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SJC-12411

                  COMMONWEALTH   vs.   MAKSIM LUTSKOV.



        Hampden.       March 5, 2018. - September 14, 2018.

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


Armed Home Invasion. Youthful Offender Act. Constitutional
     Law, Sentence. Due Process of Law, Sentence. Practice,
     Criminal, Sentence, Instructions to jury.



     Indictments found and returned in the Superior Court
Department on December 27, 2000.

     After transfer to the Hampden County Division of the
Juvenile Court Department, the cases were tried before Patricia
M. Dunbar, J., and a motion for postconviction relief, filed on
November 28, 2016, was heard by Carol A. Shaw, J.

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


     Merritt Schnipper for the defendant.
     David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.
     Barbara Kaban, for Youth Advocacy Division of the Committee
for Public Counsel Services & others, amici curiae, submitted a
brief.
     Meredith Shih, for Boston Bar Association, amicus curiae,
submitted a brief.
                                                                    2



     LOWY, J.   The defendant, Maksim Lustkov, was sixteen years

old in October, 1999, when he committed an armed home invasion

during which he shot one occupant three times in front of the

occupant's teenage daughter.   A Juvenile Court jury adjudicated

the defendant a youthful offender on indictments charging armed

home invasion and various related offenses, and he was sentenced

to a mandatory minimum State prison term of from twenty years to

twenty years and one day. 1

     In 2016, after our decision in Diatchenko v. District

Attorney for the Suffolk Dist., 466 Mass. 655 (2013), S.C., 471

Mass. 12 (2015), the defendant filed a motion for relief from

unlawful restraint pursuant to Mass. R. Crim. P. 30 (a), as

appearing in 435 Mass. 1501 (2001), arguing that all mandatory

minimum sentences violate art. 26 of the Massachusetts

Declaration of Rights when applied to juveniles.   He also argued

that the evidence was insufficient to sustain his adjudication

as a youthful offender, and that the judge incorrectly

instructed the jury on the issue.   A Juvenile Court judge denied

the motion, and we granted the defendant's application for

direct appellate review.


     1 The defendant was adjudicated a youthful offender on
indictments charging armed home invasion; assault and battery by
means of a dangerous weapon (two counts); armed assault with
intent to rob; assault by means of a dangerous weapon; and
assault and battery.
                                                                   3


     On appeal, the defendant primarily argues that in light of

this court's decision in Commonwealth v. Perez, 477 Mass. 677

(2017) (Perez I), his mandatory twenty-year minimum sentence is

presumptively disproportionate because it imposes a longer

period of incarceration prior to eligibility for parole than

that applicable to a juvenile convicted of murder without a

finding of extraordinary circumstances based on consideration of

the factors articulated in Miller v. Alabama, 567 U.S. 460, 477-

478 (2012) (Miller).   He further argues that our reasoning

in Perez I applies with equal force to invalidate all mandatory

minimum sentences when applied to juveniles.

     For the reasons that follow, we conclude that the evidence

was sufficient to sustain the defendant's adjudication as a

youthful offender and, although we agree that the judge failed

to instruct the jury that they were required to find the

defendant's qualifying age in order to adjudicate him a youthful

offender, this error does not require reversal.   As to the

constitutionality of the defendant's sentence, we agree that the

defendant's sentence violates the proportionality requirement

inherent in art. 26.   Our decision in Perez I, 477 Mass. at 686,

requires sentencing judges to follow an individualized process

that allows for the consideration of mitigating circumstances

related to the juvenile's age and youthful characteristics

before imposing a sentence with a longer period of incarceration
                                                                       4


prior to eligibility for parole than that applicable to a

juvenile convicted of murder.     The defendant was sentenced to a

mandatory minimum term exceeding that applicable to a juvenile

convicted of murder without a Miller hearing in violation of the

requirements announced in Perez I, and refined in Commonwealth

v. Perez, 480 Mass.       (2018) (Perez II), also decided today.

Accordingly, we remand the case to the Juvenile Court for

resentencing. 2

     Background.   1.    Facts.   We summarize the facts relevant to

the present appeal in the light most favorable to the

Commonwealth, reserving certain details for later discussion.

At approximately 8:30 P.M. on October 31, 1999, Fulia Aiken

heard a knock at the door of the house where she lived with her

father, Amhet Aiken. 3   Fulia opened the door and the defendant,

who was armed with a firearm and accompanied by two accomplices,

forced his way inside.    All three individuals were wearing

masks.   Ahmet, in response to his daughter's screams, came

downstairs and a struggle ensued.     During the struggle, Ahmet

knocked off the defendant's mask and the defendant shot Ahmet


     2 We acknowledge the amicus briefs submitted by the youth
advocacy division of the Committee for Public Counsel Services,
Children's Law Center of Massachusetts, Citizens for Juvenile
Justice, and the Massachusetts Association of Criminal Defense
Lawyers; and by the Boston Bar Association.

     3 Because Fulia Aiken and her father, Amhet Aiken, share a
last name, we refer to them by their first names.
                                                                    5


three times.   The defendant and his accomplices fled, leaving

behind the mask that Ahmet had knocked off the defendant's face.

     2.   Trial.    During its direct case at trial, the

Commonwealth offered evidence of the defendant's age through two

witnesses.   A Springfield police detective testified that a

fingerprint lifted from the mask left at the Aikens' house was

identical to the defendant's left thumbprint, and a fingerprint

card bearing the defendant's name and date of birth ("02/06/83")

was admitted in evidence.    Fulia also testified that the

intruders appeared to be "kids . . . [a]bout sixteen, seventeen,

eighteen [at] the most."    At the close of the Commonwealth's

case, the defendant moved for a required finding of not guilty

on all charges, which the judge denied.    After the Commonwealth

rested, the defendant offered medical records and testimony from

his physician establishing that he was sixteen years old on the

date of the offenses.    The defendant was adjudicated a youthful

offender pursuant to G. L. c. 119, § 54, on all charges.

     3.   Sentencing.    At the sentencing hearing, the

Commonwealth recommended a sentence of from thirty to forty

years in State prison on the home invasion charge, and a

combination of concurrent and from-and-after sentences on the

remaining counts.    Pursuant to G. L. c. 119, § 58, as amended

through St. 1996, c. 200, § 5, the defendant requested a

sentence of commitment to the Department of Youth Services (DYS)
                                                                     6


until age twenty-one, and thereafter a commitment to State

prison for a term of from five to seven years.

     The judge did not follow the defendant's sentence

recommendation.   She explained that armed home invasion carried

a mandatory minimum sentence and, although a split sentence with

commitment to DYS was an available option, such a disposition

was not appropriate considering the defendant's age at the time

of sentencing (almost nineteen years old), public safety

concerns, and the violent nature of the offenses.    The judge

sentenced the defendant to from twenty years to twenty years and

one day in State prison on the armed home invasion charge.

     4.    Posttrial proceedings.   In August, 2013, after serving

one-half of his committed sentence, the defendant filed, pro se,

a motion for relief from unlawful restraint and for a new trial

pursuant to Mass. R. Crim. P. 30 (a) and (b), as appearing in

435 Mass. 1501 (2001), claiming ineffective assistance of

counsel.    The defendant primarily argued that he was entitled to

resentencing in light of the United States Supreme Court's

decision in Miller.    The trial judge denied the motion, and the

defendant did not appeal.

     In November, 2016, the defendant, represented by counsel,

filed his second motion for relief from unlawful restraint

pursuant to Mass. R. Crim. P. 30 (a).    He argued that art. 26

prohibited the automatic application of any mandatory minimum
                                                                     7


sentence for a juvenile defendant.   He also argued that the

Commonwealth presented insufficient evidence that he was between

fourteen and seventeen years of age at the time of the crimes,

and that the trial judge failed to instruct the jury that they

were required to find the defendant's age within this range in

order to adjudicate him a youthful offender.   A different judge

of the Juvenile Court (the trial judge having retired) denied

the motion, concluding that the defendant's failure to raise

either argument at trial, on direct appeal, or in his first rule

30 motion constituted waiver.   After finding the defendant's

arguments waived, the judge nonetheless went on to consider

whether any of the claimed errors would give rise to a

miscarriage of justice.   The judge agreed that the jury heard

insufficient evidence of the defendant's age at the time of the

offenses and that the trial judge erred in failing to instruct

the jury that in order to adjudicate the defendant as a youthful

offender, they must find that the Commonwealth had proved that

he was between fourteen and seventeen years of age at the time

of the offenses.   Nevertheless, the motion judge found no risk

of a miscarriage of justice because, although she found that the

Commonwealth failed to submit sufficient evidence of the

defendant's age during its case-in-chief, the defendant

introduced evidence establishing that he was between fourteen

and seventeen years of age at the time of the crimes.    The judge
                                                                      8


further concluded that the sentencing judge's imposition of a

twenty-year mandatory minimum sentence was not automatic:    the

record demonstrated that she had considered the evidence

presented at trial and the probation department's presentence

report before imposing the mandatory minimum sentence.

     Discussion.    We review the denial of a motion for relief

from unlawful restraint brought under Mass. R. Crim. P. 30 (a)

for an abuse of discretion or error of law.    See Perez I, 477

Mass. at 681-682; Commonwealth v. Wright, 469 Mass. 447, 461

(2014).

     1.    Sufficiency of the evidence.   The defendant argues that

the evidence at trial was insufficient to sustain his

adjudication as a youthful offender, and therefore that his

motion for a required finding of not guilty should have been

allowed.    Specifically, the defendant challenges the sufficiency

of the evidence that he was between the ages of fourteen and

seventeen at the time of the offenses.    We consider this claim

to determine whether, viewing the evidence in the light most

favorable to the Commonwealth, any rational jury could have

found each of the elements of the offense beyond a reasonable

doubt.    Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

     In order for a juvenile to be adjudicated a youthful

offender, the Commonwealth must present sufficient evidence that

(1) the juvenile was between fourteen and seventeen years of age
                                                                     9


at the time of the offense; (2) the offense, if committed by an

adult, is punishable by imprisonment in State prison; and (3)

either the juvenile has previously been committed to DYS, the

alleged offense involves certain enumerated firearms violations,

or the alleged offense involves the infliction or threat of

serious bodily harm.    G. L. c. 119, § 54, as amended through St.

1996, c. 200, § 2. 4

     Here, the evidence introduced at trial concerning the

defendant's age was sufficient to support his adjudication as a

youthful offender.     During its case-in-chief, the Commonwealth

offered a fingerprint card bearing the defendant's name and date

of birth ("02/06/83"), and Fulia testified that the intruders

were "kids . . . [a]bout sixteen, seventeen, eighteen [at] the

most."   Accordingly, there was no error in the denial of the

defendant's motion for a required finding. 5


     4 The version of the youthful offender statute in effect at
the time of the defendant's offenses defined a "youthful
offender" as "a person who is subject to an adult or juvenile
sentence for having committed, while between the ages of
fourteen and seventeen, an offense against a law of the
commonwealth." G. L. c. 119, § 52, as amended through St. 1996,
c. 200, § 1. In 2013, the Legislature amended the definition of
a "youthful offender" to a person "between the ages of fourteen
and [eighteen] ." G. L. c. 119, § 54, as amended through St.
2013, 84, § 8.

     5 We agree with the motion judge's conclusion that Fulia's
testimony regarding the defendant's physical appearance, by
itself, would have been insufficient to support the defendant's
adjudication as a youthful offender. See Commonwealth v.
Pittman, 25 Mass. App. Ct. 25, 27 (1987) (physical appearance
                                                                    10


     2.     Jury instructions.   The defendant next contends that

the trial judge's jury instructions were erroneous because the

judge did not instruct the jury that if the defendant were to be

adjudicated a youthful offender, they must find that he was

between fourteen and seventeen years of age at the time of the

offenses.

     The judge instructed the jury only that the Commonwealth

was proceeding against the defendant "as a youthful offender."

The instruction should have informed the jury that the

Commonwealth was required to prove beyond a reasonable doubt the

requirements set forth in G. L. c. 119, § 54, including the

defendant's qualifying age at the time of the offenses.     See

G. L. c. 119, § 54; Commonwealth v. Quincy Q., 434 Mass. 859,

866 (2001).    The defendant did not object to the jury

instruction as given, and did not request any additional

instruction.    Thus, we review to determine whether this error

created a substantial risk of a miscarriage of justice.


may be considered as factor in discerning age, but judging age
on physical appearance alone is not sufficient). However,
Fulia's testimony, considered together with the fingerprint
chart bearing the defendant's age, was sufficient to satisfy the
Commonwealth's burden of proof on this element. We note that
the motion judge did not have the benefit of the fingerprint
chart bearing the defendant's age (exhibit no. 15) in ruling on
the defendant's motion. After the defendant's trial, that
exhibit was transferred to the Superior Court for the trial of
codefendant Artem Vaskanyan. When the fingerprint chart was
admitted at Vaskanyan's trial, the exhibit sticker identifying
the chart as Juvenile Court exhibit no. 15 was covered with a
Superior Court exhibit sticker.
                                                                   11


See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).    See

also Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 6-7 (2001)

(where defendant fails to object to jury instruction that omits

element of crime, appellate court considers whether omission

created substantial risk of miscarriage of justice).

     We conclude that the judge's omission in her instruction to

the jury does not warrant reversal.   At the close of the case,

the evidence showing that the defendant was between fourteen and

seventeen years of age at the time of the offenses was so

overwhelming that the defendant's age was not a contested issue

at trial.   See Quincy Q., 434 Mass. at 866.   Indeed, the

defendant himself presented documentary evidence that, at the

time of the offenses, he was sixteen years old.   Because there

is no likelihood that the omitted instruction materially

influenced the jury's verdicts, there was no substantial risk of

a miscarriage of justice.   See Commonwealth v. Gabbidon, 398

Mass. 1, 5 (1986) ("no harm accrues to a defendant if an error

does not relate to an issue actively contested at trial").

     3.   Constitutionality of the sentence.   The defendant was

sentenced prior to the issuance of the United States Supreme

Court's decision in Miller, 567 U.S. at 479, and our decisions

in Diatchenko, 466 Mass. at 667, and Perez I, 477 Mass. at 687.

     In Miller, 567 U.S. at 479, the Supreme Court held that the

Eighth Amendment to the United States Constitution prohibits
                                                                  12


sentencing juveniles to mandatory sentences of life imprisonment

without the possibility of parole.   The Court explained that the

sentencing judge must "have the ability to consider the

mitigating qualities of youth" rather than imposing a mandatory

sentence of life without parole (quotations and citation

omitted).   Id. at 476.   Three years later, in Diatchenko, 466

Mass. at 671, we held that art. 26, unlike its Federal

counterpart, prohibits not only mandatory life sentences, but

also discretionary juvenile sentences of life without the

possibility of parole.    After Diatchenko, supra, a juvenile

sentenced to life without the possibility of parole would be

eligible for parole after fifteen years.   See Commonwealth

v. Brown, 466 Mass. 676, 688-689 (2013), S.C., 474 Mass. 576

(2016).

     In Perez I, 477 Mass. at 682-687, we considered whether

art. 26 prohibits an aggregate term-of-years sentence for a

juvenile convicted of nonhomicide offenses with a longer period

of incarceration prior to eligibility for parole than that

applicable to a juvenile convicted of murder.   Applying the

tripartite test established in Cepulonis v. Commonwealth, 384

Mass. 495, 497-499 (1981), we held that

     "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
                                                                  13


     consider whether extraordinary circumstances warrant a
     sentence treating the juvenile defendant more harshly
     for parole purposes than a juvenile convicted of
     murder."

Perez I, supra at 686.   In determining whether extraordinary

circumstances justify a longer period of incarceration prior to

eligibility for parole, the judge must consider "(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" (quotations

omitted).   Id., quoting Miller, 567 U.S. at 477.    Not every

factor will necessarily be relevant in every case.    A sentencing

court exercising its discretion may afford whatever weight it

reasonably determines appropriate to each Miller factor in light

of the circumstances of the case.   See Perez I, supra.

     In Perez II, also decided today, we emphasized that under

the individualized sentencing process outlined in Perez I, 477

Mass. at 686:

     "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 history must also be considered independently;
     this consideration of the individual's personal and
     family history is also not the ordinary mitigation
                                                                    14


     analysis associated with sentencing. . . . [B]oth the
     crime and the juvenile's circumstances must be
     extraordinary to justify a longer parole eligibility
     period."

Perez II, 480 Mass. at     .   Although the Commonwealth need not

show that "the defendant exhibited 'irretrievable depravity' or

'irreparable corruption,'" id. at      , the Commonwealth must

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."    Id. at    .   In

other words, "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."    Id.

     The defendant in this case was sentenced to the mandatory

twenty-year minimum sentence under the armed home invasion

statute, G. L. c. 265, § 18C, without a Miller hearing.    Because

this is five years longer than the sentence applicable to a

juvenile convicted of murder in 2001, the presumption announced

in Perez I applies.   See Perez I , 477 Mass. at 685 ("[t]here is

a line between homicide and other serious violent offenses

against the individual. . . .   In the absence of extraordinary

circumstances, . . . this line must not be crossed to treat a

juvenile convicted of a nonmurder offense, or multiple nonmurder
                                                                  15


offenses, more harshly than a juvenile convicted of murder"

[quotations and citation omitted]). 6

      Where the mandatory minimum sentence imposed by statute

exceeds the parole eligibility for murder, by definition, the

sentencing judge is not afforded an opportunity to consider

the Miller factors as they relate to imposing a sentence below

the mandatory minimum.     See Perez I, 477 Mass. at 686 (requiring

individualized consideration of characteristics attendant to

youth before imposing integrated sentence with resulting parole

eligibility date in excess of that applicable for murder).

Because the defendant's sentence was imposed without "a finding

that the circumstances warrant treating the [defendant] more

harshly for parole purposes than a juvenile convicted of

murder," it is presumptively disproportionate under art.

26.   Id. at 679. 7   We therefore vacate the denial of the


      6Under the juvenile disproportionality test announced in
Perez I, 477 Mass. at 683-685, we examine first the "nature of
the offense and the offender," with regard to the degree of
danger present to society (citation omitted). Id. at 684.
Second, a comparison is made of the challenged sentence with
those imposed for juveniles convicted of more serious crimes.
Id. Third, the challenged sentence is compared with those
imposed for the same offense in other jurisdictions. Id. The
unique characteristics of a juvenile defendant "weigh more
heavily in the proportionality calculus" under art. 26. Id. at
683, citing Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655, 671 (2013), S.C., 471 Mass. 12 (2015).

      7The Commonwealth contends that the defendant's sentence is
not presumptively disproportionate under Perez I, 477 Mass. at
684, because, given the good conduct credits available at the
                                                                        16


defendant's rule 30 motion.        At resentencing, the judge may

impose a committed sentence with parole eligibility in excess of

fifteen years only after finding extraordinary circumstances

under the factors identified in Perez I, and clarified in Perez

II. 8       In addition, because the defendant was sentenced in 2001,

relevant evidence of the defendant's "particular attributes" of

youth include evidence of postconviction rehabilitation,

including any good behavior in prison since he was sentenced as

a juvenile.        This is consistent with "societal goals of

punishment, deterrence, protection of the public, and


time of the defendant's offenses, he would be eligible for
parole after serving fourteen and one-half years. See
G. L. c. 127, § 129D; G. L. c. 127, § 133; 120 Code Mass. Regs.
§ 200.02(2) (1997). See also Commonwealth v. Brown, 431 Mass.
772, 774 & n.6 (2000). We disagree. Although the defendant's
minimum twenty-year sentence under G. L. c. 265, § 18C, may be
reduced for "good conduct credits," Perez I, supra, focuses on
the parole eligibility date at the time of sentencing, not
future computation of "good time." Moreover, good conduct
programs are controlled by the Department of Correction, not the
sentencing judge.

        8
       A Juvenile Court judge has three dispositional choices
after a defendant is adjudicated a youthful offender: (1) a
sentence provided by law (i.e., an adult punishment for the
offense); (2) a combination sentence consisting of a commitment
to the Department of Youth Services (DYS) until the juvenile
reaches the age of twenty-one followed by a suspended adult
sentence; or (3) commitment to DYS until the age of twenty-one.
G. L. c. 119, § 58, third par. See Commonwealth v. Samuel S.,
476 Mass. 497, 503 (2017). We need not reach the issue, not
argued or briefed by the parties, whether the so-called Truth in
Sentencing Act, St. 1993, c. 432, § 11, which, inter alia,
amended G. L. c. 127, § 133, to prohibit imposition of a
suspended State prison sentence, bars the sentencing judge from
imposing a combination sentence pursuant to G. L. c. 119, § 58,
third par.
                                                                   17


rehabilitation" (quotations and citation omitted), Commonwealth

v. Costa, 472 Mass. 139, 147 (2015), as well as the heightened

capacity of juveniles for rehabilitation, Miller, 567 U.S. at

477-478.    See Pepper v. United States, 562 U.S. 476, 490-491

(2011) (court may impose lesser sentence based on postconviction

rehabilitation efforts).   If the sentencing judge imposes a

committed sentence, she may not impose a sentence below the

minimum twenty-year sentence required by statute for armed home

invasion.   Nonetheless, the defendant would be eligible for

parole after fifteen years absent a finding of extraordinary

circumstances.

     Conclusion.    For the foregoing reasons, the order denying

the defendant's rule 30 motion is vacated, and the matter is

remanded to the Juvenile Court for resentencing consistent with

this opinion.

                                     So ordered.
