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SJC-12570

              COMMONWEALTH   vs.   DANIEL J. LaPLANTE.



            Suffolk.    March 5, 2019. - June 6, 2019.

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


Homicide. Constitutional Law, Sentence, Cruel and unusual
     punishment, Parole. Due Process of Law, Sentence, Parole.
     Practice, Criminal, Sentence, Parole. Parole.



     Indictments found and returned in the Superior Court
Department on January 12, 1988.

     Following review by this court, 416 Mass. 433 (1993), a
motion to vacate sentence, filed on June 12, 2015, was heard by
Hélène Kazanjian, J.

     A request for leave to appeal was allowed by Lowy, J., in
the Supreme Judicial Court for the county of Suffolk.


     Merritt Schnipper for the defendant.
     Crystal L. Lyons, Assistant District Attorney, for the
Commonwealth.
     Benjamin H. Keehn & Afton M. Templin, Committee for Public
Counsel Services, for Committee for Public Counsel Services &
others, amici curiae, submitted a brief.
                                                                        2


     LOWY, J.   At the age of seventeen, the defendant, Daniel J.

LaPlante, murdered a thirty-three year old pregnant mother,

Priscilla Gustafson, and her two young children, Abigail and

William Gustafson.    The issue before us is whether the

defendant's sentence of three consecutive terms of life

imprisonment, with the possibility of parole after forty-five

years, constitutes cruel or unusual punishment in violation of

art. 26 of the Massachusetts Declaration of Rights.       Because we

conclude that, on the specific facts of this case, the

defendant's sentence is within constitutional bounds, we affirm.

     Background.     1.   Facts.   The facts we recite are drawn from

the Superior Court judge's sentencing memorandum, which the

parties have designated as their statement of agreed facts:1

     "[The defendant] carefully planned [two] intrusions
     into the Gustafson[s'] home; first breaking in on
     November 16, 1987, and stealing items. While he could
     have stopped there, he decided to return. He obtained
     a gun and lied to his brother's friend in order to get
     bullets. He practiced loading and unloading the guns.
     On December 1, 1987, [the defendant] broke into the
     Gustafson[s'] house for the second time, carrying the
     loaded weapon. When he heard Priscilla Gustafson and
     her [five year old] son William entering the house, he
     said that his first thought was to jump out the
     window. But he decided not to. He confronted them
     with the gun, brought them to the bedroom, put William
     in the closet and tied Priscilla to the bed. [The
     defendant] said that after he tied Priscilla to the

     1 Our opinion affirming the defendant's convictions on
direct appeal also contains a statement of the facts underlying
the defendant's crimes and the subsequent police investigation,
which we do not repeat here. See Commonwealth v. LaPlante, 416
Mass. 433, 433-439 (1993).
                                                                    3


     bed, his plan was to leave. But once again he decided
     not to. Instead, he made the decision to rape her.
     After raping her, he acknowledged that he could have
     left. Instead, he decided he would kill her. After
     he killed Priscilla, [the defendant] made the decision
     to take William into the bathroom and drown him. As
     he was leaving, he encountered [seven year old]
     Abigail. He lured her into the bathroom and made the
     decision to drown her as well. . . . After fleeing
     the scene, [the defendant] went home, ate and then
     attended his niece's birthday party as if nothing had
     happened."

     2.   Sentencing and other posttrial proceedings.    In 1988,

the defendant was convicted of three counts of murder in the

first degree and sentenced to three consecutive terms of life

imprisonment without the possibility of parole.   This court

affirmed the convictions after plenary review.    Commonwealth v.

LaPlante, 416 Mass. 433, 444 (1993).

     In 2012, the United States Supreme Court held that the

prohibition on "cruel and unusual punishments" contained in the

Eighth Amendment to the United States Constitution forbids

mandatory sentences of life without parole for juvenile

offenders.2   Miller v. Alabama, 567 U.S. 460, 465 (2012).   The

following year, this court held that Miller was retroactive to

cases on collateral review, and we determined that the

protections of art. 26 extend beyond the Eighth Amendment

protections outlined in Miller, such that art. 26 prohibits the


     2 Throughout this opinion, the term "juvenile" offender
refers to an offender who was under the age of eighteen at the
time of the offense.
                                                                   4


imposition of life sentences without the possibility for parole

-- whether such imposition is mandatory or discretionary -- on

juvenile offenders.   Diatchenko v. District Attorney for the

Suffolk Dist., 466 Mass. 655, 658-659 (2013) (Diatchenko I),

S.C., 471 Mass. 12 (2015).

    In a separate opinion issued the same day as Diatchenko I,

we noted that, going forward, the contours of a new sentencing

scheme for juvenile homicide offenders would be left to the

sound discretion of the Legislature.   Commonwealth v. Brown, 466

Mass. 676, 691 n.11 (2013), S.C., 474 Mass. 576 (2016).   We

emphasized, however, that any constitutional sentencing scheme

must "avoid imposing on juvenile defendants any term so lengthy

that it could be seen as the functional equivalent of a sentence

of life without parole."   Id.

    Under Diatchenko I, 466 Mass. at 673, the remedy for

juvenile homicide offenders such as the defendant, who had been

sentenced under statutory provisions since declared

unconstitutional, was to leave their life sentences in full

force and effect, but to hold that the statutory prohibition on

parole eligibility did not apply to them.   Consequently, the

defendant's three consecutive life sentences were restructured

in accordance with applicable statutory provisions and parole

regulations, with the result that he would become eligible for

parole after serving forty-five years in prison.
                                                                  5


    The defendant subsequently filed a motion to vacate his

sentence.   While that motion was pending, this court decided

Commonwealth v. Costa, 472 Mass. 139, 149 (2015), in which we

held that juvenile defendants who were sentenced to consecutive

terms of life imprisonment before our decision in Diatchenko I

were entitled to a resentencing hearing at which,

    "in addition to the factors considered at any
    sentencing, the judge should consider (a) the Miller
    factors; (b) evidence regarding the defendant's
    psychological state at the time of the offense; and
    (c) evidence concerning the defendant's postsentencing
    conduct, whether favorable or unfavorable."3

In light of Costa, the Commonwealth conceded that the defendant

was entitled to a resentencing hearing, and the motion judge

ordered that the defendant be resentenced.



    3   We enumerated the "Miller factors" as follows:

    "(1) the defendant's 'chronological age and its
    hallmark features -- among them, immaturity,
    impetuosity, and failure to appreciate risks and
    consequences'; (2) 'the family and home environment
    that surrounds' the defendant; (3) 'the circumstances
    of the homicide offense, including the extent of [the
    defendant's] participation in the conduct and the way
    familial and peer pressures may have affected him' or
    her; (4) whether the defendant 'might have been
    charged and convicted of a lesser offense if not for
    incompetencies associated with youth -- for example,
    [the defendant's] inability to deal with police
    officers or prosecutors (including on a plea
    agreement) or [the defendant's] incapacity to assist
    his [or her] own attorneys'; and (5) 'the possibility
    of rehabilitation.'"

Commonwealth v. Costa, 472 Mass. 139, 147 (2015), quoting Miller
v. Alabama, 567 U.S. 460, 477-478 (2012).
                                                                   6


    Following a period for the parties to conduct discovery and

to obtain expert evaluations, an evidentiary hearing was held,

during which the Commonwealth offered the expert testimony of

Dr. Fabian M. Saleh and a number of exhibits were entered in

evidence.   Based on the evidence presented, after considering

traditional sentencing factors as well as the additional factors

set forth in Miller and Costa, the sentencing judge reinstated

the sentence of three consecutive life terms with parole

eligibility after forty-five years.

    The defendant filed a "gatekeeper" application with this

court pursuant to G. L. c. 278, § 33E, for leave to appeal from

the resentencing judge's ruling, as well as a motion for direct

entry of the appeal.   The single justice directed entry of the

appeal on the question "whether a juvenile homicide offender may

be required to serve forty-five years in prison before his or

her first opportunity to seek release based on rehabilitation."

We limit our answer to this question to the specific facts of

this case, where the juvenile offender's resentencing occurs

when he is well into adulthood and follows a hearing at which

evidence is presented regarding the offender's postsentencing

conduct and prospects for rehabilitation.

    Discussion.    The defendant concedes that the Eighth

Amendment does not bar the sentence that he received and that

the evidence in this case supported the resentencing judge in
                                                                   7


exercising her discretion to impose the most severe punishment

permitted under our State Constitution.   Therefore, the sole

question before us is whether this defendant's sentence crosses

the line drawn by art. 26, which prohibits the imposition of

"cruel or unusual punishments."

    "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."

Commonwealth v. Perez, 480 Mass. 562, 567-568 (2018) (Perez II),

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

However, we "review independently the application of

constitutional principles to the facts found."   Perez II, supra,

quoting Villagran, supra.

    The defendant invites this court to announce a bright-line

rule, a ceiling that no legislator or sentencing court

constitutionally may exceed in setting parole eligibility for a

juvenile homicide offender.   We decline this invitation.   We

also decline the Commonwealth's invitation to declare that where

each life sentence carries an individually permissible parole

eligibility period of fifteen years, the aggregate term to be

served before initial parole eligibility is not subject to a

proportionality analysis under art. 26.   Cf. Commonwealth v.
                                                                   8


Perez, 477 Mass. 677, 679 (2017) (Perez I) (analyzing

constitutionality under art. 26 of "aggregate time to be served

prior to parole eligibility" of juvenile nonhomicide offender).

Instead, the constitutionality of the defendant's sentence,

including the aggregate term to be served before parole

eligibility, is to be evaluated in light of the particular facts

presented.

       "To reach the level of cruel and unusual, the punishment

must be so disproportionate to the crime that it 'shocks the

conscience and offends fundamental notions of human dignity.'"

Cepulonis v. Commonwealth, 384 Mass. 495, 497 (1981), quoting

Commonwealth v. Jackson, 369 Mass. 904, 910 (1976).    We make

this determination by applying the three-prong

disproportionality test set forth in Cepulonis, supra at 497-

498.   See Perez I, 477 Mass. at 684 (applying Cepulonis

disproportionality test in context of juvenile defendant's

challenge to constitutionality of his sentence).

       The three prongs include (1) an "inquiry into the 'nature

of the offense and the offender in light of the degree of harm

to society'"; (2) "a comparison between the sentence imposed

here and punishments prescribed for the commission of more

serious crimes in the Commonwealth"; and (3) "a comparison of

the challenged penalty with the penalties prescribed for the

same offense in other jurisdictions" (citation omitted).
                                                                  9


Cepulonis, 384 Mass. at 497-498.   The burden of proving

disproportionality rests on the defendant.   Id. at 497.4

     Moreover, where, as here, the defendant, a juvenile

homicide offender, was originally sentenced before Miller and

Diatchenko I and has now been resentenced after the age of

forty, the resentencing must comply with the procedures set

forth by this court in Costa.   The Costa inquiry includes

consideration of the Miller factors -- among them, the

"possibility of rehabilitation" -- as well as an assessment of

the defendant's postsentencing conduct, "whether favorable or

unfavorable."   Costa, 472 Mass. at 147, 149, quoting Miller, 567

U.S. at 478.5




     4 As noted above, the defendant concedes that the facts of
his case warrant the most severe punishment permitted under our
Constitution. As a result, this case defies direct application
of the second Cepulonis prong. The defendant simply does not
suggest that there are "more serious crimes" to which this
multiple homicide ought to be compared. And with respect to the
third Cepulonis prong, the defendant cannot point to any case
from outside this jurisdiction invalidating a forty-five year
period before parole eligibility where the defendant committed
three distinct and deliberate murders.

     5 A resentencing proceeding under Costa differs from a
proceeding pursuant to a motion to revise or revoke a sentence
under Mass. R. Crim. P. 29, 378 Mass. 899 (1979). See Costa,
472 Mass. at 148 n.5. The consideration of these factors at a
Costa hearing does not violate the separation of powers. Id. at
149 n.6. Rather, here, as in Costa, "[t]he decision whether to
grant parole [will] remain within the parole board's
discretion." Id.
                                                                   10


      These same factors -- the Miller factors and an assessment

of the defendant's postsentencing conduct -- inform our analysis

of the constitutionality of the resulting sentence under art.

26.   "Disproportionality is not . . . an abstract inquiry."

Perez I, 477 Mass. at 684.6   Rather, we must conduct a

proportionality analysis under art. 26 that takes into account

all of the facts and circumstances that were before the

resentencing judge at the Costa hearing.

      In so doing, we remain mindful of 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."   Perez I, 477 Mass. at 683, quoting

Diatchenko I, 466 Mass. at 671.   That distinction formed the

basis for our holding in Diatchenko I that, under art. 26, all

juvenile homicide offenders "should be afforded a 'meaningful

opportunity to obtain release based on demonstrated maturity and




      6For this reason, this case does not compel us to decide
whether the defendant's sentence would have been constitutional
if it had been imposed upon him at the age of eighteen, when he
was originally sentenced. Cf. Diatchenko v. District Attorney
for the Suffolk Dist., 466 Mass. 655, 670 (2013), S.C., 471
Mass. 12 (2015) (holding that "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" [emphasis added]).
                                                                    11


rehabilitation.'"   Diatchenko I, supra at 674, quoting Graham v.

Florida, 560 U.S. 48, 75 (2010).7

     Here, the defendant will have the opportunity to appear

before the parole board after serving an aggregate term of

forty-five years.   In Diatchenko I and Brown, we effectively

held constitutional the statutory default period of fifteen

years before parole eligibility for a juvenile offender

convicted of a single count of murder in the first degree, while

recognizing the discretion of the Legislature to adjust that

period going forward to distinguish among "lesser" and "more

severe" degrees of murder.     Brown, 466 Mass. at 689 n.10, 690.

See Diatchenko I, 466 Mass. at 673-674.     Then, in Commonwealth

v. Okoro, 471 Mass. 51, 62 (2015), we held constitutional that

same fifteen-year period for juvenile offenders convicted of

murder in the second degree.    It stands to reason, therefore,

that the discretion to which we referred in Brown would permit




     7 On appeal before this court, the defendant argues that our
analysis under art. 26 of the Massachusetts Declaration of
Rights also should proceed "mindful of" the "shortened life
expectancies" of juvenile offenders such as the defendant.
However, no evidence regarding the defendant's life expectancy -
- or the life expectancies of juvenile offenders in general --
was presented to the resentencing court, and the defendant
ultimately "does not contend" that our analysis in this case
should "turn on" such factors.
                                                                  12


some period in excess of fifteen years before parole eligibility

for a juvenile offender convicted of murder in the first degree.8

     Further, by remanding the case for resentencing in Costa,

this court confirmed that in cases involving multiple counts of

murder, sentencing judges retain the discretion to impose

consecutive terms of life imprisonment.   We "emphatically did

not hold that Costa was entitled to be resentenced to concurrent

life terms to allow parole eligibility after fifteen years."

Perez I, 477 Mass. at 687.9

     The question remains whether a period of forty-five years

of incarceration before parole eligibility is proportioned "to

both the offender and the offense" in this case, Diatchenko I,

466 Mass. at 669, quoting Miller, 567 U.S. at 469, given all the

evidence before the resentencing judge.   We do not dwell long on

the facts of the defendant's offenses, which, as the defendant




     8 In fact, we have since held that even juvenile nonhomicide
offenders may be sentenced to an aggregate period before parole
eligibility that exceeds fifteen years, where "extraordinary
circumstances" warrant such a sentence. See Commonwealth v.
Perez, 477 Mass. 677, 686 (2017) (Perez I).

     9 Moreover, here, unlike in Perez I, we do not begin from
any presumption of disproportionality under art. 26. The
presumption in Perez I applies specifically to nonhomicide
offenders whose sentence would result in a period of
incarceration before parole eligibility that exceeds that
imposed on juveniles convicted of murder. Perez I, 477 Mass. at
686. See Commonwealth v. Lutskov, 480 Mass. 575, 583 (2018).
                                                                  13


concedes, are so egregious as to warrant the most severe

punishment permissible under our Constitution.

    With respect to the characteristics of the defendant, the

resentencing judge concluded that "the evidence submitted at the

hearing did not reflect that at the time of the murders he

displayed the 'hallmark features' of a juvenile, that is,

immaturity, impetuosity and failure to appreciate risks and

consequences."   Rather, she found that the defendant "acted

deliberately and intentionally" when committing these "three

distinct and brutal murders" and that, in describing those

murders to Saleh as an adult, he displayed "an extraordinary

lack of empathy."

    The resentencing judge further found that the defendant's

"family and home environment was . . . relatively unremarkable."

As to his psychological state, she credited the testimony of

Saleh that the defendant currently suffers from antisocial

personality disorder, which Saleh described as a "severe form of

a personality disorder with the hallmark[s] being the disregard

for the rights of others . . . [and] the lack of remorse."

Based on Saleh's testimony, the resentencing judge also found

that the murders of the victims "were a result of Conduct

Disorder, Child onset Type, rather than any adverse childhood

experiences, learning disabilities or immaturity."   Ultimately,

the resentencing judge concluded that although the defendant has
                                                                   14


"shown signs of improved behavior" in recent years, his

"prognosis for rehabilitation in the future is 'guarded.'"

    Based on the record before us, we need go no further.    The

defendant's sentence is proportional both to the crimes he

committed and to his particular characteristics as an offender,

giving due weight under art. 26 to the fact that he was a

juvenile when he committed the crimes.

    Conclusion.   For these reasons, we conclude that the

sentence imposed on the defendant by the resentencing judge does

not violate art. 26 and therefore affirm her resentencing

decision.

                                   So ordered.
