Commonwealth v. Sharma

488 Mass. 85

171 N.E.3d 1076

COMMONWEALTH

v.Sunil SHARMA.

SJC-13035

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 2021.

Decided August 3, 2021.

Emma Quinn-Judge, Boston, for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Rebecca Rose, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

CYPHER, J.

On April 16, 1996, the defendant, Sunil Sharma, who was seventeen years old at the time,¹ shot and killed the victim at a restaurant in the Chinatown section of Boston. The defendant also shot and injured two other individuals. On April 28, 1999, the defendant pleaded guilty to murder in the second degree, G. L. c. 265, § 1 ; two counts of armed assault with intent to murder, G. L. c. 265, § 18 (b ) ; and one count of illegal possession of a firearm, G. L. c. 269, § 10 (a ). He was sentenced to life in prison with the possibility of parole for the murder conviction, and two sentences of from seven to ten years for the assaults to run concurrent to each other but consecutive to the life sentence.²

The defendant was paroled from his life sentence for murder on June 11, 2019, to serve his sentences on the remaining charges, pursuant to 120 Code Mass. Regs. § 200.08 (2017) (§ 200.08 ). He then moved to vacate the remaining sentences and for resentencing pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). The motion was denied by a Superior Court judge (motion judge), and the defendant appealed. Because § 200.08 distinguishes parole for life sentences from other sentences and is therefore invalid, see Dinkins v. Massachusetts Parole Bd., 486 Mass. 605, 610-614, 160 N.E.3d 613 (2021), and the defendant already has served the aggregate minimum of his sentences, we conclude that the defendant is entitled immediately to a parole hearing.

In regard to the legality of the defendant's sentences, we conclude that the motion judge failed to consider the specific circumstances and unique characteristics of the defendant as a juvenile. Accordingly, we remand for a hearing to consider whether the defendant's sentences comport with art. 26 of the Massachusetts Declaration of Rights and, if necessary, resentencing.³

Background. At the plea hearing, the defendant admitted to the following facts. On April 16, 1996, Kyung Shin, the victim, was eating dinner with friends at a restaurant in the Chinatown section of Boston. Two of the victim's friends, Rick Lee and Tuan Nguyen, were planning to meet the defendant and two of his friends at the restaurant that evening.

The defendant and his friends arrived at the restaurant around 8:30 P.M. Lee and one of the defendant's friends began to argue. During the argument, the defendant went outside to get a gun he had hidden under a car. The defendant brought the gun into the restaurant and fired the gun five times at Lee and Nguyen. Nguyen was shot in the hand and groin; Lee was shot in the back; and the victim, who was sitting behind Lee, was shot in the chest. The victim died from the piercing of her heart and lung by a bullet. The defendant and his friends fled from the restaurant.

The defendant was arrested a few months later in Detroit, Michigan, and was returned to Boston, where he confessed to the shooting. The defendant also took police to retrieve the murder weapon that he had thrown into a river in the East Boston neighborhood of Boston.⁴

On November 4, 2019, the defendant filed the motion at issue in this case for relief from unlawful confinement under Mass. R. Crim. P. 30 (a) (rule 30 [a]). The Commonwealth filed an opposition to the motion. On March 9, 2020, the motion judge denied the motion without a hearing, and the defendant filed a timely notice of appeal. We granted the defendant's application for direct appellate review.

Discussion. 1. Parole eligibility. We first address the defendant's parole eligibility in light of our decision in Dinkins, 486 Mass. at 610-611, 160 N.E.3d 613. General Laws c. 127, § 130, provides that once an inmate is granted parole, he or she "shall be allowed to go upon parole outside prison walls and inclosure upon such terms and conditions as the parole board shall prescribe." General Laws c. 127, § 133, requires the parole board to establish a single parole eligibility date when an inmate is serving two or more consecutive sentences. "Once an inmate has served the minimum term of his or her sentence, the inmate may be eligible for parole. See G. L. c. 127, § 133." Dinkins, supra at 609, 160 N.E.3d 613. When an inmate receives two or more consecutive sentences, the inmate's "parole eligibility date is calculated by aggregating the minimum parole eligibility dates for each component sentence and using the latest date as the parole eligibility date -- a process often referred to as ‘aggregation’ or the ‘aggregation rule.’ " Id. See 120 Code Mass. Regs. § 200.08(2).

In Dinkins, supra at 610-611, 160 N.E.3d 613, we held that 120 Code Mass. Regs. § 200.08(3)(c) (§ 200.08 [3][c]), which creates an exception to the aggregation rule resulting in multiple parole eligibility dates for individuals with sentences consecutive to a life sentence, contravenes the plain meaning of G. L. c. 127, §§ 130 and 133, and therefore is invalid. Section 200.08(3)(c) provides: "A sentence for a crime committed ... which is ordered to run consecutive to a life sentence shall not be aggregated with the life sentence for purposes of calculating parole eligibility on the consecutive sentence." We concluded, however, that inmates are entitled to a single parole eligibility date, even if one of their sentences is a life term. Dinkins, supra at 615-616, 160 N.E.3d 613. We recognized that to hold otherwise would result in inmates being paroled and released into confinement. Id. at 615, 160 N.E.3d 613.

Our decision in Dinkins, 486 Mass. at 615, 160 N.E.3d 613, was based in large part on the fact that the statutory purpose of parole is to determine whether a prisoner is rehabilitated and can be released without again breaking the law. See Henschel v. Commissioner of Correction, 368 Mass. 130, 136, 330 N.E.2d 480 (1975). To require more than one parole hearing "would make little sense, be wasteful of the board's limited time and resources, and create additional burdens on the inmates seeking parole." Dinkins, supra. Accordingly, the parole eligibility date for an inmate serving consecutive sentences should instead be calculated by aggregating the minimum parole eligibility dates for each sentence. Id.

The same regulation at issue in Dinkins resulted in the defendant in this case being paroled into prison. Under § 200.08(3)(c), the defendant became eligible for parole on his life sentence in 2011, but not eligible for parole on his nonhomicide sentences until seven years after he was paroled on his life sentence. On June 11, 2019, following his second parole hearing, the defendant was paroled from his life sentence after twenty-two years of incarceration to serve his on-and-after nonhomicide sentences. At that time, the parole determination only applied to his life sentence, despite the fact that the parole board (board) formed "the unanimous opinion that [the defendant] is rehabilitated and, therefore, merits parole at this time."

Applying our holding in Dinkins, 486 Mass. at 606, 160 N.E.3d 613, that the regulation at issue is "contrary to the plain terms of the statutory framework governing parole and thus is invalid," we conclude that the defendant is entitled immediately to a parole hearing. The defendant already has served the aggregate minimum of his sentences, twenty-two years. Provided nothing has changed since the defendant's last parole hearing, he should be parole eligible immediately.

2. Legality of the sentence. Although we conclude that the defendant is entitled to an immediate parole hearing, we separately analyze the legality of the defendant's sentence.

a. Standard of review. We review the judge's denial of a rule 30 (a) motion for abuse of discretion or error of law. Commonwealth v. Perez, 480 Mass. 562, 567, 106 N.E.3d 620 (2018) ( Perez II ). When reviewing claims of constitutional error, we accept the judge's factual findings absent clear error but independently review the application of constitutional principles. Id. at 567-568, 106 N.E.3d 620.

b. Proportionality. The defendant argues that his consecutive sentences for homicide and nonhomicide offenses are unconstitutionally disproportionate under the Eighth Amendment to the United States Constitution and art. 26. We resolve this issue under art. 26, which affords a defendant greater protections than the Eighth Amendment. See Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 668, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27, 27 N.E.3d 349 (2015). "The touchstone of art. 26 ’s proscription against cruel or unusual punishment ... [is] proportionality." Commonwealth v. Concepcion, 487 Mass. 77, 86, 164 N.E.3d 842 (2021), quoting Commonwealth v. Perez, 477 Mass. 677, 80 N.E.3d 967 (2017) ( Perez I ). "The essence of proportionality is that punishment for crime should be graduated and proportioned to both the offender and the offense" (citation and quotation omitted). Perez I, supra at 683, 80 N.E.3d 967. "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.’ " Commonwealth v. LaPlante, 482 Mass. 399, 403, 123 N.E.3d 759 (2019), quoting Cepulonis v. Commonwealth, 384 Mass. 495, 497, 427 N.E.2d 17 (1981). Because the Legislature has broad discretion in prescribing penalties for criminal offenses, the defendant has the burden of proving disproportionality. Cepulonis, supra.

We apply a three-pronged proportionality analysis. "To determine whether a sentence is disproportionate requires (1) an ‘inquiry into the...