Commonwealth v. Costa

• Decision Date: 09 July 2015
• Docket Number: SJC–11828.
• Citation: 472 Mass. 139,33 N.E.3d 412
• Parties: COMMONWEALTH v. Louis R. COSTA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 139

33 N.E.3d 412

COMMONWEALTH

v.Louis R. COSTA.

SJC–11828.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted May 5, 2015.

Decided July 9, 2015.

David J. Apfel (Katherine C. Sadeck with him), Boston, 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, Boston, for James Costello, amicus curiae, submitted a brief.

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

Opinion

LENK, J.

In Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012) (Miller ), the United States Supreme Court held that the 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, 1 N.E.3d 270 (2013) (Diatchenko ), S.C., 471 Mass. 12, 27 N.E.3d 349 (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, 1 N.E.3d 270.

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, 1 N.E.3d 270. 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, 1 N.E.3d 259 (2013) (Brown ), decided on the same day as Diatchenko, we determined that the proper remedy was to excise from the sentencing statute, when applied to juvenile offenders, the provision regarding parole ineligibility. Diatchenko, 466 Mass. at 673, 1 N.E.3d 270. Brown, 466 Mass. at 680–689, 1 N.E.3d 259. 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, 1 N.E.3d 270.

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 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, 605 N.E.2d 811 (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, 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, 693 N.E.2d 1007 (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 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 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. 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 ...