Commonwealth v. Brown

• Citation: 466 Mass. 676,1 N.E.3d 259
• Parties: COMMONWEALTH v. Marquise BROWN.
• Decision Date: 24 December 2013
• Court: United States State Supreme Judicial Court of Massachusetts

466 Mass. 676

1 N.E.3d 259

COMMONWEALTH

v.Marquise BROWN.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted Sept. 4, 2013.

Decided Dec. 24, 2013.

Limitation Recognized

M.G.L.A. c. 265, § 2

Michael A. Kaneb, Assistant District Attorney (Christopher M. Tarrant & Robert J. Bender, Assistant District Attorneys, with him) for the Commonwealth.

Barbara Kaban, Committee for Public Counsel Services, (James H. Budreau with her) for the defendant.

The following submitted briefs for amici curiae:

Marsha L. Levick, Emily C. Keller, & Lauren A. Fine, of Pennsylvania, for Juvenile Law Center & others.

Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District.

David J. Apfel & Kunal Pasricha, Boston, for American Civil Liberties Union of Massachusetts & others.

Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman, Boston, for Citizens for Juvenile Justice & others.

John J. Barter, Boston, for Herby J. Caillot.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

This case is before us on a reservation and report from a single justice. We must determine the effect of the United States Supreme Court's recent decision in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), on the sentencing of juvenile defendants ¹ convicted of murder in the first degree under G.L. c. 265, § 1.² In Miller, the Supreme Court held that the mandatory imposition of sentences of life without parole on homicide offenders who were juveniles at the time of their crimes violates the bar against cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Miller, 132 S.Ct. at 2469. Additionally, we held today in Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 655, 658–659, 1 N.E.3d 270 (2013), that all sentences of life without parole for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights. We now hold that Brown is entitled to the benefit of Miller and Diatchenko and that he may not be sentenced to life without parole. He may only be sentenced to the lesser punishment under G.L. c. 265, § 2, of mandatory life in prison with the possibility of parole set pursuant to the parole eligibility statute in effect at the time of Brown's crime, G.L. c. 127, § 133A, as amended through St. 2000, c. 159, § 230, providing for parole eligibility in fifteen years.

1. Background. In August, 2012, Marquise Brown was tried and convicted in the Superior Court of murder in the first degree for the killing of Tyriffe Lewis along with three related weapons charges. The murder took place on June 20, 2009, when Brown was seventeen years old. While Brown was awaiting trial, the United States Supreme Court decided Miller v. Alabama, 132 S.Ct. 2455, 132 S.Ct. 2455, 183 L.Ed.2d 407. In Miller, the Court held that mandatory sentences of life without parole for juvenile homicide offenders violate the cruel and unusual punishment clause of the Eighth Amendment. Id. at 2460. Under Miller, juvenile defendants convicted of homicide crimes may not be sentenced to life without parole unless the sentencing judge or jury is afforded an opportunity to consider the defendant's “youth and attendant characteristics” before determining that the defendant is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469, 2471.

Under the statutory sentencing scheme in Massachusetts, however, all defendants over the age of fourteen who are convicted of murder in the first degree must be sentenced to life without the possibility of parole.³ The sentence is mandatory. Consequently, after the jury returned its verdict in Brown's case, the trial judge stayed sentencing at the request of both parties to permit briefing on the effect of Miller on the sentencing of Brown. The Commonwealth then made a motion requesting that the Superior Court judge report questions of law to the Appeals Court under Mass. R.Crim. P. 34, as amended, 442 Mass. 1501 (2004), to clarify how Miller should be applied in Brown's case. The judge denied the Commonwealth's motion and in her order explained her planned sentencing approach. She first concluded that because the Legislature had not prescribed the procedures for the individualized sentencing hearing contemplated by Miller (a “ Miller hearing”), the sentence of life without parole could not be imposed on Brown at all. The judge then concluded that the appropriate approach would be to apply principles of severability to construe the sentencing statutes as if excising the provisions that would be unconstitutional as applied to a juvenile defendant. What remained of the statute, then, was the punishment typically imposed for murder in the second degree: life with the possibility of parole. According to the judge, the date of parole eligibility for Brown would be set based on the version of G.L. c. 127, § 133A, in effect at the time of Brown's crime, which would make Brown parole eligible in fifteen years. G.L. c. 127, § 133A.⁴

In response to the judge's order, the Commonwealth requested that sentencing again be stayed while it sought relief under G.L. c. 211, § 3. The judge granted the Commonwealth's request without opposition. The single justice reserved and reported this entire matter without questions to the full court, and Brown has yet to be sentenced.

2. Application of Miller and Diatchenko. The United States Supreme Court has held that new decisional law must be applied to criminal prosecutions that are not yet final when the decision is issued. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). See also Commonwealth v. Bray, 407 Mass. 296, 299, 553 N.E.2d 538 (1990). Brown's criminal conviction is not final and appealable under Massachusetts law because he has not yet been sentenced. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 621, 947 N.E.2d 9 (2011) (“In criminal cases, the final judgment is the sentence”); Commonwealth v. Das calakis, 246 Mass. 12, 19, 140 N.E. 470 (1923). Consequently, because Brown's criminal case was pending at the time the decision in Miller was issued, he is entitled to the benefit of Miller 's prohibition of mandatory sentences of life without parole for juveniles. Similarly, our decision today in Diatchenko also will apply to Brown's case. In Diatchenko we held that any sentence of life without parole for juveniles, whether mandatory or discretionary, violates art. 26. See Diatchenko, supra at 658–659, 1 N.E.3d 270. Thus, because Brown was a juvenile at the time of his crime, he may not be sentenced, whether automatically or after a sentencing hearing, to life without the possibility of parole. See Miller, 132 S.Ct. at 2460;Diatchenko, supra.

3. Sentencing. Following Brown's trial and conviction, the judge determined that Miller precluded applying to Brown the mandatory sentence of life without parole for murder in the first degree provided by G.L. c. 265, § 2. She further ruled that it would be improper for her to conduct a Miller hearing without guidance from the Legislature as to the specific contours of that proceeding.⁵ Because Miller requires such a hearing prior to the imposition of a sentence of life without parole, the judge also determined that the only appropriate sentence for Brown would be the less severe penalty of life with the possibility of parole that is commonly imposed for murder in the second degree. Thus, in order to give effect to the discernible intent of the Legislature, the judge planned to impose on Brown as much of the sentencing scheme set forth in G.L. c. 265, § 2, and G.L. c. 127, § 133A, as would be permissible in light of Miller 's prohibition against mandatory sentences of life without parole for juveniles.

We agree with this approach. The Legislature expressly has adopted the principle of severability of statutory provisions. G.L. c. 4, § 6, Eleventh, inserted by St. 1983, c. 210 (“The provisions of any statute shall be deemed severable, and if any part of any statute shall be adjudged unconstitutional or invalid, such judgment shall not affect other valid parts thereof”). This rule emerged at common law as a means of effectuating the Legislature's intent to the extent permitted by constitutional principles. See, e.g., Commonwealth v. Chou, 433 Mass. 229, 238, 741 N.E.2d 17 (2001); Lowell v. Kowalski, 380 Mass. 663, 670, 405 N.E.2d 135 (1980); Del Duca v. Town Adm'r of Methuen, 368 Mass. 1, 13, 329 N.E.2d 748 (1975). Additionally, our precedents establish that when a statutory provision is held unconstitutional, the valid portions of the statute should be preserved if the invalid provision is separable from the remainder of the statute. The unconstitutional provision is separable if the remaining provisions “stand alone,” meaning that those provisions are not so intertwined with the invalid provision that the Legislature could not reasonably have enacted the constitutional portions without those held unconstitutional. Peterson v. Commissioner of Revenue, 444 Mass. 128, 137–138, 825 N.E.2d 1029 (2005), quoting Boston Gas Co. v.Department of Pub. Utils., 387 Mass. 531, 540, 441 N.E.2d 746 (1982); Commonwealth v. Petranich, 183 Mass. 217, 220, 66 N.E. 807 (1903). Furthermore, we have recognized the general rule that where a statute is unconstitutional as applied to a particular class of cases, but not to other classes of cases, the statute may be preserved and held to apply only to those other classes so long as such a result appears to comport with the Legislature's general purposes. See Ferguson v. Commissioner of Corps. & Taxation, 316 Mass. 318, 322, 55 N.E.2d 618 (1944), quoting Harrison v. Commissioner of Corps. & Taxation, 272 Mass. 422, 426, 172 N.E. 605 (1930). See also 2 N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction §...