Roberio v. Mass. Parole Bd.
| Decision Date | 24 October 2019 |
| Docket Number | SJC-12482 |
| Parties | Jeffrey S. ROBERIO v. MASSACHUSETTS PAROLE BOARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
483 Mass. 429
133 N.E.3d 792
Jeffrey S. ROBERIO
v.
MASSACHUSETTS PAROLE BOARD.
SJC-12482
Supreme Judicial Court of Massachusetts, Suffolk..
Argued January 8, 2019
Decided October 24, 2019
Benjamin H. Keehn, Committee for Public Counsel Services, for the plaintiff.
Matthew P. Landry, Assistant Attorney General, for the defendant.
Elizabeth Zito, of New York, Janie Y. Miller, of California, David J. Apfel, & Marielle Sanchez, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.
CYPHER, J.
This case concerns whether retroactive application of a 1996 amendment to G. L. c. 127, § 133A ( § 133A ), which prescribes parole eligibility conditions for prisoners serving life sentences, is an ex post facto violation, either on its face or as applied to the plaintiff, Jeffery S. Roberio.
In 1986, seventeen year old Roberio was convicted of armed robbery and murder in the first degree premised on theories of felony-murder, deliberate premeditation, and extreme atrocity or cruelty, and he was sentenced to life in prison without the possibility of parole. As a result of 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) (Diatchenko I ), which applied Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and invalidated mandatory life sentences for juvenile homicide offenders, Roberio became immediately eligible for parole.
In 2015, the defendant Parole Board (board) denied Roberio's application for parole and applied the 1996 amendment to § 133A that increased the maximum permissible period between subsequent applications for parole from three years to five years. See St. 1996, c. 43. Roberio challenged the board's decision in the Superior Court, and a judge concluded that the board did not abuse its discretion.
We allowed Roberio's application for direct appellate review and conclude that because the primary aim of the 1996 amendment was to afford relief to families of murder victims, the Legislature intended the amendment to apply retroactively. We also conclude that the amendment is not unconstitutional on its face. However, further discovery concerning the board's practical implementation of the 1996 amendment is necessary to determine whether application of the amendment to Roberio is nonetheless unconstitutional. Accordingly, we vacate the Superior Court judge's order allowing the board's motion for judgment on the pleadings and remand for further proceedings consistent with this
opinion.1
Background and facts. The details of Roberio's crimes are set forth in Commonwealth v. Roberio, 440 Mass. 245, 246-247, 797 N.E.2d 364 (2003) (affirming convictions), and need not be repeated here. It suffices to say that as a juvenile, Roberio devised and executed a vicious robbery, during which he and another individual brutally beat and strangled an elderly man to death.
In 2015, the board unanimously denied Roberio's first parole application on the ground that he was not "fully rehabilitated." The board cited Roberio's lack of corrective programming aimed at addressing his substance abuse, anger, and violence issues, issues which Roberio claimed had led to the very murder for which he was incarcerated, leaving the board with serious concerns regarding "whether he still presents a risk of harm to the community, and whether his release is compatible with the best interest of society." In conjunction with this denial, the board ordered a review in five years and advised that during those five years "Roberio should engage in rehabilitative programming that addresses substance abuse, anger, violence, and any potential mental health issues that may impair his ability to function as a law abiding citizen in society."2
At the time Roberio committed his crimes, § 133A provided that when the board denied a prisoner who was serving a life sentence parole, it was required to "carefully and thoroughly" reconsider the merits of that prisoner's case "at least once in each ensuing three year period." See G. L. c. 127, § 133A, as amended
through St. 1982, c. 108, § 2. We refer to the period between the board's denial of parole and a prisoner's subsequent review as a "setback" or "set-back period."
Roberio brought his challenge to the board's decision in Superior Court pursuant to G. L. c. 249, § 4, arguing that the board abused its discretion in failing to
consider adequately his juvenile status in making its parole determination. He also sought a declaration, pursuant to G. L. c. 231A, that the board's application of the 1996 amendment to him posed a significant risk of prolonging his incarceration and, as a result, violated his constitutional right to be protected from the operation of ex post facto laws, as provided in art. I, § 10, of the United States Constitution and art. 24 of the Massachusetts Declaration of Rights. The judge denied Roberio's subsequent motions for judgement on the pleadings and summary judgment, and allowed the board's cross motion for judgment on the pleadings. The judge found that the board did not abuse its discretion in denying Roberio's parole, and she concluded that Roberio's claim of increased punishment was speculative and conjectural.
Discussion. 1. Retroactive application of the 1996 amendment. As an initial matter, the parties agree that the board applied the 1996 amendment retroactively to Roberio. Roberio argues that the Legislature did not intend for the 1996 amendment to operate retroactively, and therefore, we should apply the ordinary presumption of prospective application in this case. See G. L. c. 4, § 6, Second. The board maintains that the 1996 amendment may operate retroactively because it is procedural in nature and, in any event, prospective application of the amendment would be inconsistent with the aims of its enactment. We need not reach the board's argument that the 1996 amendment is procedural because we conclude that the Legislature in fact intended the amendment to apply retroactively.3
In accordance with our rule of statutory construction, amendments to penal statutes are "presumptively prospective" (citation omitted). Commonwealth v. Bradley, 466 Mass. 551, 553, 998 N.E.2d 774 (2013). See G. L. c. 4, § 6, Second. The objective of this presumption "is to ‘preserve, even after legislative change of a statute, the liability of an offender to punishment for an earlier act or omission made criminal by the statute repealed in whole or in part.’ " Bradley, supra, quoting Commonwealth v. Dotson, 462 Mass. 96, 100, 966 N.E.2d 811 (2012).
The presumption of prospective application is not absolute. Watts v. Commonwealth, 468 Mass. 49, 55, 8 N.E.3d 717 (2014), citing Bradley, 466 Mass. at 553, 998 N.E.2d 774. "In accordance with G. L. c. 4, § 6," it will not apply where "the prospective application of the legislation in question would be ‘inconsistent with the manifest intent of the law-making body or
repugnant to the context of the same statute.’ " Watts, supra, quoting Bradley, supra. See Commonwealth v. Didas, 471 Mass. 1, 5, 26 N.E.3d 732 (2015) (same). We generally treat these as "distinct exceptions." Watts, citing Bradley, supra. See Bradley, supra ("Legislature intended that there be two exceptions, perhaps often related in fact, but separate and distinct in meaning"). But see Didas, supra at 10 n.11, 26 N.E.3d 732 (single line of inquiry may be sufficient to address both exceptions where party advances essentially same argument under both exceptions). We consider both in turn.
The presumption of prospective application is inconsistent with the manifest intent of the Legislature where an intention that the statute apply retroactively is clearly expressed. Watts, 468 Mass. at 55, 8 N.E.3d 717, quoting Bradley, 466 Mass. at 554, 998 N.E.2d 774. "The Legislature may clearly express its intent through the words used in a statute or the inclusion of other retroactive provisions in the statute that would make prospective application of the provision at issue anomalous, if not absurd" (quotations and citation omitted). Bradley, supra. Under this exception, "inferring that the Legislature probably intended retroactive application is not enough; that intent must be ‘clearly expressed’ " (citation omitted). Id.
The act providing for the 1996 amendment, entitled "An Act relative to eligibility for parole," provided only, " Section 133A of chapter 127 of the General Laws ... is hereby amended by striking out, in line 24, the word ‘three’ and inserting in place thereof the following word: five." The Legislature did not express an intention that the 1996 amendment apply retroactively. Indeed, "the...
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