Commonwealth v. LaPlante , 482 Mass. 399 ( 2019 )

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SJC-12570
COMMONWEALTH vs. DANIEL J. LaPLANTE.
Suffolk. March 5, 2019. - June 6, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Homicide. Constitutional Law, Sentence, Cruel and unusual
punishment, Parole. Due Process of Law, Sentence, Parole.
Practice, Criminal, Sentence, Parole. Parole.
Indictments found and returned in the Superior Court
Department on January 12, 1988.
Following review by this court, 416 Mass. 433 (1993), a
motion to vacate sentence, filed on June 12, 2015, was heard by
Hélène Kazanjian, J.
A request for leave to appeal was allowed by Lowy, J., in
the Supreme Judicial Court for the county of Suffolk.
Merritt Schnipper for the defendant.
Crystal L. Lyons, Assistant District Attorney, for the
Commonwealth.
Benjamin H. Keehn & Afton M. Templin, Committee for Public
Counsel Services, for Committee for Public Counsel Services &
others, amici curiae, submitted a brief.
2
LOWY, J. At the age of seventeen, the defendant, Daniel J.
LaPlante, murdered a thirty-three year old pregnant mother,
Priscilla Gustafson, and her two young children, Abigail and
William Gustafson. The issue before us is whether the
defendant's sentence of three consecutive terms of life
imprisonment, with the possibility of parole after forty-five
years, constitutes cruel or unusual punishment in violation of
art. 26 of the Massachusetts Declaration of Rights. Because we
conclude that, on the specific facts of this case, the
defendant's sentence is within constitutional bounds, we affirm.
Background. 1. Facts. The facts we recite are drawn from
the Superior Court judge's sentencing memorandum, which the
parties have designated as their statement of agreed facts:1
"[The defendant] carefully planned [two] intrusions
into the Gustafson[s'] home; first breaking in on
November 16, 1987, and stealing items. While he could
have stopped there, he decided to return. He obtained
a gun and lied to his brother's friend in order to get
bullets. He practiced loading and unloading the guns.
On December 1, 1987, [the defendant] broke into the
Gustafson[s'] house for the second time, carrying the
loaded weapon. When he heard Priscilla Gustafson and
her [five year old] son William entering the house, he
said that his first thought was to jump out the
window. But he decided not to. He confronted them
with the gun, brought them to the bedroom, put William
in the closet and tied Priscilla to the bed. [The
defendant] said that after he tied Priscilla to the
1 Our opinion affirming the defendant's convictions on
direct appeal also contains a statement of the facts underlying
the defendant's crimes and the subsequent police investigation,
which we do not repeat here. See Commonwealth v. LaPlante, 416
Mass. 433, 433-439 (1993).
3
bed, his plan was to leave. But once again he decided
not to. Instead, he made the decision to rape her.
After raping her, he acknowledged that he could have
left. Instead, he decided he would kill her. After
he killed Priscilla, [the defendant] made the decision
to take William into the bathroom and drown him. As
he was leaving, he encountered [seven year old]
Abigail. He lured her into the bathroom and made the
decision to drown her as well. . . . After fleeing
the scene, [the defendant] went home, ate and then
attended his niece's birthday party as if nothing had
happened."
2. Sentencing and other posttrial proceedings. In 1988,
the defendant was convicted of three counts of murder in the
first degree and sentenced to three consecutive terms of life
imprisonment without the possibility of parole. This court
affirmed the convictions after plenary review. Commonwealth v.
LaPlante, 416 Mass. 433, 444 (1993).
In 2012, the United States Supreme Court held that the
prohibition on "cruel and unusual punishments" contained in the
Eighth Amendment to the United States Constitution forbids
mandatory sentences of life without parole for juvenile
offenders.2 Miller v. Alabama, 567 U.S. 460, 465 (2012). The
following year, this court held that Miller was retroactive to
cases on collateral review, and we determined that the
protections of art. 26 extend beyond the Eighth Amendment
protections outlined in Miller, such that art. 26 prohibits the
2 Throughout this opinion, the term "juvenile" offender
refers to an offender who was under the age of eighteen at the
time of the offense.
4
imposition of life sentences without the possibility for parole
-- whether such imposition is mandatory or discretionary -- on
juvenile offenders. Diatchenko v. District Attorney for the
Suffolk Dist., 466 Mass. 655, 658-659 (2013) (Diatchenko I),
S.C., 471 Mass. 12 (2015).
In a separate opinion issued the same day as Diatchenko I,
we noted that, going forward, the contours of a new sentencing
scheme for juvenile homicide offenders would be left to the
sound discretion of the Legislature. Commonwealth v. Brown, 466
Mass. 676, 691 n.11 (2013), S.C., 474 Mass. 576 (2016). We
emphasized, however, that any constitutional sentencing scheme
must "avoid imposing on juvenile defendants any term so lengthy
that it could be seen as the functional equivalent of a sentence
of life without parole." Id.
Under Diatchenko I, 466 Mass. at 673, the remedy for
juvenile homicide offenders such as the defendant, who had been
sentenced under statutory provisions since declared
unconstitutional, was to leave their life sentences in full
force and effect, but to hold that the statutory prohibition on
parole eligibility did not apply to them. Consequently, the
defendant's three consecutive life sentences were restructured
in accordance with applicable statutory provisions and parole
regulations, with the result that he would become eligible for
parole after serving forty-five years in prison.
5
The defendant subsequently filed a motion to vacate his
sentence. While that motion was pending, this court decided
Commonwealth v. Costa, 472 Mass. 139, 149 (2015), in which we
held that juvenile defendants who were sentenced to consecutive
terms of life imprisonment before our decision in Diatchenko I
were entitled to a resentencing hearing at which,
"in addition to the factors considered at any
sentencing, the judge should consider (a) the Miller
factors; (b) evidence regarding the defendant's
psychological state at the time of the offense; and
(c) evidence concerning the defendant's postsentencing
conduct, whether favorable or unfavorable."3
In light of Costa, the Commonwealth conceded that the defendant
was entitled to a resentencing hearing, and the motion judge
ordered that the defendant be resentenced.
3 We enumerated the "Miller factors" as follows:
"(1) the defendant's 'chronological age and its
hallmark features -- among them, immaturity,
impetuosity, and failure to appreciate risks and
consequences'; (2) 'the family and home environment
that surrounds' the defendant; (3) 'the circumstances
of the homicide offense, including the extent of [the
defendant's] participation in the conduct and the way
familial and peer pressures may have affected him' or
her; (4) whether the defendant 'might have been
charged and convicted of a lesser offense if not for
incompetencies associated with youth -- for example,
[the defendant's] inability to deal with police
officers or prosecutors (including on a plea
agreement) or [the defendant's] incapacity to assist
his [or her] own attorneys'; and (5) 'the possibility
of rehabilitation.'"
Commonwealth v. Costa, 472 Mass. 139, 147 (2015), quoting Miller
v. Alabama, 567 U.S. 460, 477-478 (2012).
6
Following a period for the parties to conduct discovery and
to obtain expert evaluations, an evidentiary hearing was held,
during which the Commonwealth offered the expert testimony of
Dr. Fabian M. Saleh and a number of exhibits were entered in
evidence. Based on the evidence presented, after considering
traditional sentencing factors as well as the additional factors
set forth in Miller and Costa, the sentencing judge reinstated
the sentence of three consecutive life terms with parole
eligibility after forty-five years.
The defendant filed a "gatekeeper" application with this
court pursuant to G. L. c. 278, § 33E, for leave to appeal from
the resentencing judge's ruling, as well as a motion for direct
entry of the appeal. The single justice directed entry of the
appeal on the question "whether a juvenile homicide offender may
be required to serve forty-five years in prison before his or
her first opportunity to seek release based on rehabilitation."
We limit our answer to this question to the specific facts of
this case, where the juvenile offender's resentencing occurs
when he is well into adulthood and follows a hearing at which
evidence is presented regarding the offender's postsentencing
conduct and prospects for rehabilitation.
Discussion. The defendant concedes that the Eighth
Amendment does not bar the sentence that he received and that
the evidence in this case supported the resentencing judge in
7
exercising her discretion to impose the most severe punishment
permitted under our State Constitution. Therefore, the sole
question before us is whether this defendant's sentence crosses
the line drawn by art. 26, which prohibits the imposition of
"cruel or unusual punishments."
"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."
Commonwealth v. Perez, 480 Mass. 562, 567-568 (2018) (Perez II),
quoting Commonwealth v. Villagran, 477 Mass. 711, 713 (2017).
However, we "review independently the application of
constitutional principles to the facts found." Perez II, supra,
quoting Villagran, supra.
The defendant invites this court to announce a bright-line
rule, a ceiling that no legislator or sentencing court
constitutionally may exceed in setting parole eligibility for a
juvenile homicide offender. We decline this invitation. We
also decline the Commonwealth's invitation to declare that where
each life sentence carries an individually permissible parole
eligibility period of fifteen years, the aggregate term to be
served before initial parole eligibility is not subject to a
proportionality analysis under art. 26. Cf. Commonwealth v.
8
Perez, 477 Mass. 677, 679 (2017) (Perez I) (analyzing
constitutionality under art. 26 of "aggregate time to be served
prior to parole eligibility" of juvenile nonhomicide offender).
Instead, the constitutionality of the defendant's sentence,
including the aggregate term to be served before parole
eligibility, is to be evaluated in light of the particular facts
presented.
"To reach the level of cruel and unusual, the punishment
must be so disproportionate to the crime that it 'shocks the
conscience and offends fundamental notions of human dignity.'"
Cepulonis v. Commonwealth, 384 Mass. 495, 497 (1981), quoting
Commonwealth v. Jackson, 369 Mass. 904, 910 (1976). We make
this determination by applying the three-prong
disproportionality test set forth in Cepulonis, supra at 497-
498. See Perez I, 477 Mass. at 684 (applying Cepulonis
disproportionality test in context of juvenile defendant's
challenge to constitutionality of his sentence).
The three prongs include (1) an "inquiry into the 'nature
of the offense and the offender in light of the degree of harm
to society'"; (2) "a comparison between the sentence imposed
here and punishments prescribed for the commission of more
serious crimes in the Commonwealth"; and (3) "a comparison of
the challenged penalty with the penalties prescribed for the
same offense in other jurisdictions" (citation omitted).
9
Cepulonis, 384 Mass. at 497-498. The burden of proving
disproportionality rests on the defendant. Id. at 497.4
Moreover, where, as here, the defendant, a juvenile
homicide offender, was originally sentenced before Miller and
Diatchenko I and has now been resentenced after the age of
forty, the resentencing must comply with the procedures set
forth by this court in Costa. The Costa inquiry includes
consideration of the Miller factors -- among them, the
"possibility of rehabilitation" -- as well as an assessment of
the defendant's postsentencing conduct, "whether favorable or
unfavorable." Costa, 472 Mass. at 147, 149, quoting Miller, 567
U.S. at 478.5
4 As noted above, the defendant concedes that the facts of
his case warrant the most severe punishment permitted under our
Constitution. As a result, this case defies direct application
of the second Cepulonis prong. The defendant simply does not
suggest that there are "more serious crimes" to which this
multiple homicide ought to be compared. And with respect to the
third Cepulonis prong, the defendant cannot point to any case
from outside this jurisdiction invalidating a forty-five year
period before parole eligibility where the defendant committed
three distinct and deliberate murders.
5 A resentencing proceeding under Costa differs from a
proceeding pursuant to a motion to revise or revoke a sentence
under Mass. R. Crim. P. 29, 378 Mass. 899 (1979). See Costa,
472 Mass. at 148 n.5. The consideration of these factors at a
Costa hearing does not violate the separation of powers. Id. at
149 n.6. Rather, here, as in Costa, "[t]he decision whether to
grant parole [will] remain within the parole board's
discretion." Id.
10
These same factors -- the Miller factors and an assessment
of the defendant's postsentencing conduct -- inform our analysis
of the constitutionality of the resulting sentence under art.
26. "Disproportionality is not . . . an abstract inquiry."
Perez I, 477 Mass. at 684.6 Rather, we must conduct a
proportionality analysis under art. 26 that takes into account
all of the facts and circumstances that were before the
resentencing judge at the Costa hearing.
In so doing, we remain mindful of 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." Perez I, 477 Mass. at 683, quoting
Diatchenko I, 466 Mass. at 671. That distinction formed the
basis for our holding in Diatchenko I that, under art. 26, all
juvenile homicide offenders "should be afforded a 'meaningful
opportunity to obtain release based on demonstrated maturity and
6For this reason, this case does not compel us to decide
whether the defendant's sentence would have been constitutional
if it had been imposed upon him at the age of eighteen, when he
was originally sentenced. Cf. Diatchenko v. District Attorney
for the Suffolk Dist., 466 Mass. 655, 670 (2013), S.C., 471
Mass. 12 (2015) (holding that "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" [emphasis added]).
11
rehabilitation.'" Diatchenko I, supra at 674, quoting Graham v.
Florida, 560 U.S. 48, 75 (2010).7
Here, the defendant will have the opportunity to appear
before the parole board after serving an aggregate term of
forty-five years. In Diatchenko I and Brown, we effectively
held constitutional the statutory default period of fifteen
years before parole eligibility for a juvenile offender
convicted of a single count of murder in the first degree, while
recognizing the discretion of the Legislature to adjust that
period going forward to distinguish among "lesser" and "more
severe" degrees of murder. Brown, 466 Mass. at 689 n.10, 690.
See Diatchenko I, 466 Mass. at 673-674. Then, in Commonwealth
v. Okoro, 471 Mass. 51, 62 (2015), we held constitutional that
same fifteen-year period for juvenile offenders convicted of
murder in the second degree. It stands to reason, therefore,
that the discretion to which we referred in Brown would permit
7 On appeal before this court, the defendant argues that our
analysis under art. 26 of the Massachusetts Declaration of
Rights also should proceed "mindful of" the "shortened life
expectancies" of juvenile offenders such as the defendant.
However, no evidence regarding the defendant's life expectancy -
- or the life expectancies of juvenile offenders in general --
was presented to the resentencing court, and the defendant
ultimately "does not contend" that our analysis in this case
should "turn on" such factors.
12
some period in excess of fifteen years before parole eligibility
for a juvenile offender convicted of murder in the first degree.8
Further, by remanding the case for resentencing in Costa,
this court confirmed that in cases involving multiple counts of
murder, sentencing judges retain the discretion to impose
consecutive terms of life imprisonment. We "emphatically did
not hold that Costa was entitled to be resentenced to concurrent
life terms to allow parole eligibility after fifteen years."
Perez I, 477 Mass. at 687.9
The question remains whether a period of forty-five years
of incarceration before parole eligibility is proportioned "to
both the offender and the offense" in this case, Diatchenko I,
466 Mass. at 669, quoting Miller, 567 U.S. at 469, given all the
evidence before the resentencing judge. We do not dwell long on
the facts of the defendant's offenses, which, as the defendant
8 In fact, we have since held that even juvenile nonhomicide
offenders may be sentenced to an aggregate period before parole
eligibility that exceeds fifteen years, where "extraordinary
circumstances" warrant such a sentence. See Commonwealth v.
Perez, 477 Mass. 677, 686 (2017) (Perez I).
9 Moreover, here, unlike in Perez I, we do not begin from
any presumption of disproportionality under art. 26. The
presumption in Perez I applies specifically to nonhomicide
offenders whose sentence would result in a period of
incarceration before parole eligibility that exceeds that
imposed on juveniles convicted of murder. Perez I, 477 Mass. at
686. See Commonwealth v. Lutskov, 480 Mass. 575, 583 (2018).
13
concedes, are so egregious as to warrant the most severe
punishment permissible under our Constitution.
With respect to the characteristics of the defendant, the
resentencing judge concluded that "the evidence submitted at the
hearing did not reflect that at the time of the murders he
displayed the 'hallmark features' of a juvenile, that is,
immaturity, impetuosity and failure to appreciate risks and
consequences." Rather, she found that the defendant "acted
deliberately and intentionally" when committing these "three
distinct and brutal murders" and that, in describing those
murders to Saleh as an adult, he displayed "an extraordinary
lack of empathy."
The resentencing judge further found that the defendant's
"family and home environment was . . . relatively unremarkable."
As to his psychological state, she credited the testimony of
Saleh that the defendant currently suffers from antisocial
personality disorder, which Saleh described as a "severe form of
a personality disorder with the hallmark[s] being the disregard
for the rights of others . . . [and] the lack of remorse."
Based on Saleh's testimony, the resentencing judge also found
that the murders of the victims "were a result of Conduct
Disorder, Child onset Type, rather than any adverse childhood
experiences, learning disabilities or immaturity." Ultimately,
the resentencing judge concluded that although the defendant has
14
"shown signs of improved behavior" in recent years, his
"prognosis for rehabilitation in the future is 'guarded.'"
Based on the record before us, we need go no further. The
defendant's sentence is proportional both to the crimes he
committed and to his particular characteristics as an offender,
giving due weight under art. 26 to the fact that he was a
juvenile when he committed the crimes.
Conclusion. For these reasons, we conclude that the
sentence imposed on the defendant by the resentencing judge does
not violate art. 26 and therefore affirm her resentencing
decision.
So ordered.