Commonwealth v. Rambert

96 Mass.App.Ct. 1112

139 N.E.3d 778 (Table)

COMMONWEALTH

v.Christopher RAMBERT.¹

18-P-1282

Appeals Court of Massachusetts.

Entered: December 10, 2019

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 1983, a Superior Court jury convicted the defendant, who was sixteen years old, of aggravated rape, armed robbery, and burglary. The defendant then pleaded guilty to several other offenses and was sentenced to serve concurrent terms of incarceration. Insofar as is pertinent here, eleven of the sentences were for terms of life and two were for thirty to forty years. Although the defendant was eligible for parole after serving fifteen years of his life sentences, he was not eligible for parole on the thirty- to forty-year sentences until 2001, after he had served eighteen years. Accordingly, the defendant appeared for hearings before the parole board in 2001, 2008, and 2013. Parole was denied each time. The defendant was scheduled to appear before the parole board again in January, 2018, but that hearing was postponed at the defendant's request.

In the meantime, the United States Supreme Court held that mandatory imposition of a sentence of life in prison, without the possibility for parole, on individuals who were under the age of eighteen at the time they committed murder is contrary to the prohibition against "cruel and unusual punishment" in the Eighth Amendment to the United States Constitution. Miller v. Alabama, 567 U.S. 460, 465 (2012). The following year, the Supreme Judicial Court held that such a sentence also constitutes cruel and unusual punishment under art. 26 of the Massachusetts Declaration of Rights. Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 658-659 (2013), S.C., 471 Mass. 12 (2015). Two years later, the Supreme Judicial Court decided that, for juveniles convicted of nonmurder offenses, a sentence with parole eligibility in excess of fifteen years is presumptively disproportionate under art. 26 because it is harsher than the sentence for juvenile murder defendants. Commonwealth v. Perez, 477 Mass. 677, 686 (2017) (Perez I ). The court held that the presumption of disproportionality is conclusive, absent a so-called Miller hearing³ to determine whether extraordinary circumstances warrant the harsher sentence. Perez I, supra at 686.

In 2018, the defendant filed a motion pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), for release from unlawful restraint ( rule 30 motion). The defendant claimed that his thirty- to forty-year sentences are presumptively disproportionate under Miller, Diatchenko, and Perez I, and he sought resentencing to a finite term. Alternatively, the defendant requested that the judge convene a Miller hearing in order to consider mitigating evidence that would counsel against imposing on the defendant two thirty- to forty-year sentences, with their associated minimums of eighteen years of time served before eligibility for parole. A judge of the Superior Court denied the defendant's rule 30 motion after concluding that the defendant has already received the only relief that a resentencing judge could order under Perez I: parole eligibility. The defendant timely appealed from this order and argues that the judge abused his discretion when he found that it would be an "academic exercise" to hold a Miller hearing. We affirm.

Standard of review. We review the denial of a rule 30 motion for an abuse of discretion or error of law. Commonwealth v. Perez, 480 Mass. 562, 567 (2018) (Perez II ). A judge's decision "constitutes an abuse of discretion where we conclude that the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Discussion. The constitutional infirmity presented by the sentence in Perez I was the presumptive disproportionality of a later parole eligibility date for a juvenile, like the defendant, who was not convicted of murder, without a hearing to determine whether the juvenile's "personal characteristics" necessitate the delay. Perez II, 480 Mass. at 571. The decision in Perez II turned on the court's conclusion in Diatchenko, 466 Mass. at 674, that art. 26 requires that juvenile offenders be afforded a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.⁴ Here, the judge concluded, correctly in our view, that "if the [defendant's rule 30 ] motion had been brought before the defendant had reached the time that he had become eligible for parole, as happened in [Perez I ], he would be entitled to resentencing, and could only be subject to a sentence that made him eligible for parole more than fifteen years after incarceration if the resentencing judge convened a Miller hearing and made the findings necessary to support such a sentence." However, the defendant has had several meaningful opportunities since 2001 (the year he became eligible for parole) to demonstrate to the parole board that he is eligible for release by virtue of his maturity and rehabilitation. This is all that art. 26 requires.

The defendant is not entitled to be resentenced, because "he was not improperly sentenced in the first instance, but only denied the chance to be considered for parole" after fifteen years. Diatchenko, 466 Mass. at 674. See Perez II, supra at 574. Although the judge did not have the benefit of the decision in Perez II because it issued one month after his order, he correctly concluded, based on the reasoning in Perez I and the circumstance of the defendant's...