Ninety Six, LLC v. Wareham Fire District (Lawyers Weekly No. 11-018-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-1111 Appeals Court NINETY SIX, LLC vs. WAREHAM FIRE DISTRICT. No. 16-P-1111. Plymouth. September 12, 2017. – February 14, 2018. Present: Milkey, Hanlon, & Shin, JJ. Municipal Corporations, Water commissioners, Water installation fee. Real Property, Water. Water. Jurisdiction, Water charge. Subdivision Control, Municipal services. Taxation, Real estate tax: assessment. Zoning. Administrative Law, Exhaustion of remedies. Practice, Civil, Review of administrative action, Case stated. Civil action commenced in the Superior Court Department on June 22, 2010. The case was heard by Robert C. Cosgrove, J. David T. Gay for the plaintiff. John Allen Markey, Jr., for the defendant. SHIN, J. This appeal concerns the validity of water betterment assessments imposed by the Wareham fire district (district) on several large parcels of undeveloped land owned by the plaintiff. The district determined the amount of the assessments pursuant to G. L. c. 40, § 42K, which provides for a method of calculation based on “the total number of existing and potential water units to be served” by the new water mains, with “[p]otential water units . . . calculated on the basis of zoning in effect at the date of assessment.” Construing this language to allow consideration of the full development potential of the land, the district assessed the plaintiff’s property based on the maximum number of lots that could be created from each parcel, including the potential subdivision lots that each parcel could yield under the town of Wareham’s subdivision rules and regulations (subdivision rules). The plaintiff filed suit in Superior Court seeking, among other forms of relief, a declaratory judgment that the district misapplied G. L. c. 40, § 42K, by including potential subdivision lots in its calculation, rather than limiting the assessments to “approval not required” (ANR) lots.[1] After the parties submitted the matter for decision on a case stated basis, the judge found and declared that the “[d]istrict[] followed an appropriate method of calculating betterment assessments under G. L. c. 40, § 42K.”[2] The plaintiff appeals, raising three arguments: (1) that § 42K prohibited the district from assessing betterments on subdivision lots because the subdivision rules were adopted pursuant to the subdivision control law, G. L. c. 41, §§ 81K to 81GG, and not the Zoning Act, G. L. c. 40A; (2) that the enabling statute, G. L. c. 40, § 42G, prohibited the district from assessing betterments on land […]
Connor v. District Attorney for the Norfolk District (Lawyers Weekly No. 12-109-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 14-01322 MYLES J. CONNOR vs. DISTRICT ATTORNEY FOR THE NORFOLK DISTRICT MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR RECONSIDERATION The plaintiff, Myles J. Connor (“Connor”), brought this action for declaratory relief pursuant to G. L. c. 231A, seeking a declaration that he is the owner of certain property (“the Property”) which was seized by the District Attorney for the Norfolk District (“District Attorney”) during execution of a search warrant in 1985. On June 12, 2017, this Court denied the District Attorney’s motion for summary judgment. Now before the Court is the District Attorney’s motion for reconsideration. For the reasons contained herein, the motion for reconsideration is DENIED. BACKGROUND The facts surrounding how the District Attorney came to possess the Property, and Connor’s efforts to reclaim the Property, have already been described in detail in this Court’s earlier Decision and Order on Defendant’s Motion for Summary Judgment. Connor v. District Attorney for the Norfolk District, 2017 WL 2979108 (Mass. Super. 2017). Those facts are incorporated by reference into this decision. The District Attorney has submitted additional exhibits to supplement the summary judgment record. The additional exhibits include deposition testimony of Kathryn M. Perry-Dougan, who pled guilty to a charge of drug possession following the 1985 search of her apartment where the Quincy police seized drugs as well as the Property. DISCUSSION A party seeking reconsideration of a prior ruling must show newly discovered evidence, a change of circumstances, a change of law, or a plain error of fact or law in the original ruling. See Mass. R. Civ. P. 60(b); Audubon Hill South Condominium Assoc. v. Community Assoc. Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012). The District Attorney has shown none of these, nor has explained why arguments made in its motion for reconsideration were not made earlier. In its motion, the District Attorney re-hashes its argument that the doctrine of laches applies to Connor’s claim. The District Attorney has failed to point out any reason that would require reconsideration on this point. Fundamentally, the District Attorney’s argument remains flawed in that it is premised on the notion that the burden of initiating action in this case rested on the Plaintiff. It did not – the law places that burden squarely on the shoulders of the District Attorney. The District Attorney’s attempts to shift that burden are plainly misplaced. Even were the Court to leave this point aside and reconsider the laches argument, it would still conclude that the District Attorney is not entitled to prevail on summary judgement on this record. “Laches is […]
Essex Regional Retirement Board v. Justices of the Salem Division of the District Court Department of the Trial Court, et al. (Lawyers Weekly No. 11-086-17)
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 16-P-1158 Appeals Court ESSEX REGIONAL RETIREMENT BOARD vs. JUSTICES OF THE SALEM DIVISION OF THE DISTRICT COURT DEPARTMENT OF THE TRIAL COURT[1] & another.[2] No. 16-P-1158. Essex. March 8, 2017. – July 12, 2017. Present: Grainger, Blake, & Neyman, JJ.[3] Public Employment, Retirement, Forfeiture of pension. Police, Retirement. Pension. Constitutional Law, Public employment, Excessive fines clause. County, Retirement board. Practice, Civil, Action in nature of certiorari. District Court, Appeal to Superior Court. Civil action commenced in the Superior Court Department on July 14, 2015. The case was heard by James F. Lang, J., on motions for judgment on the pleadings. Michael Sacco for the plaintiff. Thomas C. Fallon for John Swallow. GRAINGER, J. The plaintiff, Essex Regional Retirement Board (board), appeals from a judgment allowing a motion for judgment on the pleadings in favor of defendant John Swallow. The board determined that Swallow’s convictions of various criminal offenses committed in October, 2012, while on administrative leave, render him ineligible to receive a retirement allowance pursuant to G. L. c. 32, § 15(4). We agree, and conclude that Swallow’s convictions fall within the purview of § 15(4). We remand the case for consideration of the constitutionality of the assessed penalty under the Eighth Amendment to the United States Constitution. Background. We summarize the procedural history and the underlying relevant facts which are undisputed. In June, 2012, Swallow was placed on administrative leave from his duties as a sergeant in the Manchester police department. At that time he was also suspended from a second job he held as a paramedic with Northeast Regional Ambulance Service. Although Swallow left his badge and his service handgun at the police station, his license to carry a firearm was not suspended at that point. After being placed on administrative leave, Swallow experienced significant depression and began drinking heavily on a daily basis. On the afternoon of October 26, 2012, Swallow was at home with his wife, Lauren Noonan. He was drinking heavily and the couple began arguing, initially because Noonan was concerned that Swallow might drive his car. The quarrel escalated; Noonan went to her bedroom and sat on the bed with one of her dogs. Swallow then entered the room with a .45 caliber handgun, and grabbed Noonan by the shirt. He began screaming […]
Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services, et al. v. Acting First Justice of the Lowell Division of the District Court Department (Lawyers Weekly No. 10-084-17)
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-12121 DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES & another[1] vs. ACTING FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT DEPARTMENT. Suffolk. November 9, 2016. – May 24, 2017. Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ. Committee for Public Counsel Services. District Court, Drug court session. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 23, 2016. The case was reported by Duffly, J. Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, also present) for the plaintiffs. Bethany L. Stevens for the defendant. HINES, J. This matter is before us on a reservation and report, by a single justice of this court, of a petition for relief under G. L. c. 211, § 3. The petition, brought by the Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services and the Deputy Chief Counsel for the Private Counsel Division of the Committee for Public Counsel Services (collectively CPCS), sought an order affirming CPCS’s independent authority under G. L. c. 211D to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court). The issue arose after the Acting First Justice of the Lowell District Court (Justice), citing the need for a “team” approach to cases in the drug Court, removed CPCS attorneys from drug court cases to which they had been assigned and excluded CPCS attorneys from assignment to any new case in the drug court. The single justice, in her reservation and report, observed that “the matter raises some important legal questions that ought to be decided by the full court, concerning specialty courts in general and adult drug courts in particular, and the respective roles and responsibilities of judges, [CPCS], and individual defense attorneys.” The issue highlights the tension that may arise between an attorney’s duty to zealously advocate for the rights of the drug court defendant and a drug court model that favors a collaborative and nonadversarial approach to supervision of the drug court defendant. We recognize that the success of drug court outcomes depends in large part […]
Howell v. Brockton Division of the District Court Department (Lawyers Weekly No. 10-068-17)
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-12217 CURTIS HOWELL vs. BROCKTON DIVISION OF THE DISTRICT COURT DEPARTMENT. Supreme Judicial Court, Superintendence of inferior courts. May 3, 2017. Curtis Howell appeals from a judgment of the county court in which the single justice declined to grant his petition for relief under G. L. c. 211, § 3. His petition and other papers, which are disorganized and difficult to decipher, apparently relate to proceedings to evaluate his competency to stand trial on criminal charges in the District Court. We affirm. The case is before us on Howell’s memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a party challenging an interlocutory ruling of the trial court to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Howell has not carried his burden under the rule. In his memorandum, rather than demonstrating that the District Court judge has made a ruling that cannot be remedied in the ordinary appellate process or by other means, he presses an unsubstantiated claim that he has been subjected to unlawful surveillance since childhood by means of an implanted device. In particular, he does not offer any reason why G. L. c. 123, § 17, which permits any person found incompetent to stand trial to petition the court at any time for a competency hearing, does not afford adequate review of a determination of incompetency. Moreover, we have thoroughly reviewed the papers submitted to the single justice and find no basis to disturb her determination that Howell is not entitled to relief.[1] Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Curtis Howell, pro se. [1] There is some suggestion that Howell may have been represented by counsel in the District Court. He proceeded pro se in the county court. “Absent extraordinary circumstances, a party represented by counsel in pending criminal proceedings is not entitled to challenge interlocutory rulings pro se.” Azubuko v. Commonwealth, 464 Mass. 1014, 1014 (2013), citing Commonwealth v Molino, 411 Mass. 149, 152 (1991). Full-text Opinions
Bridgeman, et al. v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-014-17)
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-12157 KEVIN BRIDGEMAN & others[1] vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[2] Suffolk. November 16, 2016. – January 18, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Controlled Substances. Constitutional Law, Conduct of government agents. Due Process of Law, Disclosure of evidence, Presumption. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Postconviction relief, Conduct of government agents, Disclosure of evidence, Plea, New trial. Evidence, Certificate of drug analysis, Disclosure of evidence. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 9, 2014. The case was reported by Botsford, J. Matthew R. Segal (Daniel N. Marx, Adriana LaFaille, & Carlton E. Williams also present) for the petitioners. Benjamin H. Keehn, Committee for Public Counsel Services (Nancy J. Caplan & Eric Brandt, Committee for Public Counsel Services, also present) for Committee for Public Counsel Services. Quentin R. Weld, Assistant District Attorney, for District Attorney for the Essex District. Susanne M. O’Neil, Assistant District Attorney, for District Attorney for the Norfolk District. Vincent J. DeMore, Assistant District Attorney, for District Attorney for the Suffolk District. The following were present but did not argue: Robert J. Bender & Hallie White Speight, Assistant District Attorneys, for District Attorney for the Middlesex District. Gail M. McKenna, Assistant District Attorney, for District Attorney for the Plymouth District. Brian S. Glenny, Assistant District Attorney, for District Attorney for the Cape & Islands District. Aaron M. Katz, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae. The following submitted briefs for amici curiae: Joseph S. Dowdy & Christine C. Mumma, of North Carolina, John Roddy, & Denise McWilliams for New England Innocence Project & another. Janet Moore, of Ohio, & Patricia A. DeJuneas for National Association for Public Defense. Anthony A. Scibelli & Elizabeth A. Ritvo for Boston Bar Association. Daniel K. Gelb, Chauncy B. Wood, Naveen Ganesh, & Peter Walkingshaw for National Association of Criminal Defense Lawyers & another. GANTS, C.J. We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab). In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, […]
Charbonneau v. Presiding Justice of the Holyoke Division of the District Court Department (Lawyers Weekly No. 10-009-16)
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-11908 JOSHUA CHARBONNEAU vs. PRESIDING JUSTICE OF THE HOLYOKE DIVISION OF THE DISTRICT COURT DEPARTMENT. Suffolk. October 8, 2015. – January 22, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Supreme Judicial Court, Superintendence of inferior courts. District Court. Practice, Criminal, Plea. Statute, Construction. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 13, 2015. The case was reported by Botsford, J. Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, with him) for the plaintiff. Susanne G. Reardon, Assistant Attorney General, for the defendant. William C. Newman, Chauncey B. Wood, & Joseph N. Schneiderman, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. HINES, J. In this appeal, we determine whether a standing order of the Holyoke Division of the District Court Department (Holyoke District Court), prohibiting the tender of a so-called “defendant-capped” plea on the day of trial, contravenes the guilty plea procedure mandated in G. L. c. 278, § 18, and Mass. R. Crim. P. 12, as appearing in 442 Mass. 1511 (2004). Joshua Charbonneau, who stands charged in the Holyoke District Court with larceny over $ 250, challenges the standing order on statutory and constitutional grounds. He contends that the standing order violates his right to tender a defendant-capped plea at any time prior to trial because neither G. L. c. 278, § 18, nor Mass. R. Crim. P. 12 imposes a time limit on such tenders. He also asserts that the judicially imposed time limit unconstitutionally burdens his right to due process. We conclude that the standing order conflicts with and impairs a defendant’s right to tender a defendant-capped plea as provided in G. L. c. 278, § 18, and Mass. R. Crim. P. 12. Consequently, we vacate the standing order on that ground and bypass Charbonneau’s constitutional claim.[1] 1. Background. On February 19, 2015, the presiding justice of the Holyoke District Court[2] (presiding justice) promulgated a standing order applicable to trials beginning with the June, 2015, jury-of-six session. In accordance with the standing order, a defendant who intended to proffer a defendant-capped plea was required to do so at the final pretrial status conference which, in the Holyoke District Court, is scheduled for the Wednesday two weeks prior to […]
Shipps v. District Attorney for the Norfolk District (Lawyers Weekly No. 10-111-15)
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-11733 WILLIAM M. SHIPPS, JR. vs. DISTRICT ATTORNEY FOR THE NORFOLK DISTRICT. July 6, 2015. Declaratory Relief. Practice, Criminal, Capital case, Sentence. William M. Shipps, Jr., filed a complaint in the county court in 2014, pursuant to G. L. c. 231A, seeking a declaration that his sentences for murder in the first degree under G. L. c. 265, § 2, as amended by St. 1979, c. 488, § 2, which were imposed thirty years earlier, are unconstitutional. A single justice of this court dismissed the complaint. We affirm. In 1984, Shipps was convicted of two indictments charging murder in the first degree and other crimes. He was sentenced on the murder convictions to two consecutive life terms in State prison without the possibility of parole, and to four concurrent life terms on the remaining convictions. Commonwealth v. Shipps, 399 Mass. 820 (1987). Thereafter, Shipps filed three motions seeking a new trial in the Superior Court, all of which were denied. Commonwealth v. Shipps, 440 Mass. 1018, 1019 (2003), cert. denied, 541 U.S. 910 (2004). A single justice of this court denied leave to appeal from the ruling on the third motion, pursuant to the “gatekeeper” provision of G. L. c. 278, § 33E, and we dismissed Shipps’s appeal from that ruling. Id. 1. In 2014, Shipps filed a complaint for declaratory relief in the county court, seeking a determination that the imposition of his sentence (indeed, any sentence at all) for his convictions of murder in the first degree violated the ex post facto and due process clauses of the United States Constitution because the sentencing statute applicable at the time of his offenses, G. L. c. 265, § 2, as amended by St. 1979, c. 488, § 2, provided for no penalty other than death, which by the time of his offenses had been ruled unconstitutional. See District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980). It is well established that declaratory relief ordinarily is not available in the context of pending criminal cases. Id. at 659. Similarly, a complaint seeking declaratory relief may not be used postconviction to avoid the gatekeeper provision of G. L. c. 278, § 33E, or to challenge the legality of a sentence by contesting the constitutionality of the statute under which the plaintiff (the defendant in the underlying criminal case) was sentenced. […]
Bridgeman v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-082-15)
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-11764 KEVIN BRIDGEMAN & others[1] vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & another.[2] Suffolk. January 8, 2015. – May 18, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Controlled Substances. Constitutional Law, Plea, Conduct of government agents, Judicial review, Sentence, Delay in commencement of prosecution. Due Process of Law, Plea, Sentence, Delay in commencement of prosecution, Intervention in civil action. Committee for Public Counsel Services. Attorney at Law, Attorney as witness. Practice, Criminal, Plea, Postconviction relief, New trial, Sentence, Delay in commencement of prosecution, Conduct of government agents, Cross-examination by prosecutor. Evidence, Guilty plea, Certificate of drug analysis, Disclosure of evidence, Cross-examination. Supreme Judicial Court, Superintendence of inferior courts. Practice, Civil, Intervention. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on January 9, 2014. The case was reported by Botsford, J. Matthew R. Segal (Daniel N. Marx with him) for the petitioners. Benjamin H. Keehn, Committee for Public Counsel Services (Nancy J. Caplan, Committee for Public Counsel Services, with him) for the intervener. Vincent J. DeMore, Assistant District Attorney, for District Attorney for the Suffolk District. Quentin Weld, Assistant District Attorney, for District Attorney for the Essex District. Jean-Jacques Cabou, of Arizona; Joanna Perini-Abbott, of Oregon; & Daniel Gelb & Elizabeth A. Lunt, for National Association of Criminal Defense Lawyers & another, amici curiae, submitted a brief. Richard Marshall, of New York, & Aaron M. Katz, C. Thomas Brown, Mark Vaughn, & Barbara J. Dougan, for Families Against Mandatory Minimums & others, amici curiae, submitted a brief. SPINA, J. The present case is the latest in a series of cases concerning the egregious misconduct of Annie Dookhan, a chemist who was employed in the forensic drug laboratory of the William A. Hinton State Laboratory Institute (Hinton drug lab) from 2003 until 2012.[3] Kevin Bridgeman, Yasir Creach, and Miguel Cuevas (collectively, the petitioners) are three individuals who pleaded guilty to various drug offenses in cases where Dookhan signed the certificates of drug analysis (drug certificates) on the line labeled “Assistant Analyst.” On January 9, 2014, prior to this court’s decision in Commonwealth v. Scott, 467 Mass. 336 (2014), the petitioners filed a petition in the county court pursuant to G. L. c. 211, § 3, asking the court for two forms of relief. […]
Diatchenko, et al. District Attorney for the Suffolk District, et al.; Commonwealth v. Roberio (Lawyers Weekly No. 10-046-15)
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-11688 SJC-11689 GREGORY DIATCHENKO & another[1] vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[2] COMMONWEALTH vs. JEFFREY S. ROBERIO. Suffolk. November 6, 2014. – March 23, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Sentence, Parole, Assistance of counsel, Judicial review. Due Process of Law, Sentence, Parole, Assistance of counsel. Parole. Practice, Criminal, Sentence, Parole, Assistance of counsel. Witness, Expert. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013. The case was reported by Botsford, J. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 10, 2014. The case was reported by Botsford, J. Benjamin H. Keehn, Committee for Public Counsel Services, for Gregory Diatchenko & another. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. Amy L. Karangekis, Assistant Attorney General, for Massachusetts Parole Board. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. The following submitted briefs for amici curiae: Kenneth J. Parsigian for Citizens for Juvenile Justice & others. David J. Apfel, Kristen A. Kearney, Kunal Pasricha, & Katherine Connolly Sadeck for Campaign for the Fair Sentencing of Youth & others. Afton M. Templin for Massachusetts Association of Criminal Defense Lawyers. BOTSFORD, J. In Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), this court considered the constitutionality of a life sentence without parole when applied to a juvenile homicide offender,[3] and, following Miller v. Alabama, 132 S. Ct. 2455 (2012), determined that the mandatory imposition of such a sentence violates the prohibition against cruel and unusual punishments in the Eighth Amendment to the United States Constitution as well as art. 26 of the Massachusetts Declaration of Rights.[4] Diatchenko I, supra at 668. The court held that a juvenile homicide offender who is convicted of murder in the first degree and receives a mandatory sentence of life in prison must be afforded a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” and this opportunity must come through consideration for release on parole. Id. at 674, quoting Graham v. Florida, 560 U.S. 48, 75 (2010). The court’s opinion in Diatchenko I has given rise to questions concerning how the opportunity for release […]
Categories: News Tags: 1004615, attorney, Commonwealth, Diatchenko, District, Lawyers, Roberio, Suffolk, Weekly