Diatcehnko v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-202-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11453 GREGORY DIATCHENKO vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[1] Suffolk. September 4, 2013. ‑ December 24, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Sentence, Cruel and unusual punishment, Parole, Retroactivity of judicial holding. Due Process of Law, Sentence, Parole. Parole. Retroactivity of Judicial Holding. Homicide. Practice, Criminal, Sentence, Parole, Retroactivity of judicial holding, Capital case. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013. The case was reported by Botsford, J. Benjamin H. Keehn, Committee for Public Counsel Services, for the petitioner. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. Amy L. Karangekis, Assistant Attorney General, for chair of the Massachusetts Parole Board & another. The following submitted briefs for amici curiae: Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District. Annie L. Owens, of the District of Columbia, & Emily R. Schulman for Massachusetts Association of Criminal Defense Lawyers & others. David J. Apfel & Kunal Pasricha for American Civil Liberties Union of Massachusetts & others. Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman for Citizens for Juvenile Justice & others. John J. Barter for Herby J. Caillot. SPINA, J. On the evening of May 9, 1981, Gregory Diatchenko, who was seventeen years old at the time, stabbed Thomas Wharf nine times as Wharf sat in his red Cadillac automobile near Kenmore Square in Boston. Wharf was pronounced dead at 10:40 P.M. A Superior Court jury convicted Diatchenko of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (armed robbery). He was sentenced to a mandatory term of life imprisonment without the possibility of parole, pursuant to G. L. c. 265, § 2.[2] On direct appeal, this court affirmed Diatchenko’s conviction. See Commonwealth v. Diatchenko, 387 Mass. 718, 719 (1982). Among other claims, we rejected his contention that his sentence violated the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.[3] Id. at 721-727. Diatchenko’s conviction thus became final.[4] Thirty years later, the United States Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012) […]