Ayala v. Mass. Parole Bd.

98 Mass.App.Ct. 1114

157 N.E.3d 98 (Table)

Julio AYALA¹

v.MASSACHUSETTS PAROLE BOARD.

20-P-867

Appeals Court of Massachusetts.

Entered: October 20, 2020.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Julio Ayala appeals from a judgment of the Superior Court affirming a decision of the parole board (board) denying his petition for parole.³ He claims that the decision was arbitrary and capricious because the board failed to consider that due to his underlying medical condition (asthma ) he is at high risk for serious complications or death from COVID-19. We affirm.

Background. In October 2000, Ayala pleaded guilty to four counts of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B, and four counts of rape of child with force in violation of G. L. c. 265, § 22A. A judge of the Superior Court sentenced him to concurrent terms of five years to five years and one day in State prison on the four counts of indecent assault and battery and to concurrent terms of ten years of straight probation on the four counts of rape of a child with force, to run from and after his release from incarceration. Ayala completed his term of incarceration and was released on probation. He failed to register as a sex offender and he violated the conditions of his probation. Consequently, in 2011, he was sentenced to serve four to twenty years in State prison.

Ayala requested parole and appeared before the board on April 3, 2020. One of the grounds⁴ on which he sought release was his increased risk of serious illness or death from COVID-19 because of his asthma. The board denied parole stating that

"Subject denies crimes and refused to transfer to MTC to complete SOTP (Sex Offender Treatment Program). He has never completed all phases of SOTP in past. Did not present as forthright or willing to take responsibility. Serving sentence as a result of probation violation. Also incurred federal conviction for Failure to Register while in community. Does not meet legal standard."

Ayala then sought certiorari review pursuant to G. L. c. 249, § 4. He claimed that the board abused its discretion by failing to consider the increased risks to his health as a result of COVID-19. The parties filed cross motions for judgment on the pleadings. The judge affirmed the board's decision, concluding that the board was not required to consider the risk posed by COVID-19.⁵

Discussion. "We review de novo the allowance of a motion for judgment on the pleadings." Perullo v. Advisory Comm. on Personnel Standards, 476 Mass. 829, 834 (2017).

"[T]he standard of review for an action in the nature of certiorari depends on the nature of the action sought to be reviewed" (quotation and citation omitted). Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12, 31 (2015). "As the granting of parole is a discretionary function of the executive branch, generally the judiciary's role is limited to reviewing the constitutionality of the board's decision and proceedings." Deal v. Massachusetts Parole Bd., 484 Mass. 457, 460 (2020). "The board is afforded significant deference with regard to its parole decisions." Id. To the extent that parole decisions are subject to review by certiorari, we review to determine whether the board abused its discretion by acting arbitrarily and capriciously. See Diatchenko, supra.

Ayala argues that the board erred by failing to take into account his medical condition and the risk to his health from COVID-19 in its decision denying him parole. We disagree. Under G. L. c. 127, § 130, the board may grant parole when

"after consideration of a risk and needs assessment, ... there is a reasonable probability that, if the prisoner is released with appropriate conditions and community supervision, the prisoner will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society."

See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 452 (2020) (CPCS ), quoting 120 Code Mass. Regs. § 300.04 (2017) ("The parole board ‘shall only grant a parole permit if they are of the opinion that there is a reasonable probability that ... the offender will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society’ "). It is true, as Ayala argues, that the Supreme Judicial Court has said "it is ... appropriate for the parole board to consider the increased risk to the inmate, to fellow inmates, and to the general public of continuing custody in a prison where he or she is particularly vulnerable to an outbreak of COVID-19 given the close quarters and difficulties of social distancing in a prison." Foster v....