

of eighteen, a judge cannot find with confidence that a 

particular offender, at that point in time, is 

irretrievably depraved."

Diatchenko, 466 Mass. at 669-670.

We therefore do not require the Commonwealth to prove that 

the defendant exhibited "irretrievable depravity" or 
17

"irreparable corruption" such as might justify, for Eighth 

Amendment purposes albeit not under art. 26, a sentence of life 

without parole. See Miller, 567 U.S. at 471, 479-480. See

also Diatchenko, 466 Mass. at 669-670.7 Rather, we require the 

Commonwealth to prove that the juvenile's personal 

characteristics make it necessary to delay parole eligibility

for a time exceeding that available to juveniles convicted of 

murder. Stated another way, the Commonwealth must prove that 

there is no reasonable possibility of the juvenile's being 

rehabilitated within the time after which a juvenile convicted 

of murder becomes eligible for parole.8 As applied to the 

 7 We also note that the United States Supreme Court, in 

focusing on "irreparable corruption" and "irretrievable 

depravity," was considering life without parole, not shorter 

parole eligibility periods, as we are here. See generally 

Miller, 567 U.S. 460; Graham v. Florida, 560 U.S. 48 (2010); 

Roper v. Simmons, 543 U.S. 551 (2005).

8 Without raising the issue with either the trial or the 

hearing judge, the defendant urges us to hold that the 

Commonwealth must make this showing at least by clear and 

convincing evidence. As he points out, some State courts have

weighed the due process considerations set forth in Mathews v. 

Eldridge, 424 U.S. 319 (1976), and decided in favor of imposing 

a high standard on the government in cases where a juvenile was 

facing a sentence of life without parole. See Commonwealth v. 

Batts, 640 Pa 410, 475-476 (2017); Davis v. State, 2018 WY 40, 

¶¶ 48-50. Because the evidence here was insufficient to satisfy 

the extraordinary circumstances requirement even under a 

preponderance standard, we need not resolve the issue, and do 

not, given its complexity and its first being raised on appeal. 

As a precautionary matter, however, if a sentencing judge 

considers that the difference between a preponderance and a 

clear and convincing evidence standard would matter in the 
18

defendant, that length of time is fifteen years. See note 

6, supra.

We recognize the difficulty and complexity of this task, 

and the need to develop better scientific tools to identify the 

factors, such as psychopathy, that support a finding that a 

juvenile is not reasonably likely to be rehabilitated. See T. 

Grisso & A. Kavanaugh, Prospects for Developmental Evidence in 

Juvenile Sentencing Based on Miller v. Alabama, 22 Psychol. Pub. 

Pol'y & L. 235, 240 (2016). See also Roper, 543 U.S. at 573, 

citing American Psychiatric Association, Diagnostic and 

Statistical Manual of Mental Disorders 701-706 (4th ed. rev. 

2000) ("As we understand it, this difficulty underlies the rule 

forbidding psychiatrists from diagnosing any patient under 

[eighteen] as having antisocial personality disorder, a disorder 

also referred to as psychopathy or sociopathy . . ."). It is 

for this reason, however, that we consider parole eligibility 

periods longer than those provided for juvenile murderers to 

require extraordinary circumstances.

Applying these principles to the defendant's case, it is 

clear that the crimes themselves met the extraordinary 

circumstances requirement of Perez I. The defendant committed 

 

determination of exceptional individual circumstances justifying 

a longer parole eligibility period, he or she should so 

indicate.
19

two armed robberies and attempted a third. In that attempt, the 

defendant repeatedly shot a police detective, gravely and 

permanently injuring him after he identified himself and told

the defendant to desist. The detective has suffered terribly

from the shooting. That the defendant did not kill D'Amato 

strikes us as a matter of pure happenstance. The defendant was 

also the principal in all of these crimes, not merely a joint 

venturer with no control over the principal's actions. 

Moreover, while it seems clear that the defendant was under 

Abrante's influence, he nonetheless acted under his own 

volition. Nothing forced the defendant to shoot D'Amato; he 

chose to do that.

However, we are not persuaded that the defendant's personal 

characteristics meet the extraordinary circumstances requirement 

set out in Perez I. As far as we are able to tell, until he 

embarked on his crime spree, the defendant never engaged in any 

criminal activity apart from a charge of larceny that was 

dismissed after he completed a pretrial diversion program. As a 

child, the defendant lived in a horrific, violent environment 

from which he could not extricate himself. He enjoyed a brief 

respite from his father's abuse of his mother when he was in the 

care of Uncle Eddie, but with Uncle Eddie's death, he lost that 

positive adult role model and became susceptible to Abrante's 

pernicious influence. By that time, the defendant was a 
20

teenager and had some ability to extricate himself from that 

environment, but could not leave his family permanently.9 The 

defendant is also someone of low intelligence with a diagnosis 

of posttraumatic stress disorder, depression, and attention 

deficit disorder.

We see no basis to conclude, on this record, that the 

defendant has the extraordinary individual characteristics that 

necessitate a longer parole eligibility period than that 

available for a juvenile murderer. Rather, as the Supreme Court 

emphasized in Miller, 567 U.S. at 478-479, the juvenile had 

mental health problems but no criminal history, and "if ever a 

pathological background might have contributed to [the]

commission of a crime, it is here." Based on the evidence 

adduced at trial and considered at the Miller hearing, we 

conclude that this case does not present extraordinary 

circumstances justifying incarcerating the defendant, prior to 

parole eligibility, longer than a juvenile convicted of murder.

Furthermore, we see no reason to remand this matter for a 

second Miller hearing at this point. The record before us is 

sufficient. The crime spree was vicious and comparable to 

 9 As noted above, the hearing judge was unable to resolve a 

dispute between the parties as to the defendant's reason for 

returning to Massachusetts from Maine. Absent any evidence 

clearly indicating, as the Commonwealth contended, that the 

defendant was motivated to follow Abrante into a life of crime, 

we give the defendant the benefit of the doubt on this point.
21

murder. But the Commonwealth will not be able to demonstrate 

that there is no reasonable possibility of rehabilitation within 

the probationary period provided to juvenile murderers given the 

defendant's lack of criminal history, his low intelligence and 

mental health problems, and his terrible upbringing. The 

defendant's sentence is therefore amended to conform his parole 

eligibility to that available to juveniles convicted of murder.10

Nothing we say today requires that the defendant receive a 

shorter aggregate sentence for his crimes. Those crimes, as 

detailed above, were serious and warrant serious punishment. 

Our Constitution requires, however, that a juvenile who commits 

only nonhomicide offenses be presumptively eligible for parole

no later than a juvenile convicted of murder, unless the 

Commonwealth proves that both the crimes themselves and the 

characteristics of the juvenile present extraordinary 

circumstances justifying harsher treatment. This the 

Commonwealth has not done. Moreover, as in Diatchenko, our 

decision does not mandate that the defendant be paroled once he 

has served the portion of his sentence prior to his being 

 10 Had we ordered a new sentencing hearing, both the 

defendant and the Commonwealth would have been permitted to 

present evidence concerning the defendant's conduct since his 

original sentencing. See Costa, 472 Mass. at 148-149 (in 

resentencing following invalidation of original sentence, judge 

may consider defendant's disciplinary record and other conduct 

since sentencing, "whether favorable or unfavorable, and whether 

offered by the defendant or by the Commonwealth").
22

eligible for parole. "At the appropriate time, it is the 

purview of the Massachusetts parole board to evaluate the 

circumstances surrounding the commission of the crime, including 

the age of the offender, together with all relevant information 

pertaining to the offender's character and actions during the 

intervening years since conviction." Diatchenko, 466 Mass. at 

674. The defendant, who was sentenced in 2002, has already 

served more than fifteen years of his sentence. Those years 

have presumably provided the defendant with the opportunity to 

demonstrate his own capacity for redemption and rehabilitation.

After making its evaluation, the parole board retains the power 

to allow or deny parole in the exercise of its own judgment.

Conclusion. The order denying the defendant's motion for 

resentencing is vacated, and the matter is remanded to the 

Superior Court for resentencing in accordance with this opinion.

So ordered.