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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]

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