Commonwealth v. Lutskov

• Decision Date: 14 September 2018
• Docket Number: SJC-12411
• Citation: 106 N.E.3d 632,480 Mass. 575
• Parties: COMMONWEALTH v. Maksim LUTSKOV.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

480 Mass. 575

106 N.E.3d 632

COMMONWEALTH

v.Maksim LUTSKOV.

SJC-12411

Supreme Judicial Court of Massachusetts, Hampden..

Argued March 5, 2018

Decided September 14, 2018.

Merritt Schnipper, for the defendant.

David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

Barbara Kaban, for Youth Advocacy Division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief.

Meredith Shih, for Boston Bar Association, amicus curiae, submitted a brief.

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

LOWY, J.

The defendant, Maksim Lustkov, was sixteen years old in October, 1999, when he committed an armed home invasion during which he shot one occupant three times in front of the occupant's teenage daughter. A Juvenile Court jury adjudicated the defendant a youthful offender on indictments charging armed home invasion and various related offenses, and he was sentenced to a mandatory minimum State prison term of from twenty years to twenty years and one day.¹

In 2016, after our decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27 N.E.3d 349 (2015), the defendant filed a motion for relief from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), arguing that all mandatory minimum sentences violate art. 26 of the Massachusetts Declaration of Rights when applied to juveniles. He also argued that the evidence was insufficient to sustain his adjudication as a youthful offender, and that the judge incorrectly instructed the jury on the issue. A Juvenile Court judge denied the motion, and we granted the defendant's application for direct appellate review.

On appeal, the defendant primarily argues that in light of this court's decision in Commonwealth v. Perez, 477 Mass. 677, 80 N.E.3d 967 (2017) ( Perez I ), his mandatory twenty-year minimum sentence is presumptively disproportionate because it imposes a longer period of incarceration prior to eligibility for parole than that applicable to a juvenile convicted of murder without a finding of extraordinary circumstances based on consideration of the factors articulated in Miller v. Alabama, 567 U.S. 460, 477-478, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ( Miller ). He further argues that our reasoning in Perez I applies with equal force to invalidate all mandatory minimum sentences when applied to juveniles.

For the reasons that follow, we conclude that the evidence was sufficient to sustain the defendant's adjudication as a youthful offender and, although we agree that the judge failed to instruct the jury that they were required to find the defendant's qualifying age in order to adjudicate him a youthful offender, this error does not require reversal. As to the constitutionality of the defendant's sentence, we agree that the defendant's sentence violates the proportionality requirement inherent in art. 26. Our decision in Perez I, 477 Mass. at 686, 80 N.E.3d 967, requires sentencing judges to follow an individualized process that allows for the consideration of mitigating circumstances related to the juvenile's age and youthful characteristics before imposing a sentence with a longer period of incarceration prior to eligibility for parole than that applicable to a juvenile convicted of murder. The defendant was sentenced to a mandatory minimum term exceeding that applicable to a juvenile convicted of murder without a Miller hearing in violation of the requirements announced in Perez I, and refined in Commonwealth v. Perez, 480 Mass. (2018) (Perez II ), also decided today. Accordingly, we remand the case to the Juvenile Court for resentencing.²

Background. 1. Facts. We summarize the facts relevant to the present appeal in the light most favorable to the Commonwealth, reserving certain details for later discussion. At approximately 8:30 P.M. on October 31, 1999, Fulia Aiken heard a knock at the door of the house where she lived with her father, Amhet Aiken.³ Fulia opened the door and the defendant, who was armed with a firearm and accompanied by two accomplices, forced his way inside. All three individuals were wearing masks. Ahmet, in response to his daughter's screams, came downstairs and a struggle ensued. During the struggle, Ahmet knocked off the defendant's mask and the defendant shot Ahmet three times. The defendant and his accomplices fled, leaving behind the mask that Ahmet had knocked off the defendant's face.

2. Trial. During its direct case at trial, the Commonwealth offered evidence of the defendant's age through two witnesses. A Springfield police detective testified that a fingerprint lifted from the mask left at the Aikens' house was identical to the defendant's left thumbprint, and a fingerprint card bearing the defendant's name and date of birth ("02/06/83") was admitted in evidence. Fulia also testified that the intruders appeared to be "kids ... [a]bout sixteen, seventeen, eighteen [at] the most." At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on all charges, which the judge denied. After the Commonwealth rested, the defendant offered medical records and testimony from his physician establishing that he was sixteen years old on the date of the offenses. The defendant was adjudicated a youthful offender pursuant to G. L. c. 119, § 54, on all charges.

3. Sentencing. At the sentencing hearing, the Commonwealth recommended a sentence of from thirty to forty years in State prison on the home invasion charge, and a combination of concurrent and from-and-after sentences on the remaining counts. Pursuant to G. L. c. 119, § 58, as amended through St. 1996, c. 200, § 5, the defendant requested a sentence of commitment to the Department of Youth Services (DYS) until age twenty-one, and thereafter a commitment to State prison for a term of from five to seven years.

The judge did not follow the defendant's sentence recommendation. She explained that armed home invasion carried a mandatory minimum sentence and, although a split sentence with commitment to DYS was an available option, such a disposition was not appropriate considering the defendant's age at the time of sentencing (almost nineteen years old), public safety concerns, and the violent nature of the offenses. The judge sentenced the defendant to from twenty years to twenty years and one day in State prison on the armed home invasion charge.

4. Posttrial proceedings. In August, 2013, after serving one-half of his committed sentence, the defendant filed, pro se, a motion for relief from unlawful restraint and for a new trial pursuant to Mass. R. Crim. P. 30 (a) and (b), as appearing in 435 Mass. 1501 (2001), claiming ineffective assistance of counsel. The defendant primarily argued that he was entitled to resentencing in light of the United States Supreme Court's decision in Miller. The trial judge denied the motion, and the defendant did not appeal.

In November, 2016, the defendant, represented by counsel, filed his second motion for relief from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a). He argued that art. 26 prohibited the automatic application of any mandatory minimum sentence for a juvenile defendant. He also argued that the Commonwealth presented insufficient evidence that he was between fourteen and seventeen years of age at the time of the crimes, and that the trial judge failed to instruct the jury that they were required to find the defendant's age within this range in order to adjudicate him a youthful offender. A different judge of the Juvenile Court (the trial judge having retired) denied the motion, concluding that the defendant's failure to raise either argument at trial, on direct appeal, or in his first rule 30 motion constituted waiver. After finding the defendant's arguments waived, the judge nonetheless went on to consider whether any of the claimed errors would give rise to a miscarriage of justice. The judge agreed that the jury heard insufficient evidence of the defendant's age at the time of the offenses and that the trial judge erred in failing to instruct the jury that in order to adjudicate the defendant as a youthful offender, they must find that the Commonwealth had proved that he was between fourteen and seventeen years of age at the time of the offenses. Nevertheless, the motion judge found no risk of a miscarriage of justice because, although she found that the Commonwealth failed to submit sufficient evidence of the defendant's age during its case-in-chief, the defendant introduced evidence establishing that he was between fourteen and seventeen years of age at the time of the crimes. The judge further concluded that the sentencing judge's imposition of a twenty-year mandatory minimum sentence was not automatic: the record demonstrated that she had considered the evidence presented at trial and the probation department's presentence report before imposing the mandatory minimum sentence.

Discussion. We review the denial of a motion for relief from unlawful restraint brought under Mass. R. Crim. P. 30 (a) for an abuse of discretion or error of law. See Perez I, 477 Mass. at 681-682, 80 N.E.3d 967 ; Commonwealth v. Wright, 469 Mass. 447, 461, 14 N.E.3d 294 (2014).

1. Sufficiency of the evidence. The defendant argues that the evidence at trial was insufficient to sustain his adjudication as a youthful offender, and therefore that his motion for a required finding of not guilty should have been allowed. Specifically, the defendant challenges the sufficiency of the evidence that he was between the ages of fourteen and seventeen at the time of the offenses. We consider this claim to determine whether, viewing the evidence in the light most favorable to the Commonwealth, any rational jury could have found each of the elements of the offense beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).

In order for a juvenile to be...