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SJC-11828

                COMMONWEALTH   vs.   LOUIS R. COSTA.



             Suffolk.     May 5, 2015. - July 9, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.



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


     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on November 28, 2014.

    The case reported by Hines, J.


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


    LENK, J.    In Miller v. Alabama, 132 S. Ct. 2455, 2460

(2012) (Miller), the United States Supreme Court held that the
                                                                     2


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 (2013) (Diatchenko), S.C., 471 Mass. 12

(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.

    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.   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 (2013) (Brown), decided on the same day as

Diatchenko, we determined that the proper remedy was to excise
                                                                    3


from the sentencing statute, when applied to juvenile offenders,

the provision regarding parole ineligibility.    Diatchenko, 466

Mass. at 673.   Brown, 466 Mass. at 680-689.    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.

    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
                                                                     4


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 (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,


     1
       We acknowledge the amicus briefs submitted on behalf of
the defendant by the Committee for Public Counsel Services and
the Child Advocate of the Commonwealth of Massachusetts, and by
James Costello.
                                                                      5


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 (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
                                                                    6


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
                                                                   7


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
       The parties do not dispute that our "general
superintendence" power under G. L. c. 211, § 3, allows us to
review the judge's order granting the defendant's motion for a
hearing. Additionally, "[w]here . . . the single justice has,
                                                                       8


    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 Diatchenko, 466 Mass. 661-667.

    When an appellate court determines that one component of an

integrated sentencing package is illegal, the court generally

vacates the sentence in its entirety, while leaving the

underlying convictions intact, and remands for resentencing.

See Commonwealth v. Parrillo, 468 Mass. 318, 321 (2014);


in [her] discretion, reserved and reported the case to the full
court, we grant full appellate review of the issues reported."
Matter of a Grand Jury Investigation, 470 Mass. 399, 402 n.4
(2015), quoting Martin v. Commonwealth, 451 Mass. 113, 117
(2008).
                                                                        9


Commonwealth v. Cumming, 466 Mass. 467, 471 (2013); Commonwealth

v. Talbot, 444 Mass. 586, 597-598 (2005).       In Commonwealth v.

Renderos, 440 Mass. 422, 423 (2003), for instance, the defendant

was convicted of two counts of indecent assault and battery on a

person who had attained fourteen years of age, and was sentenced

to a suspended two-year sentence and to a lifetime term of

community parole supervision.       We determined the lifetime

community parole supervision portion of the sentence was

contrary to law.      Id. at 434.   We then vacated the defendant's

entire sentence and remanded for resentencing.       Id. at 435.   We

explained that "[t]he judge's belief that lifetime community

parole supervision could be imposed influenced his decision as

to the appropriate punishment for the defendant's two

convictions."   Id.     As a result, "[t]he sentences imposed

constituted an integrated package, each piece dependent on the

other, which cannot be separated."       Id.

    Here, similarly, based on the sentencing laws in place at

the time the judge imposed the sentence, the judge believed that

the practical consequences of the decision to impose consecutive

rather than concurrent sentences would be limited to the

defendant's treatment while incarcerated for life.      This court's

decisions in Diatchenko and Brown transformed a choice that

could be regarded as "somewhat symbolic" into one of some

consequence, since a consecutive sentence doubles the amount of
                                                                  10


time the defendant must serve before he becomes eligible for

parole.   The judge, in imposing consecutive sentences, could not

have known that his decision would have that effect.    He also

could not have known of the reasoning underlying our decisions

in Diatchenko and Brown.   Those decisions were based on "current

scientific research on adolescent brain development" that led us

to conclude that juvenile offenders are "constitutionally

different from adults for sentencing purposes."    Diatchenko, 466

Mass. at 669-670, quoting Miller, 132 S. Ct. at 2465.      We cannot

know that the judge would have imposed consecutive sentences had

he known about the effect that decision would ultimately have,

or had he known about the constitutional differences that

separate juvenile offenders from adults.    Accordingly, we

conclude that resentencing is appropriate under these

circumstances.

    Our decision is not contrary to Diatchenko.     There, we

rejected the defendant's argument that he was "entitled to be

resentenced," concluding that "he was not improperly sentenced

in the first instance, but only was denied the chance to be

considered for parole."    Diatchenko, 466 Mass. at 674.   The

defendant in Diatchenko, however, had been convicted of a single

count of murder in the first degree, which carried a statutorily

mandated sentence of life without the possibility of parole.

Id. at 656.   Because we remedied that unconstitutional
                                                                   11


sentencing statute by excising the parole ineligibility

provision, while leaving the rest of the statute to stand,

moreover, our decision simply transformed one statutorily

mandated sentence (life without the possibility of parole) into

another statutorily mandated sentence (life with the possibility

of parole after fifteen years).   In contrast to cases like

Commonwealth v. Renderos, 440 Mass. at 435, where the original

sentencing judge exercised a degree of discretion in structuring

an "appropriate punishment," therefore, in Diatchenko neither

the old nor the new sentence left a sentencing judge any

discretion.   As a result, a resentencing proceeding would serve

no purpose.   See Diatchenko, supra.   Instead, the defendant,

already having served thirty-one years, was "eligible to be

considered for parole immediately" and could apply directly "to

the Massachusetts parole board for a hearing that shall afford

him a meaningful opportunity to obtain release."    Id.

    While this case involves the same mandatory sentencing

scheme at issue in Diatchenko, the original sentencing judge did

exercise discretion in deciding to impose consecutive rather

concurrent sentences.   See Commonwealth v. Lykus, 406 Mass. 135,

145 (1989).   That decision, moreover, determines whether the

defendant is immediately eligible for parole or must wait an

additional two years.   The circumstances that rendered a

resentencing proceeding before a trial court judge unnecessary
                                                                    12


in Diatchenko, therefore, do not exist here.   Hence, in

accordance with our general approach where one aspect of an

integrated sentence has been deemed illegal, resentencing is

appropriate on both convictions.

    Our conclusion, resting as it does on our general approach

to resentencing rather than on constitutional grounds, has no

impact on the current sentencing scheme for juvenile offenders

convicted of murder in the first degree.    Our decisions in

Diatchenko and Brown resulted in a situation in which the

sentencing scheme for juvenile offenders convicted of murder in

the first degree was effectively identical to that for juvenile

offenders convicted of murder in the second degree.    See Brown,

466 Mass. at 689-691.   The Legislature responded to that

situation by providing specific penalties 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
                                                                  13


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.

    The new sentencing scheme, therefore, allows (and, in the

case of convictions of murder in the first degree based on

extreme atrocity or cruelty, demands) the imposition on a

juvenile offender convicted of murder in the first degree of a

sentence of life with eligibility for parole after thirty years.

The defendant, however, was not sentenced under the new

sentencing statute.   Instead, he was sentenced under the old

sentencing statute.   Because our decisions in Diatchenko and

Brown struck the parole ineligibility provision from that

statute when applied to juvenile offenders, the result was that

the defendant was sentenced under a statute that required a

sentence of life with parole eligibility after fifteen years.

The thirty-year time frame until the defendant becomes eligible

for parole results from the judge's discretionary decision to

impose consecutive sentences.   The defendant, moreover, does not

base his argument that resentencing is appropriate on the

contention that a sentence of life with parole eligibility after

thirty years is the "functional equivalent of a sentence of life
                                                                   14


without parole."   Brown, 466 Mass. at 691 n.11.3   Instead, the

defendant merely argues that, because his sentence of life with

parole eligibility after thirty years derives from the judge's

decision to impose consecutive sentences, and because the

sentencing judge could not have understood that his decision

would have that effect, resentencing is appropriate.    We agree

with that reasoning.     Our conclusion that resentencing is proper

in this case thus does not rest on a constitutional

determination that a sentence of life with parole eligibility in

thirty years is the functional equivalent of life without the

possibility of parole.    Our decision has no impact on the

current sentencing scheme for juvenile offenders convicted of

murder in the first degree.    The constitutionality of that

scheme is not before us.4


     3
       Cf. Casiano v. Commissioner of Correction, 317 Conn. 52
(2015) (concluding that "the imposition of a fifty-year sentence
without the possibility of parole is subject to the sentencing
procedures set forth in Miller"); State v. Null, 836 N.W.2d 41,
71 (Iowa 2013) (determining 52.5-year sentence was "sufficient
to trigger Miller-type protections"); Bear Cloud v. State, 334
P.3d 132, 136, 142 (Wyo. 2014) (sentence of forty-five years
until parole eligibility sufficient to constitute functional
equivalent of life without possibility of parole); United States
Sentencing Commission Final Quarterly Data Report, at 32 (Fiscal
Year 2013) (equating sentence of 470 months [39.17 years] to
life sentence).
     4
       There is no merit to the Commonwealth's argument that
resentencing is unnecessary because this court already reviewed
"the whole case" on both "the law and the evidence" under G. L.
c. 278, § 33E, and affirmed the imposition of consecutive
sentences. See Commonwealth v. DiBenedetto, 427 Mass. 414, 416
                                                                    15


    b.     Nature of the proceeding.   Having determined that a

trial court judge may hold a resentencing hearing in these

circumstances, we now address the factors to be considered at

such a hearing.   Generally, "in the exercise of her sentencing

discretion, [a] judge may consider a variety of factors

including the defendant's behavior, family life, employment

history, and civic contributions, as well as societal goals of

'punishment, deterrence, protection of the public, and

rehabilitation.'"    Commonwealth v. Donohue, 452 Mass. 256, 264

(2008), quoting Commonwealth v. Power, 420 Mass. 410, 414

(1995), cert. denied, 516 U.S. 1042 (1996).     In resentencing a

juvenile offender originally sentenced to life without the

possibility of parole, a judge properly may consider these

factors.    We identify three additional factors that a judge

conducting such a resentencing should consider.

    First, in Miller, the United States Supreme Court

identified a number of factors (Miller factors) that sentencing

judges must consider in making the individualized determination


(1998). This court also affirmed the mandatory imposition of a
sentence of life without the possibility of parole, although
that decision is plainly contrary to the United States Supreme
Court's decision in Miller v. Alabama, 132 S. Ct. 2455, 2460
(2012) (Miller), which we already determined to have retroactive
effect. "Miller broke new ground and did not merely apply an
established constitutional standard to a novel set of facts."
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655, 663 (2013), S.C., 471 Mass. 12 (2015). The decision,
therefore, rendered invalid sentences previously affirmed by
this court after review under G. L. c. 278, § 33E.
                                                                  16


whether a juvenile offender should receive a sentence of life

without the possibility of parole:   (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."   Miller, 132 S. Ct. at 2468.

Because these factors relate to the societal goals of

punishment, deterrence, protection of the public, and

rehabilitation, see Commonwealth v. Power, 420 Mass. at 414, we

believe that a judge should consider the Miller factors when

conducting a resentencing hearing of a juvenile offender

originally sentenced to multiple consecutive sentences of life

without parole.

    Second, this court's decisions in Diatchenko and Brown,

like the United States Supreme Court's decision in Miller, were
                                                                     17


based on "current scientific research on adolescent brain

development."    Diatchenko, 466 Mass. at 669.   That research led

us to conclude 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."    Id. at 670.   In conducting the resentencing hearing,

then, the judge appropriately may consider evidence concerning

the defendant's then-extant psychological characteristics in the

process of assessing the Miller factors.

    Third, "in resentencing following the invalidation of a

sentence (where the underlying conviction has not been vacated),

the resentencing judge has authority to consider favorable

information about [a] defendant's good conduct subsequent to his

[or her] original sentencing," as well as "information presented

by the Commonwealth concerning a defendant's unfavorable conduct

occurring subsequent to his [or her] original sentencing

hearing."    Commonwealth v. White, 436 Mass. 340, 344-345 (2002).5


    5
       In this regard, a resentencing proceeding under Mass. R.
Crim. P. 30, as appearing in 435 Mass. 1501 (2001), differs from
a revocation and revision proceeding under Mass. R. Crim. P. 29,
378 Mass. 899 (1979). Rule 29 allows a trial judge, within a
limited period of time after the imposition of a sentence, to
"revise or revoke such sentence if it appears that justice may
not have been done." Rule 29 applies to lawful sentences; its
purpose is "to permit a judge to reconsider the sentence he [or
she] has imposed and determine, in light of the facts as they
existed at the time of sentencing, whether the sentence was
                                                                 18


Here, the defendant wishes to offer at a resentencing hearing

evidence that he has maintained a perfect disciplinary record

since his sentencing in 1994, that he has earned a college

degree while incarcerated, and that he has founded and led the

Restorative Justice Program, which seeks to foster

reconciliation between prisoners and their victims' families.

The defendant contends that this record of accomplishment is all

the more compelling given that, for most of the time he has been

incarcerated, he had no hope of ever receiving parole.     We agree

that information concerning the defendant's postsentencing

conduct, whether favorable or unfavorable, and whether offered

by the defendant or by the Commonwealth, properly may be

presented and considered at the resentencing hearing.6



just." Commonwealth v. Layne, 386 Mass. 291, 295 (1982). See
Commonwealth v. Sitko, 372 Mass. 305, 314 (1977). The rule
contains strict time limits because "the passage of time from
the date of sentencing" makes it "increasingly difficult for a
trial judge to make the determination called for by the rule
without improperly considering postsentencing events."
Commonwealth v. Layne, supra at 295-296. Rule 30, by contrast,
permits a motion to be made "at any time," but requires that the
person bringing the motion be restrained or confined unlawfully.
     6
       Contrary to the Commonwealth's contention, consideration
of postsentencing conduct does not violate the separation of
powers by encroaching on the parole board's executive function.
A judge may not allow a motion to alter a sentence in order to
"nullify the discretionary actions of the parole board."
Commonwealth v. Amirault, 415 Mass. 112, 117 (1993). Here,
however, the resentencing proceeding merely will determine how
many years the defendant must serve before becoming eligible for
parole. The decision whether to grant parole would remain
within the parole board's discretion.
                                                                  19


    3.   Conclusion.   A trial court judge, in resentencing a

defendant who was under the age of eighteen at the time of his

or her crime under Mass. R. Crim. P. 30 (a) and this court's

decisions in Diatchenko and Brown, may amend that aspect of the

original sentence that imposed consecutive life sentences to

impose instead concurrent life sentences.   At the resentencing

proceeding, 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.

    The matter is remanded to the county court for entry of a

judgment denying the Commonwealth's petition for relief under

G. L. c. 211, § 3.

                                   So ordered.
