Commonwealth v. Costa

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SJC-11828
COMMONWEALTH vs. LOUIS R. COSTA.
Suffolk. May 5, 2015. - July 9, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Constitutional Law, Sentence, Cruel and unusual punishment,
Parole. Due Process of Law, Sentence, Parole. Parole.
Homicide. Practice, Criminal, Sentence, Parole, Capital
case.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on November 28, 2014.
The case reported by Hines, J.
David J. Apfel (Katherine C. Sadeck with him) for the
defendant.
John P. Zanini, Assistant District Attorney, for the
Commonwealth.
Benjamin H. Keehn, Committee for Public Counsel Services,
for Committee for Public Counsel Services & another, amici
curiae, submitted a brief.
John H. Cunha, Jr., & Charles Allan Hope, for James
Costello, amicus curiae, submitted a brief.
LENK, J. In Miller v. Alabama, 132 S. Ct. 2455, 2460
(2012) (Miller), the United States Supreme Court held that the
2
imposition of mandatory life sentences without the possibility
of parole on individuals who were under the age of eighteen at
the time of their crimes (juvenile offenders) violates the
Eighth Amendment to the United States Constitution's prohibition
on "cruel and unusual punishments." Approximately one year
later, in Diatchenko v. District Attorney for the Suffolk Dist.,
466 Mass. 655, 666 (2013) (Diatchenko), S.C., 471 Mass. 12(2015), this court held that Miller applies retroactively to
cases on collateral appeal. We also went beyond the Court's
holding in Miller and determined that art. 26 of the
Massachusetts Declaration of Rights, which prohibits "cruel or
unusual punishments," bars even the discretionary imposition of
a sentence of life without the possibility of parole on juvenile
offenders. Id. at 671.
Prior to our decision in Diatchenko, juvenile offenders
convicted of murder in the first degree in the Commonwealth
received mandatory sentences of life without the possibility of
parole, like adult offenders convicted of the same offense. Id.
at 667. Our decision in Diatchenko invalidated the sentences of
all juvenile offenders sentenced under that sentencing scheme,
to the extent to which those sentences rendered the offenders
ineligible for parole. Id. In Diatchenko and Commonwealth v.
Brown, 466 Mass. 676 (2013) (Brown), decided on the same day as
Diatchenko, we determined that the proper remedy was to excise
3
from the sentencing statute, when applied to juvenile offenders,
the provision regarding parole ineligibility. Diatchenko, 466
Mass. at 673. Brown, 466 Mass. at 680-689. As a result, a
sentencing statute prescribing life without the possibility of
parole in effect became a statute prescribing, for juvenile
offenders, life with the possibility of parole after fifteen
years. Diatchenko, 466 Mass. at 673-674.
This case calls upon us to determine the effect of
Diatchenko and Brown on the sentences of juvenile offenders who,
unlike the defendants in those cases, were sentenced to multiple
consecutive sentences of life without the possibility of parole
prior to those decisions. The defendant was convicted of two
counts of murder in the first degree, and was sentenced in 1994
to two consecutive sentences of life without the possibility of
parole. At the time of his sentencing, the distinction between
consecutive and concurrent sentences had little practical
impact. Our decisions in Diatchenko and Brown changed that. If
the defendant's sentences are modified in light of Diatchenko
and Brown but remain consecutive, he will be eligible for parole
after thirty years (the aggregate of two minimum terms of life
with eligibility for parole after fifteen years). If his
sentences are rendered concurrent, he will be eligible for
parole after fifteen years; because he has already served
approximately twenty-eight years, he would be eligible for
4
parole immediately. We conclude that a trial court judge, in
resentencing a juvenile offender originally sentenced to
multiple consecutive terms of life without the possibility of
parole, may conduct a sentencing hearing to consider
resentencing the juvenile offender to concurrent terms.1
1. Background. The defendant's two murder convictions
stem from his role in the shooting deaths of two individuals in
a public park on a February evening in Boston in 1986. At the
time, the defendant was sixteen years old. He participated in
the shooting with two other individuals, who were then adults.
The defendant initially was charged as a juvenile. The
case was then transferred to the Superior Court. The defendant
was tried alongside an adult codefendant and convicted on both
indictments. This court, concluding that the defendant's right
under the Sixth Amendment to the United States Constitution to
confront a witness against him had been violated, vacated the
convictions and remanded for a new trial. See Commonwealth v.
DiBenedetto, 414 Mass. 37, 39 (1992). The defendant's second
trial occurred in 1994. The defendant again was tried alongside
an adult codefendant, and both were convicted of two counts of
murder in the first degree. The jury's verdict, however,
1
We acknowledge the amicus briefs submitted on behalf of
the defendant by the Committee for Public Counsel Services and
the Child Advocate of the Commonwealth of Massachusetts, and by
James Costello.
5
distinguished between the defendant and his codefendant. While
the codefendant was found guilty of the murders based on both a
premeditation theory and an extreme atrocity or cruelty theory,
the defendant was convicted only as a joint venturer on the
deliberate premeditation theory. This court affirmed the
convictions. See Commonwealth v. DiBenedetto, 427 Mass. 414,
416 (1998).
Pursuant to the then-applicable sentencing statutes, the
defendant was sentenced to two terms of life without the
possibility of parole. At the defendant's sentencing hearing,
the Commonwealth urged, based on "the nature . . . of the crimes
committed," that the defendant's sentences be imposed
consecutively. Defense counsel, citing the defendant's "youth
at the time these offenses took place" and his capacity for
rehabilitation, urged that the sentences be imposed
concurrently. The sentencing judge suggested that the
difference between a consecutive and concurrent sentence was
"somewhat symbolic," in light of the mandatory sentence of life
without the possibility of parole. Defense counsel countered
that whether the sentences were imposed consecutively or
concurrently could have an impact on the defendant's treatment
while incarcerated. Ultimately, the sentencing judge, noting
that the evidence showed that "the actions here were tantamount
to execution by firing squad," concluded that consecutive
6
sentences of life without the possibility of parole were
appropriate.
In the wake of this court's decisions in Diatchenko and
Brown, the defendant moved for resentencing under Mass. R. Crim.
P. 30 (a), as appearing in 435 Mass. 1501 (2001). A different
judge of the Superior Court (the original sentencing judge
having retired) concluded that, in light of those decisions,
each of the defendant's original sentences of life without the
possibility of parole should be converted into a sentence of
life with parole eligibility after a minimum term of fifteen
years. The judge also determined that the original sentencing
judge "likely would not have considered the impact of adolescent
brain development in . . . determining whether to impose
concurrent sentences or consecutive life sentences for the
crimes [of] which the defendant was convicted," given the
"emerging" character of the research. The judge accordingly
concluded that the defendant was entitled to a resentencing
proceeding on the issue whether the sentences should be imposed
consecutively or concurrently.
The judge outlined several aspects of the evidentiary
hearing that his decision contemplated. He indicated that he
did not see a need for general testimony regarding scientific
research into adolescent cognition and brain development, noting
that the basic insights derived from such research are already
7
well established in the case law. Without circumscribing the
admissible evidence he would consider, the judge indicated that
it might be appropriate to consider specific testimony
concerning the defendant's "level of cognition at the time of
the commission of this crime," and suggested that the defendant
might offer evidence regarding the psychological examinations
conducted prior to the hearing regarding the defendant's
transfer from the Juvenile Court to the Superior Court.
The Commonwealth petitioned a single justice of the county
court for relief pursuant to G. L. c. 211, § 3, arguing that the
judge's order "improperly intrudes upon the lawful sentences
previously imposed upon th[e] defendant." The single justice
reserved and reported the case, observing that the case "raises
the important and novel question, not specifically addressed in
Diatchenko or Brown, whether: (1) a trial court judge in
imposing a sentence in accordance with and pursuant to
Diatchenko and Brown, may amend that aspect of the original
sentence that imposed consecutive life sentences to impose
concurrent life sentences . . . and, (2) if so, what shall be
the nature of the proceeding required to make that
determination."2
2
The parties do not dispute that our "general
superintendence" power under G. L. c. 211, § 3, allows us to
review the judge's order granting the defendant's motion for a
hearing. Additionally, "[w]here . . . the single justice has,
8
2. Discussion. a. Power to amend the original sentence
under Mass R. Crim. P. 30 (a). Rule 30 (a) of the Massachusetts
Rules of Criminal Procedure provides: "Any person who is
imprisoned or whose liberty is restrained pursuant to a criminal
conviction may at any time, as of right, file a written motion
requesting the trial judge to release him or her or to correct
the sentence then being served upon the ground that the
confinement or restraint was imposed in violation of the
Constitution or laws of the United States or of the Commonwealth
of Massachusetts." The defendant's original sentence of life
without the possibility of parole is contrary both to the Eighth
Amendment, as construed in Miller, and to art. 26, as construed
in Diatchenko and Brown. Because Miller has retroactive effect
on cases on collateral appeal, the judge has the power under
rule 30 (a) to correct the unconstitutional sentence originally
imposed. See Diatchenko, 466 Mass. 661-667.
When an appellate court determines that one component of an
integrated sentencing package is illegal, the court generally
vacates the sentence in its entirety, while leaving the
underlying convictions intact, and remands for resentencing.
See Commonwealth v. Parrillo, 468 Mass. 318, 321 (2014);
in [her] discretion, reserved and reported the case to the full
court, we grant full appellate review of the issues reported."
Matter of a Grand Jury Investigation, 470 Mass. 399, 402 n.4
(2015), quoting Martin v. Commonwealth, 451 Mass. 113, 117
(2008).
9
Commonwealth v. Cumming, 466 Mass. 467, 471 (2013); Commonwealth
v. Talbot, 444 Mass. 586, 597-598 (2005). In Commonwealth v.
Renderos, 440 Mass. 422, 423 (2003), for instance, the defendant
was convicted of two counts of indecent assault and battery on a
person who had attained fourteen years of age, and was sentenced
to a suspended two-year sentence and to a lifetime term of
community parole supervision. We determined the lifetime
community parole supervision portion of the sentence was
contrary to law. Id. at 434. We then vacated the defendant's
entire sentence and remanded for resentencing. Id. at 435. We
explained that "[t]he judge's belief that lifetime community
parole supervision could be imposed influenced his decision as
to the appropriate punishment for the defendant's two
convictions." Id. As a result, "[t]he sentences imposed
constituted an integrated package, each piece dependent on the
other, which cannot be separated." Id.
Here, similarly, based on the sentencing laws in place at
the time the judge imposed the sentence, the judge believed that
the practical consequences of the decision to impose consecutive
rather than concurrent sentences would be limited to the
defendant's treatment while incarcerated for life. This court's
decisions in Diatchenko and Brown transformed a choice that
could be regarded as "somewhat symbolic" into one of some
consequence, since a consecutive sentence doubles the amount of
10
time the defendant must serve before he becomes eligible for
parole. The judge, in imposing consecutive sentences, could not
have known that his decision would have that effect. He also
could not have known of the reasoning underlying our decisions
in Diatchenko and Brown. Those decisions were based on "current
scientific research on adolescent brain development" that led us
to conclude that juvenile offenders are "constitutionally
different from adults for sentencing purposes." Diatchenko, 466
Mass. at 669-670, quoting Miller, 132 S. Ct. at 2465. We cannot
know that the judge would have imposed consecutive sentences had
he known about the effect that decision would ultimately have,
or had he known about the constitutional differences that
separate juvenile offenders from adults. Accordingly, we
conclude that resentencing is appropriate under these
circumstances.
Our decision is not contrary to Diatchenko. There, we
rejected the defendant's argument that he was "entitled to be
resentenced," concluding that "he was not improperly sentenced
in the first instance, but only was denied the chance to be
considered for parole." Diatchenko, 466 Mass. at 674. The
defendant in Diatchenko, however, had been convicted of a single
count of murder in the first degree, which carried a statutorily
mandated sentence of life without the possibility of parole.
Id. at 656. Because we remedied that unconstitutional
11
sentencing statute by excising the parole ineligibility
provision, while leaving the rest of the statute to stand,
moreover, our decision simply transformed one statutorily
mandated sentence (life without the possibility of parole) into
another statutorily mandated sentence (life with the possibility
of parole after fifteen years). In contrast to cases like
Commonwealth v. Renderos, 440 Mass. at 435, where the original
sentencing judge exercised a degree of discretion in structuring
an "appropriate punishment," therefore, in Diatchenko neither
the old nor the new sentence left a sentencing judge any
discretion. As a result, a resentencing proceeding would serve
no purpose. See Diatchenko, supra. Instead, the defendant,
already having served thirty-one years, was "eligible to be
considered for parole immediately" and could apply directly "to
the Massachusetts parole board for a hearing that shall afford
him a meaningful opportunity to obtain release." Id.
While this case involves the same mandatory sentencing
scheme at issue in Diatchenko, the original sentencing judge did
exercise discretion in deciding to impose consecutive rather
concurrent sentences. See Commonwealth v. Lykus, 406 Mass. 135,
145 (1989). That decision, moreover, determines whether the
defendant is immediately eligible for parole or must wait an
additional two years. The circumstances that rendered a
resentencing proceeding before a trial court judge unnecessary
12
in Diatchenko, therefore, do not exist here. Hence, in
accordance with our general approach where one aspect of an
integrated sentence has been deemed illegal, resentencing is
appropriate on both convictions.
Our conclusion, resting as it does on our general approach
to resentencing rather than on constitutional grounds, has no
impact on the current sentencing scheme for juvenile offenders
convicted of murder in the first degree. Our decisions in
Diatchenko and Brown resulted in a situation in which the
sentencing scheme for juvenile offenders convicted of murder in
the first degree was effectively identical to that for juvenile
offenders convicted of murder in the second degree. See Brown,
466 Mass. at 689-691. The Legislature responded to that
situation by providing specific penalties 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
13
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.
The new sentencing scheme, therefore, allows (and, in the
case of convictions of murder in the first degree based on
extreme atrocity or cruelty, demands) the imposition on a
juvenile offender convicted of murder in the first degree of a
sentence of life with eligibility for parole after thirty years.
The defendant, however, was not sentenced under the new
sentencing statute. Instead, he was sentenced under the old
sentencing statute. Because our decisions in Diatchenko and
Brown struck the parole ineligibility provision from that
statute when applied to juvenile offenders, the result was that
the defendant was sentenced under a statute that required a
sentence of life with parole eligibility after fifteen years.
The thirty-year time frame until the defendant becomes eligible
for parole results from the judge's discretionary decision to
impose consecutive sentences. The defendant, moreover, does not
base his argument that resentencing is appropriate on the
contention that a sentence of life with parole eligibility after
thirty years is the "functional equivalent of a sentence of life
14
without parole." Brown, 466 Mass. at 691 n.11.3 Instead, the
defendant merely argues that, because his sentence of life with
parole eligibility after thirty years derives from the judge's
decision to impose consecutive sentences, and because the
sentencing judge could not have understood that his decision
would have that effect, resentencing is appropriate. We agree
with that reasoning. Our conclusion that resentencing is proper
in this case thus does not rest on a constitutional
determination that a sentence of life with parole eligibility in
thirty years is the functional equivalent of life without the
possibility of parole. Our decision has no impact on the
current sentencing scheme for juvenile offenders convicted of
murder in the first degree. The constitutionality of that
scheme is not before us.4
3
Cf. Casiano v. Commissioner of Correction, 317 Conn. 52(2015) (concluding that "the imposition of a fifty-year sentence
without the possibility of parole is subject to the sentencing
procedures set forth in Miller"); State v. Null, 836 N.W.2d 41,
71 (Iowa 2013) (determining 52.5-year sentence was "sufficient
to trigger Miller-type protections"); Bear Cloud v. State, 334
P.3d 132, 136, 142 (Wyo. 2014) (sentence of forty-five years
until parole eligibility sufficient to constitute functional
equivalent of life without possibility of parole); United States
Sentencing Commission Final Quarterly Data Report, at 32 (Fiscal
Year 2013) (equating sentence of 470 months [39.17 years] to
life sentence).
4
There is no merit to the Commonwealth's argument that
resentencing is unnecessary because this court already reviewed
"the whole case" on both "the law and the evidence" under G. L.
c. 278, § 33E, and affirmed the imposition of consecutive
sentences. See Commonwealth v. DiBenedetto, 427 Mass. 414, 416
15
b. Nature of the proceeding. Having determined that a
trial court judge may hold a resentencing hearing in these
circumstances, we now address the factors to be considered at
such a hearing. Generally, "in the exercise of her sentencing
discretion, [a] judge may consider a variety of factors
including the defendant's behavior, family life, employment
history, and civic contributions, as well as societal goals of
'punishment, deterrence, protection of the public, and
rehabilitation.'" Commonwealth v. Donohue, 452 Mass. 256, 264
(2008), quoting Commonwealth v. Power, 420 Mass. 410, 414
(1995), cert. denied, 516 U.S. 1042 (1996). In resentencing a
juvenile offender originally sentenced to life without the
possibility of parole, a judge properly may consider these
factors. We identify three additional factors that a judge
conducting such a resentencing should consider.
First, in Miller, the United States Supreme Court
identified a number of factors (Miller factors) that sentencing
judges must consider in making the individualized determination
(1998). This court also affirmed the mandatory imposition of a
sentence of life without the possibility of parole, although
that decision is plainly contrary to the United States Supreme
Court's decision in Miller v. Alabama, 132 S. Ct. 2455, 2460
(2012) (Miller), which we already determined to have retroactive
effect. "Miller broke new ground and did not merely apply an
established constitutional standard to a novel set of facts."
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 663 (2013), S.C., 471 Mass. 12 (2015). The decision,
therefore, rendered invalid sentences previously affirmed by
this court after review under G. L. c. 278, § 33E.
16
whether a juvenile offender should receive a sentence of life
without the possibility of parole: (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." Miller, 132 S. Ct. at 2468.
Because these factors relate to the societal goals of
punishment, deterrence, protection of the public, and
rehabilitation, see Commonwealth v. Power, 420 Mass. at 414, we
believe that a judge should consider the Miller factors when
conducting a resentencing hearing of a juvenile offender
originally sentenced to multiple consecutive sentences of life
without parole.
Second, this court's decisions in Diatchenko and Brown,
like the United States Supreme Court's decision in Miller, were
17
based on "current scientific research on adolescent brain
development." Diatchenko, 466 Mass. at 669. That research led
us to conclude 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." Id. at 670. In conducting the resentencing hearing,
then, the judge appropriately may consider evidence concerning
the defendant's then-extant psychological characteristics in the
process of assessing the Miller factors.
Third, "in resentencing following the invalidation of a
sentence (where the underlying conviction has not been vacated),
the resentencing judge has authority to consider favorable
information about [a] defendant's good conduct subsequent to his
[or her] original sentencing," as well as "information presented
by the Commonwealth concerning a defendant's unfavorable conduct
occurring subsequent to his [or her] original sentencing
hearing." Commonwealth v. White, 436 Mass. 340, 344-345 (2002).5
5
In this regard, a resentencing proceeding under Mass. R.
Crim. P. 30, as appearing in 435 Mass. 1501 (2001), differs from
a revocation and revision proceeding under Mass. R. Crim. P. 29,
378 Mass. 899 (1979). Rule 29 allows a trial judge, within a
limited period of time after the imposition of a sentence, to
"revise or revoke such sentence if it appears that justice may
not have been done." Rule 29 applies to lawful sentences; its
purpose is "to permit a judge to reconsider the sentence he [or
she] has imposed and determine, in light of the facts as they
existed at the time of sentencing, whether the sentence was
18
Here, the defendant wishes to offer at a resentencing hearing
evidence that he has maintained a perfect disciplinary record
since his sentencing in 1994, that he has earned a college
degree while incarcerated, and that he has founded and led the
Restorative Justice Program, which seeks to foster
reconciliation between prisoners and their victims' families.
The defendant contends that this record of accomplishment is all
the more compelling given that, for most of the time he has been
incarcerated, he had no hope of ever receiving parole. We agree
that information concerning the defendant's postsentencing
conduct, whether favorable or unfavorable, and whether offered
by the defendant or by the Commonwealth, properly may be
presented and considered at the resentencing hearing.6
just." Commonwealth v. Layne, 386 Mass. 291, 295 (1982). See
Commonwealth v. Sitko, 372 Mass. 305, 314 (1977). The rule
contains strict time limits because "the passage of time from
the date of sentencing" makes it "increasingly difficult for a
trial judge to make the determination called for by the rule
without improperly considering postsentencing events."
Commonwealth v. Layne, supra at 295-296. Rule 30, by contrast,
permits a motion to be made "at any time," but requires that the
person bringing the motion be restrained or confined unlawfully.
6
Contrary to the Commonwealth's contention, consideration
of postsentencing conduct does not violate the separation of
powers by encroaching on the parole board's executive function.
A judge may not allow a motion to alter a sentence in order to
"nullify the discretionary actions of the parole board."
Commonwealth v. Amirault, 415 Mass. 112, 117 (1993). Here,
however, the resentencing proceeding merely will determine how
many years the defendant must serve before becoming eligible for
parole. The decision whether to grant parole would remain
within the parole board's discretion.
19
3. Conclusion. A trial court judge, in resentencing a
defendant who was under the age of eighteen at the time of his
or her crime under Mass. R. Crim. P. 30 (a) and this court's
decisions in Diatchenko and Brown, may amend that aspect of the
original sentence that imposed consecutive life sentences to
impose instead concurrent life sentences. At the resentencing
proceeding, 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.
The matter is remanded to the county court for entry of a
judgment denying the Commonwealth's petition for relief under
G. L. c. 211, § 3.
So ordered.