Commonwealth v. Perez (Lawyers Weekly No. 10-142-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12251 COMMONWEALTH vs. FERNANDO PEREZ. Hampden. April 3, 2017. – August 25, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Constitutional Law, Sentence. Due Process of Law, Sentence. Practice, Criminal, Sentence. Indictments found and returned in the Superior Court Department on February 16 and March 2, 2001. Following review by the Appeals Court, 62 Mass. App. Ct. 912 (2004) and 67 Mass. App. Ct. 1116 (2006), a motion for resentencing, filed on March 7, 2016, was considered by Daniel A. Ford, J., and a motion for reconsideration was considered by him. The Supreme Judicial Court granted an application for direct appellate review. Elizabeth Caddick for the defendant. Elizabeth Dunphy Farris, Assistant District Attorney (Katherine E. McMahon, Assistant District Attorney, also present) for the Commonwealth. Merritt Schnipper, for Committee for Public Counsel Services, amicus curiae, submitted a brief. HINES, J. In the early morning hours of December 23, 2000, the juvenile defendant, Fernando Perez, who was then seventeen years of age, embarked on a crime spree in downtown Springfield. Accompanied by his adult uncle and armed with a handgun, the defendant committed two robberies, all within a span of thirty minutes. While attempting a third robbery, he shot the intended victim, a plain-clothed Springfield police officer. In November, 2001, a Superior Court jury convicted the defendant of armed robbery, armed assault with intent to rob, assault and battery by means of a dangerous weapon, and related firearms offenses. The judge sentenced the defendant to multiple concurrent and consecutive terms, resulting in an aggregate sentence of thirty-two and one-half years,[2] with parole eligibility after twenty-seven and one-half years. In 2015, after our decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), S.C., 471 Mass. 12 (2015), the defendant filed a motion for resentencing under Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), arguing that the aggregate sentence imposed violated the prohibition on cruel and unusual punishment under the Eighth Amendment to the United States Constitution, and the cognate provision of art. 26 of the Massachusetts Declaration of Rights, by requiring him to serve twelve and one-half years longer before parole eligibility than a juvenile defendant convicted of murder. He argued also […]