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SJC-12498

                  COMMONWEALTH   vs.   FERNANDO PEREZ.



        Hampden.       May 10, 2018. - September 14, 2018.

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


Constitutional Law, Sentence. Due Process of Law,
     Sentence. Practice, Criminal, Sentence.



     Indictments found and returned in the Superior Court
Department on February 16 and March 2, 2001.

     Following review by this court, 477 Mass. 677 (2017), a
motion for resentencing was heard by Daniel A. Ford, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Elizabeth Caddick for the defendant.
     Elizabeth Dunphy Farris, Assistant District Attorney
(Katherine E. McMahon, Assistant District Attorney, also
present) for the Commonwealth.
     Elizabeth A. Billowitz & Michelle Menken, for youth
advocacy division of the Committee for Public Counsel Services,
amicus curiae, submitted a brief.


     KAFKER, J.    In Commonwealth v. Perez, 477 Mass. 677, 688

(2017) (Perez I), we determined that the juvenile defendant,
                                                                     2


Fernando Perez, received a sentence for his nonhomicide offenses

that was presumptively disproportionate under art. 26 of the

Massachusetts Declaration of Rights in that the time he would

serve prior to parole eligibility exceeded that applicable to a

juvenile convicted of murder.   We therefore remanded the matter

to the Superior Court for a hearing to determine whether, in

light of the factors articulated by the United States Supreme

Court in Miller v. Alabama, 567 U.S. 460, 477-478 (2012), the

case presented extraordinary circumstances justifying a longer

parole eligibility period.   Perez I, supra.   On remand, a judge

in the Superior Court (hearing judge) held a Miller hearing and

concluded that extraordinary circumstances were present.     He

therefore denied the defendant's motion for resentencing,

leaving intact a longer period of incarceration for the

defendant prior to his being eligible for parole than would be

the case for a juvenile convicted of murder.   The defendant was

eligible for parole after twenty-seven and one-half years in

prison, while a juvenile convicted of murder at that time would

have been eligible for parole after fifteen years.

See Diatchenko v. District Attorney for the Suffolk Dist., 466

Mass. 655, 673 (2013), S.C., 471 Mass. 12 (2015).    The defendant

appealed, and we granted his application for direct appellate

review.   Here, we clarify the extraordinary circumstances

requirement justifying longer periods of incarceration prior to
                                                                     3


eligibility for parole for juveniles who did not commit murder

than for those who did.    We conclude that the hearing judge

erred in finding extraordinary circumstances in this case,

particularly in regard to the juvenile's personal and family

attributes.    The crimes he committed meet the extraordinary

circumstances requirement, but his personal and family

circumstances do not. 1

     Facts.    As we described in Perez I, 477 Mass. at 679-680,

in the early hours of December 23, 2000, the defendant, "then

aged seventeen, committed two robberies and attempted a third.

The three crimes occurred within thirty minutes of each other

and within a several-block radius of downtown Springfield."

That night his uncle, Tito Abrante, gave the defendant a gun and

encouraged him to get out of the vehicle and commit these

crimes.    The uncle "shuttled [the defendant] from crime to

crime.    The defendant first robbed a married couple at a train

station and then robbed a man walking on Main Street.    In the

third incident, he approached Carlo D'Amato, an off-duty

detective with the Springfield police department" and threatened

to rob him (footnote omitted).    Id.   D'Amato identified himself

as a police officer and told the defendant to desist.    "As

Detective D'Amato reached for his badge, the defendant shot him;

     1 We acknowledge the amicus brief submitted by the youth
advocacy division of the Committee for Public Counsel Services.
                                                                     4


the defendant continued to fire the weapon as he retreated from

the scene.      Detective D'Amato suffered serious injuries that

required multiple surgeries."      Id. at 680.   The first bullet

missed, but the second bullet went through his colon, nicked his

aorta, passed through his vena cava, and nicked his right

kidney.   Indeed, after the Miller hearing, the hearing judge

found that D'Amato is permanently disabled and has undergone

further surgeries since the defendant's initial sentencing, and

that "in the aftermath of this incident his life became a living

hell and has been changed forever."      For this crime spree, the

defendant was convicted by a jury of armed robbery, armed

assault with intent to rob, assault and battery by means of a

dangerous weapon, and firearms offenses.      After an evaluation

under G. L. c. 123, § 15 (e), and after considering further

information about the defendant's upbringing, the trial judge

sentenced him to an aggregate sentence of thirty-two and one-

half years, with parole eligibility after twenty-seven and one-

half years. 2




     2 On one set of indictments, the trial judge sentenced the
defendant as follows: armed robbery (count 1), from five to
seven and one-half years in State prison; armed robbery (count
3), from five years to five years and one day in State prison,
to run from and after the sentence for count 1; armed robbery
(count 5), ten years' probation to run from and after the
sentence on count 4 in the second set of indictments; and
unlawful possession of a firearm (count 7), two and one-half
                                                                      5


     Miller hearing.    At the Miller hearing on remand, the

hearing judge, who had presided over Abrante's trial arising

from the same incidents, made further findings. 3   He found that

the defendant had a "very difficult upbringing" characterized by

domestic violence.     The hearing judge found that the defendant's

father physically and emotionally abused his mother, threatening

to kill her in front of the defendant and his siblings.    The

defendant "would sometimes arm himself with baseball bats and



years in a house of correction, concurrent with the sentence for
count 3.

     On the second set of indictments, the trial judge sentenced
the defendant as follows: armed assault with the intent to rob
(count 2), from seven and one-half to ten years in State prison,
to run from and after the sentence on count 3 in the first set
of indictments; assault and battery by means of a dangerous
weapon (count 4), from nine years and 364 days to ten years in
State prison, to run from and after the sentence for count 2;
unlawful possession of a firearm (count 5), two and one-half
years in a house of correction, concurrent with the sentence for
count 7 of the first set of indictments; and unlawful discharge
of a firearm (count 6), one day in a house of correction,
concurrent with the sentence for count 5.

     3 The hearing judge took no testimony at the Miller hearing,
see Miller v. Alabama, 367 U.S. 460 (2012), but relied on
documentary evidence, including the trial transcript and
presentencing reports. Despite the fact that the hearing judge
presided over Tito Abrante's trial and thus was presumably more
familiar with the facts of the case than any other judge to whom
the case might have been assigned, he nonetheless did not hear
the evidence as it was presented in the defendant's trial.
Rather, he could consider only the written record. In these
circumstances, we do not give his decision the same "special
deference" that we give when a posttrial motion is heard by the
same judge who presided at trial (citation omitted). See, e.g.,
Commonwealth v. Moffat, 478 Mass. 292, 299 (2017).
                                                                    6


screwdrivers in order to be prepared to protect his mother."

His mother and the children moved frequently to escape the

violence, and the mother eventually remarried and moved to

Massachusetts.   For a time, the defendant's "Uncle Eddie," his

mother's brother, assisted in rearing the children.    As the

hearing judge found, "By all accounts, Uncle Eddie was a

positive influence who became a father figure to the defendant

and taught the defendant to be 'a good man.'    The defendant

loved Uncle Eddie very much and aspired to be like him."

Unfortunately, Uncle Eddie was murdered in Puerto Rico, leaving

the defendant "depressed, preoccupied, and even obsessed with

his uncle's death."   Shortly thereafter, Abrante was released

from prison after serving a seventeen-year sentence on prior

offenses and moved in with the family.

     The hearing judge found that Abrante "was a monster in the

most damning sense of that word."   "He told the defendant

stories about violent acts that he had committed and said that

he wanted to train the defendant to be his 'back-up' so that

they could avenge the death of Uncle Eddie.    He bragged about

killing a number of people, including a fifteen year old girl

and other women and children.   He plied the defendant with drugs

and alcohol, and encouraged him to have sexual relations with

'older women.'   He beat a woman and attacked her with a knife in

the defendant's presence.   He put the defendant 'on alert' to
                                                                    7


accompany him to New York to perform a 'hit.'   He tried to

control the defendant's movements and allowed him to visit with

his mother and girl friend for only short periods of time.    The

defendant claimed that he was in constant fear of [Abrante], and

worried that he would be killed if he crossed his uncle."

     The defendant did briefly move to Maine to enter the Job

Corps, but returned to Massachusetts after a few months.    The

hearing judge was unable to determine whether the defendant

returned because, as the Commonwealth argued, he liked the

criminal lifestyle to which Abrante had exposed him or because,

as the defendant argued, he was lonely and missed his girl

friend and his mother.   The hearing judge found only that the

defendant returned "despite his fear of his uncle and with the

knowledge that his uncle was attempting to recruit him into a

life of crime."

     The hearing judge also made findings about the defendant's

personal characteristics.   He found that the defendant's

intelligence quotient was "at the low end of the normal range,"

that he had been in special education, and that he "struggled to

keep up with his school work."   He was diagnosed with

posttraumatic stress disorder, depression, and attention deficit

disorder.   As the hearing judge found, "[o]ne of [his mental

health counsellors] described [him] as trying 'to please others

all the time,' and noted that he was not 'very strong' and 'not
                                                                    8


a leader.'"    An evaluator observed:   "He has some difficulty

comprehending what is said to him, and has little skill at

understanding complex situations and at predicting outcomes.

When he is not sure what to say he acquiesces, when he is not

sure what to do, he complies, and when he does not know a

problem's solution, he is more likely to guess than inquire for

help."   His mental conditions, however, did not interfere with

his ability to form the intent required for his offenses, and he

knew right from wrong.    The hearing judge also noted that,

despite his fear of Abrante, the defendant was able to stand up

to him on at least one occasion, refusing to accompany him to

New York.   The defendant was not under duress when he committed

his crimes, as the jury found.

     Based on his findings, the hearing judge considered

the Miller factors.    As we articulated in Perez I, those factors

are: "(1) the particular attributes of the juvenile, including

'immaturity, impetuosity, and failure to appreciate risks and

consequences'; (2) 'the family and home environment that

surrounds [the juvenile] from which he cannot usually extricate

himself'; and (3) 'the circumstances of the . . . offense,

including the extent of [the juvenile's] participation in the

conduct and the way familial and peer pressures may have

affected him.'"    Perez I, 477 Mass. at 686, quoting Miller, 567

U.S. at 477.    Weighing those factors, the hearing judge
                                                                     9


determined that although the defendant's "horrible" family and

home environment, and the influence of Abrante, might have

favored an earlier parole eligibility, the circumstances of the

crimes themselves, particularly the catastrophic injuries

suffered by D'Amato, outweighed those considerations. 4   As to the

defendant's personal characteristics, the hearing judge

determined that although the defendant might have acted

impetuously, he nonetheless had the maturity to appreciate the

risks and consequences of his actions.   The hearing judge

therefore ruled that the Commonwealth had demonstrated the

existence of extraordinary circumstances warranting the

imposition of a sentence treating the defendant more harshly for

parole purposes than a juvenile convicted of murder.

     Discussion.   1.   Standard of review.   We review the denial

of a motion brought under Mass. R. Crim. P. 30 (a), as appearing

in 435 Mass. 1501 (2001), for abuse of discretion or error of

     4 The hearing judge also found that "there was evidence that
the defendant later laughed about how . . . D'Amato lay in the
street, holding his stomach and struggling for his life." In
fact, a witness testified that the defendant laughed at some
points while describing his offenses to her, but she could not
recall precisely at which points. In our view, the trial
transcript is unclear regarding whether the defendant
specifically laughed about D'Amato's suffering. As there was no
testimony presented at the Miller hearing, "we are in 'as good a
position as the [hearing] judge to assess the trial record."
Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017), quoting
Commonwealth v. Phinney, 446 Mass. 155, 158 (2006), S.C., 448
Mass. 621 (2007).
                                                                        10


law. 5       See, e.g., Commonwealth v. Wright, 469 Mass. 447, 461

(2014).        The defendant argues that the hearing judge erred by

finding extraordinary circumstances and therefore failing to

resentence him so as to provide for a parole eligibility date

conforming to that available to juveniles convicted of murder.

He contends that the hearing judge's erroneous determination and

conclusion violates art. 26's guarantee of proportionality, as

we defined proportionality in Perez I.        Where a defendant claims

that a judge has made an error of constitutional dimension, "we

accept the judge's subsidiary findings of fact absent clear

error and leave to the judge the responsibility of determining

the weight and credibility to be given . . . testimony presented

at the motion hearing" but "review independently the application

of constitutional principles to the facts found."        Commonwealth

v. Villagran, 477 Mass. 711, 713 (2017), quoting Commonwealth

         5
       In Commonwealth v. Perez, 477 Mass. 677, 681-682 (2017),
we stated:

         "We review the denial of a motion brought under Mass. R.
         Crim. P. 30 (a)[, as appearing in 435 Mass. 1501 (2001)],
         for an abuse of discretion. Commonwealth v. Wright, 469
         Mass. 447, 461 (2014). Under that standard, the issue is
         whether the judge's decision resulted from '"a clear error
         of judgment in weighing" the factors relevant to the
         decision . . . such that the decision falls outside the
         range of reasonable alternatives' (citation omitted). L.L.
         v. Commonwealth, 470 Mass. 169, 185 n.27 (2014)."

To be clear, the denial of such a motion is also reviewed for
error of law. See, e.g., Wright, supra. In the instant case,
we conclude that there was an error of law.
                                                                      11


v. Meneus, 476 Mass. 231, 234 (2017), and Commonwealth v. Amado,

474 Mass. 147, 151 (2016) (reviewing ruling on motion to

suppress).

     In the instant case, however, the hearing judge was not the

trial judge, and his fact finding was based on a review of the

trial record.   We are therefore in the same position as the

hearing judge in this regard.   That being said, with the

exception of his finding concerning the defendant's laughter

regarding the injuries inflicted on the officer, see note

4, supra, we accept and adopt his subsidiary findings.     We do,

however, reach a different conclusion regarding the application

of art. 26 to those facts.

     2.   Sentencing after Diatchenko.    After our decision

in Diatchenko, "a sentencing statute prescribing life without

the possibility of parole [for murder in the first degree] in

effect became a statute prescribing, for juvenile offenders,

life with the possibility of parole after fifteen

years."   Commonwealth v. Costa, 472 Mass. 139, 140 (2015).    We

further held that "a life sentence without the possibility of

parole [for murder in the first degree] violates art. 26,

regardless of whether such sentence is mandatory or imposed in

the sentencing judge's discretion."      Perez I, 477 Mass. at 683,

citing Diatchenko, 466 Mass. at 671.     Under the statutes then in

effect, a sentencing judge had no discretion to impose a period
                                                                     12


of incarceration prior to eligibility for parole that was longer

than fifteen years, even for murder in the first

degree.   Costa, supra.    See note 6, infra.   In Perez I, supra,

we were then presented with the question "whether the

requirement of proportionality bars the imposition, on a

juvenile defendant, of consecutive sentences for nonmurder

offenses with a resulting parole eligibility date that exceeds

that applicable to juveniles convicted of murder."

     In Perez I, 477 Mass. at 686, we ruled:

     "[A] juvenile defendant's aggregate sentence for nonmurder
     offenses with parole eligibility exceeding that applicable
     to a juvenile defendant convicted of murder is
     presumptively disproportionate. That presumption is
     conclusive, absent a hearing to consider whether
     extraordinary circumstances warrant a sentence treating the
     juvenile defendant more harshly for parole purposes than a
     juvenile convicted of murder."

     At such a hearing, the judge must weigh the factors

articulated in Miller, 567 U.S. at 477-478, "appl[y] them

uniquely to the individual defendant, and consider[] whether a

[parole eligibility date] exceeding that applicable to a

juvenile convicted of murder (at least with respect to parole

eligibility) is appropriate in the circumstances."      Perez I, 477

Mass. at 686, citing Diatchenko, 466 Mass. at 668.     We clarify

today that, for juveniles, the criminal conduct alone is not

sufficient to justify a greater parole eligibility period than

is available for murder.    The juvenile's personal and family
                                                                 13


history must also be considered independently; this

consideration of the individual's personal and family history is

also not the ordinary mitigation analysis associated with

sentencing.   We emphasize today that both the crime and the

juvenile's circumstances must be extraordinary to justify a

longer parole eligibility period.   In the instant case, the

criminal conduct was comparable to murder but the juvenile's

individual characteristics did not establish that there was no

reasonable possibility of reform and redemption within the

parole eligibility period provided for juvenile murderers. 6


     6 In response to our decisions in Diatchenko and
Commonwealth v. Brown, 466 Mass. 676 (2013), the Legislature
established specific parole eligibility dates for juvenile
offenders convicted of murder in the first degree. G. L.
c. 279, § 24.

     "The resulting legislation establishes that, 'for murder in
     the first degree committed by a person on or after the
     person's fourteenth birthday and before the person's
     eighteenth birthday, the court shall fix a minimum term'
     before the individual becomes eligible for parole 'of not
     less than [twenty] years nor more than [thirty] years.'
     Id. Where the conviction of murder in the first degree is
     based on extreme atrocity or cruelty, 'the court shall fix
     a minimum term of [thirty] years.' Id. Finally, where the
     conviction of murder in the first degree for a juvenile
     offender is based on 'deliberately premeditated malice
     aforethought . . . , the court shall fix a minimum term of
     not less than [twenty-five] years nor more than [thirty]
     years.' Id."

Commonwealth v. Costa, 472 Mass. 139, 145 (2015). The defendant
was sentenced in 2002, well before the enactment of this new
sentencing statute and while the old sentencing statute was
still in force. As previously explained, "[b]ecause our
                                                                    14


     The Miller principles we apply arise from the Supreme

Court's recognition "that children are constitutionally

different from adults for purposes of sentencing.   Because

juveniles have diminished culpability and greater prospects for

reform, . . . 'they are less deserving of the most severe

punishments.'"   Miller, 567 U.S. at 471, quoting Graham

v. Florida, 560 U.S. 48, 68 (2010).   As the Court further

explained, "children have a 'lack of maturity and an

underdeveloped sense of responsibility,' leading to

recklessness, impulsivity, and heedless risk-taking"; they "are

more vulnerable . . . to negative influences and outside

pressures" and less able "to extricate themselves from horrific,

crime-producing settings"; and their character traits "are 'less

fixed' and [their] actions less likely to be 'evidence of

irretrievabl[e] deprav[ity].'"   Miller, supra, quoting Roper

v. Simmons, 543 U.S. 551, 569-570 (2005).   This recognition is

based in part on advances in scientific research concerning the

development of the juvenile brain, Miller, supra at 471-472,

research that we have relied on as well.    Diatchenko, 466 Mass.



decisions in Diatchenko and Brown struck the parole
ineligibility provision from [the old] statute when applied to
juvenile offenders, the result was that . . . [the] statute
. . . required a sentence of life with parole eligibility after
fifteen years." Costa, supra at 146. We therefore compare the
defendant's parole eligibility date to the fifteen-year
requirement.
                                                                  15


at 669-670.   The Miller Court, in ruling that the particular

juvenile murderer could not be subject to a mandatory sentence

of life without the possibility of parole, opined that

"appropriate occasions for sentencing juveniles to this harshest

possible penalty will be uncommon . . . because of the great

difficulty . . . of distinguishing at this early age between

'the juvenile offender whose crime reflects unfortunate yet

transient immaturity, and the rare juvenile offender whose crime

reflects irreparable corruption.'"   Miller, supra at 479-480,

quoting Roper, supra at 573, and Graham, supra at 68.

     In Miller, 567 U.S. at 465, 478, the Supreme Court

expressly recognized the viciousness of the murder, but

nonetheless concluded that the individual characteristics of the

juvenile murderer must be considered before imposing a life

sentence without parole.   See Roper, 543 U.S. at 573 ("An

unacceptable likelihood exists that the brutality or cold-

blooded nature of any particular crime would overpower

mitigating arguments based on youth as a matter of course, even

where the juvenile offender's objective immaturity,

vulnerability, and lack of true depravity should require a

sentence less severe than death").   We likewise consider both

the crime and the individual, although we provide a more

protective analysis under art. 26 regarding the individual

characteristics.   See Perez I, 477 Mass. at 683 ("The point of
                                                                  16


our departure from the Eighth Amendment jurisprudence was our

determination that, under art. 26, the 'unique characteristics

of juvenile offenders' should weigh more heavily in the

proportionality calculus than the United States Supreme Court

required under the Eighth Amendment [to the United States

Constitution]").   The criminal conduct must be extraordinary and

thus comparable to murder, and the personal characteristics of

the juvenile must also be extraordinary in that they necessitate

a parole eligibility period longer than that available for a

juvenile murderer, because there is no reasonable possibility of

redemption in less than that period of time.

     In regard to the individualized inquiry, we have further

explained:

          "Given current scientific research on adolescent brain
     development, and the myriad significant ways that this
     development impacts a juvenile's personality and behavior,
     a conclusive showing of traits such as an 'irretrievably
     depraved character,' Roper, 543 U.S. at 570, can never be
     made, with integrity, by the Commonwealth at an
     individualized hearing to determine whether a sentence of
     life without parole should be imposed on a juvenile
     homicide offender. See Miller, [567 U.S. at 471]. Simply
     put, because the brain of a juvenile is not fully
     developed, either structurally or functionally, by the age
     of eighteen, a judge cannot find with confidence that a
     particular offender, at that point in time, is
     irretrievably depraved."

Diatchenko, 466 Mass. at 669-670.

     We therefore do not require the Commonwealth to prove that

the defendant exhibited "irretrievable depravity" or
                                                                    17


"irreparable corruption" such as might justify, for Eighth

Amendment purposes albeit not under art. 26, a sentence of life

without parole.   See Miller, 567 U.S. at 471, 479-480.   See

also Diatchenko, 466 Mass. at 669-670. 7   Rather, we require the

Commonwealth to prove that the juvenile's personal

characteristics make it necessary to delay parole eligibility

for a time exceeding that available to juveniles convicted of

murder.   Stated another way, the Commonwealth must prove that

there is no reasonable possibility of the juvenile's being

rehabilitated within the time after which a juvenile convicted

of murder becomes eligible for parole. 8   As applied to the


     7 We also note that the United States Supreme Court, in
focusing on "irreparable corruption" and "irretrievable
depravity," was considering life without parole, not shorter
parole eligibility periods, as we are here. See generally
Miller, 567 U.S. 460; Graham v. Florida, 560 U.S. 48 (2010);
Roper v. Simmons, 543 U.S. 551 (2005).

     8 Without raising the issue with either the trial or the
hearing judge, the defendant urges us to hold that the
Commonwealth must make this showing at least by clear and
convincing evidence. As he points out, some State courts have
weighed the due process considerations set forth in Mathews v.
Eldridge, 424 U.S. 319 (1976), and decided in favor of imposing
a high standard on the government in cases where a juvenile was
facing a sentence of life without parole. See Commonwealth v.
Batts, 640 Pa 410, 475-476 (2017); Davis v. State, 2018 WY 40,
¶¶ 48-50. Because the evidence here was insufficient to satisfy
the extraordinary circumstances requirement even under a
preponderance standard, we need not resolve the issue, and do
not, given its complexity and its first being raised on appeal.
As a precautionary matter, however, if a sentencing judge
considers that the difference between a preponderance and a
clear and convincing evidence standard would matter in the
                                                                   18


defendant, that length of time is fifteen years.   See note

6, supra.

     We recognize the difficulty and complexity of this task,

and the need to develop better scientific tools to identify the

factors, such as psychopathy, that support a finding that a

juvenile is not reasonably likely to be rehabilitated.    See T.

Grisso & A. Kavanaugh, Prospects for Developmental Evidence in

Juvenile Sentencing Based on Miller v. Alabama, 22 Psychol. Pub.

Pol'y & L. 235, 240 (2016).   See also Roper, 543 U.S. at 573,

citing American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders 701-706 (4th ed. rev.

2000) ("As we understand it, this difficulty underlies the rule

forbidding psychiatrists from diagnosing any patient under

[eighteen] as having antisocial personality disorder, a disorder

also referred to as psychopathy or sociopathy . . .").    It is

for this reason, however, that we consider parole eligibility

periods longer than those provided for juvenile murderers to

require extraordinary circumstances.

     Applying these principles to the defendant's case, it is

clear that the crimes themselves met the extraordinary

circumstances requirement of Perez I.   The defendant committed



determination of exceptional individual circumstances justifying
a longer parole eligibility period, he or she should so
indicate.
                                                                    19


two armed robberies and attempted a third.    In that attempt, the

defendant repeatedly shot a police detective, gravely and

permanently injuring him after he identified himself and told

the defendant to desist.    The detective has suffered terribly

from the shooting.    That the defendant did not kill D'Amato

strikes us as a matter of pure happenstance.    The defendant was

also the principal in all of these crimes, not merely a joint

venturer with no control over the principal's actions.

Moreover, while it seems clear that the defendant was under

Abrante's influence, he nonetheless acted under his own

volition.   Nothing forced the defendant to shoot D'Amato; he

chose to do that.

     However, we are not persuaded that the defendant's personal

characteristics meet the extraordinary circumstances requirement

set out in Perez I.     As far as we are able to tell, until he

embarked on his crime spree, the defendant never engaged in any

criminal activity apart from a charge of larceny that was

dismissed after he completed a pretrial diversion program.      As a

child, the defendant lived in a horrific, violent environment

from which he could not extricate himself.    He enjoyed a brief

respite from his father's abuse of his mother when he was in the

care of Uncle Eddie, but with Uncle Eddie's death, he lost that

positive adult role model and became susceptible to Abrante's

pernicious influence.    By that time, the defendant was a
                                                                     20


teenager and had some ability to extricate himself from that

environment, but could not leave his family permanently. 9     The

defendant is also someone of low intelligence with a diagnosis

of posttraumatic stress disorder, depression, and attention

deficit disorder.

     We see no basis to conclude, on this record, that the

defendant has the extraordinary individual characteristics that

necessitate a longer parole eligibility period than that

available for a juvenile murderer.    Rather, as the Supreme Court

emphasized in Miller, 567 U.S. at 478-479, the juvenile had

mental health problems but no criminal history, and "if ever a

pathological background might have contributed to [the]

commission of a crime, it is here."    Based on the evidence

adduced at trial and considered at the Miller hearing, we

conclude that this case does not present extraordinary

circumstances justifying incarcerating the defendant, prior to

parole eligibility, longer than a juvenile convicted of murder.

     Furthermore, we see no reason to remand this matter for a

second Miller hearing at this point.    The record before us is

sufficient.   The crime spree was vicious and comparable to

     9 As noted above, the hearing judge was unable to resolve a
dispute between the parties as to the defendant's reason for
returning to Massachusetts from Maine. Absent any evidence
clearly indicating, as the Commonwealth contended, that the
defendant was motivated to follow Abrante into a life of crime,
we give the defendant the benefit of the doubt on this point.
                                                                  21


murder.   But the Commonwealth will not be able to demonstrate

that there is no reasonable possibility of rehabilitation within

the probationary period provided to juvenile murderers given the

defendant's lack of criminal history, his low intelligence and

mental health problems, and his terrible upbringing.     The

defendant's sentence is therefore amended to conform his parole

eligibility to that available to juveniles convicted of murder. 10

     Nothing we say today requires that the defendant receive a

shorter aggregate sentence for his crimes.    Those crimes, as

detailed above, were serious and warrant serious punishment.

Our Constitution requires, however, that a juvenile who commits

only nonhomicide offenses be presumptively eligible for parole

no later than a juvenile convicted of murder, unless the

Commonwealth proves that both the crimes themselves and the

characteristics of the juvenile present extraordinary

circumstances justifying harsher treatment.   This the

Commonwealth has not done.   Moreover, as in Diatchenko, our

decision does not mandate that the defendant be paroled once he

has served the portion of his sentence prior to his being

     10Had we ordered a new sentencing hearing, both the
defendant and the Commonwealth would have been permitted to
present evidence concerning the defendant's conduct since his
original sentencing. See Costa, 472 Mass. at 148-149 (in
resentencing following invalidation of original sentence, judge
may consider defendant's disciplinary record and other conduct
since sentencing, "whether favorable or unfavorable, and whether
offered by the defendant or by the Commonwealth").
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eligible for parole.    "At the appropriate time, it is the

purview of the Massachusetts parole board to evaluate the

circumstances surrounding the commission of the crime, including

the age of the offender, together with all relevant information

pertaining to the offender's character and actions during the

intervening years since conviction."    Diatchenko, 466 Mass. at

674.    The defendant, who was sentenced in 2002, has already

served more than fifteen years of his sentence.     Those years

have presumably provided the defendant with the opportunity to

demonstrate his own capacity for redemption and rehabilitation.

After making its evaluation, the parole board retains the power

to allow or deny parole in the exercise of its own judgment.

       Conclusion.   The order denying the defendant's motion for

resentencing is vacated, and the matter is remanded to the

Superior Court for resentencing in accordance with this opinion.

                                      So ordered.
