Clerk: SJC-13035, Commonwealth V Sunil Sharma.
-: Great, who's first?
-: I am, good morning, Your Honor.
May it please the Court,
my name is Emma Quinn-Judge,
and I represent Defendant-Appellant Sunil Sharma.
Mr. Sharma is seeking resentencing
applying the Miller factors
the same opportunity that this Court has provided
for all other juveniles sentenced before Miller
with aggregate parole eligibility dates
longer than 15 years.
Mr. Sharma has three distinct arguments
for why he should get this relief.
First that proportionality and equal protection
concerns require resentencing.
Second, that this Court's decisions
in Costa and Wiggins require resentencing,
because like the sentencing judges
in those matters, Mr. Sharma's sentencing judge
exercised discretion without the benefit of Miller.
And third, the changes in our understanding
of juvenile brain science
or newly discovered evidence pursuant to Rule 30 b
that likewise require a new sentencing hearing.
Miller is not offense specific,
juvenile offenders are as this Court said in Diatchenko,
constitutionally different from adults.
They have diminished culpability
and greater prospects for reform,
and therefore don't deserve the most severe punishments.
Miller said the sentencing for juveniles has to be graduated
in proportion, to both the offender and the offense.
And in the first Perez decision, this Court emphasized
that Massachusetts departs from the 8th Amendment,
under Article 26, by focusing more on
the unique characteristics of juvenile offenders,
when weighing proportionality.
So for those individuals sentenced before Miller,
for those juvenile offenders sentenced before-
-: But he's getting the benefit of Miller,
in the sense that he's got a second degree.
So we're working from 15, right?
We're not working from more than 15.
We're working for 15 plus the time
on the other offenses, correct?
-: That's correct, his aggregate parole eligibility date
is 22 years.
-: And don't you win because of Dinkins.
I mean, don't you...
Isn't there a simpler way to where you're going here?
Dinkins says you add the two timeframes.
So 15 plus seven right,
and he's sentenced in 1996.
So isn't he eligible for parole under Dinkins in 2018
is that right?
-: Right, so there are two sets of answers
to the Dinkins issue, right?
One is the practical one,
which is- -: We always like
practical here don't we?
-: Yeah, (laughs) understood.
-: Yes- -: So Mr. Sharma hasn't
yet been released.
His new parole eligibility date, as you know,
should be in July 2018.
How the Parole Board is going to apply Dinkins
to individuals who were paroled before the Dinkins decision
is still a question that's being determined,
and the other juvenile ib the Dinkins case, Eugene Ivy,
who's similarly situated to Mr. Sharma in this respect
because he got a positive parole vote
after his new aggregate eligibility date.
Filed a petition with a single justice last night
for declaratory relief in Mandamus.
Because there are some questions about how the Parole Board
is applying Dinkins to individuals
in Mr. Sharma's situation.
It's my argument and my (chuckles) understanding of Dinkins,
certainly that Mr. Sharma
is now parole eligible on everything
and has in fact been paroled on everything
because his positive parole vote from the Parole Board
finding that he was rehabilitated
came after what is now his aggregate eligibility date.
-: It is a tiny bit complicated, right,
because when the Parole Board did this
they thought he was just going to be (chuckles)
kept in prison, right, for another seven years.
I'm not sure they should have considered that,
but this does present a sort of a complexity.
We shouldn't, even if Dinkins is controlling,
shouldn't we be sending it back
to the Parole Board.
-: But- -: to reconsider this for,
-: So- -: I guess the trial court
to reconsider this.
-: Right, so there's the Dinkins issue as, I mean,
I think what the Court said in Dinkins is that,
when the Parole Board conducted
these multiple hearings sort of the old system,
they were always using the same standard for rehabilitation.
And that's part of why having all these hearings
and Dinkins was duplicative.
So I understand that we're still figuring out
how the Parole Board is gonna interpret Dinkins,
but I think there's a strong argument
that he should be parole eligible.
The other issue though,
and the reason this is all still relevant,
is that the legality of Mr Sharma's sentence
and his opportunity for parole are two different things.
This Court said in Lutskov that proportionality turns on
the parole eligibility date at the time of sentencing,
not future computation of good time,
which is controlled by the DOC.
The (indistinct)- -: But don't you have
a tough time...
I mean, I understand you wanna take on this bigger issue,
but don't you have a tough time here
'cause the judge understood,
unlike in the other context, the judge understood
that this person would be parole eligible
for the murder in 15 years.
And still felt the need to add,
a consecutive rather than a concurrent sentence
given for a variety of reasons.
So it's not like all the first three murder cases
that you cite,
because it wasn't conjectural or sort of meaningless,
it actually was considered and thought about.
-: Right, and that I think goes only to the question
about whether Costa is the right path for resentencing.
And the reason I think Costa is a viable path,
and that's the first degree said case
involving consecutive life sentences,
and then Wiggins which followed that.
The reason I think that is a viable path
is because the same thing is true here
is what the Court said about Costa,
which is that we cannot know that the judge
would have imposed consecutive sentences,
had he known about the effect of that decision,
this was referring to Diatchenko,
would ultimately have or had he known
about the constitutional differences
that separate juvenile offenders from adults.
So the judge who sentenced Mr. Sharma didn't know
as a matter of constitutional law
that juveniles have to be sentenced differently,
and he couldn't calibrate his sentence.
He couldn't calibrate it appropriately
to first degree sentences
because at the time if he was comparing Mr. Sharma
to first degree offenders, he was comparing Mr. Sharma,
to individuals who are gonna get life sentences.
He didn't know that those individuals,
those other juveniles were gonna get 15 year sentences.
So he was missing some pretty critical information
when he exercised his discretion.
But I think that the issue that you're raising
really only goes to that Costa argument.
I don't think it goes to the question of proportionality,
because when we look at proportionality
and we look at the three factors in Cepulonis,
this Court in Perez made clear that those factors
in the case of a juvenile have to be supplemented
with greater weight given to the juvenile defendant's age.
And so that's really the first factor,
the nature of the offense and the offender
in light of the degree of harm to society.
And in Perez, this Court said that that test
cannot be satisfied without considering Miller.
And therefore adopted this presumption
for any non-homicide offenses longer than 15 years.
Which I would urge this Court to adopt here,
more broadly, for any individual, for any juvenile sentence
before Miller to more than 15 years.
The underlying case in Perez, is one involving,
one where the sentencing was in fact conducted
by a judge who had expert testimony about the defendant,
and who took into account the defendants youth.
And yet the judge in Perez, not the judge,
this Court in Perez still said
that Mr. Perez had to be resentenced
because the judge didn't have what we learned in Miller,
that the juveniles are constitutionally different.
And he didn't have the benefit
of the updated brain science,
that has also led to the changes in our jurisprudence.
So even though the judge there considered everything
that was not considered in Mr Sharma's case,
this Court still said that resentencing was appropriate.
But even if you're not adopting the presumption from Perez
just sticking with that first factor
about the nature of the offense and the offender,
Mr. Sharma has the sorts of characteristics
that courts have looked at before.
First of all he has this...
Miller talks about the potential for rehabilitation.
Well the Parole Board found that he was rehabilitated.
And that's pretty strong evidence
of his potential for rehabilitation.
But looking at his childhood,
he has really attachment disruption, sadistic abuse.
I mean he has this sort of horrific upbringing,
the courts have recognized in prior instances,
change how we think about juvenile culpability.
The forensic report in this case noted that
these sorts of things in your upbringing
have a long lasting impact on development,
including emotional control and executive functioning.
He was heavily influenced by his peers.
He engaged in impulsive behavior
with impaired problem-solving- -: Excuse me, Counsel,
Counsel I understand.
I understand that can mitigate in favor of a juvenile.
But one thing that is of concern is that
sometimes those effects can also affect rehabilitation
and preclude a good rehabilitation,
and actually create a person who,
or influence a person to the point where
they are unable to rehabilitate.
So that could work both ways can't it?
-: Right, and I think that's why the relief
that this Court has granted in all the other situations
for first degrees, for first degrees
with consecutive offenses
for long non-homicide offenses,
is really resentencing.
This Court has been sending things back for that analysis,
precisely that analysis in front of the trial court.
So for example in Mr. LaPlante's situation
where he had three consecutive life sentences,
he was granted resentencing,
but when he was resentenced,
the trial court reimposed the original sentence
of three consecutive life sentences,
and this Court upheld that.
But the thing there was that Mr. LaPlante
had had the opportunity,
of someone doing the Miller analysis
specifically for him after Miller.
And that's something Mr. Sharma has never had,
and, you know, our proportionality jurisprudence
which focuses so heavily on the unique characteristics
of the defendant,
I think, you know, strongly suggest that in this situation
you also have to find that the sentence is disproportionate,
as compared also to individuals
who were sentenced for first degree murder,
because those individuals
are now eligible for 15-year sentences.
Including for example Mr. Costa,
who originally had two consecutive life sentences,
and a crime that the sentencing judge there
had originally described as tantamount
to execution by firing squad.
But he got an opportunity for resentencing under Miller,
and he got an opportunity for a judge to look at him,
and exactly that question that Justice Cypher is raising,
you know, what's his state now?
What's his potential for rehabilitation?
And it's different for every juvenile
because we recognize that their traits are transitory,
and we recognize that they are changeable.
And so we treat them individually,
and there's no reason to exclude
second degree offenders with consecutive sentences
from this group.
Every other group who has received longer than 15 years
has had the opportunity for resentencing,
and it cannot be that both those
that have more serious sentences,
and those that have less serious sentences
should get the opportunity for resentencing,
but this one cohort in middle should be sort of
dropped out or left out.
I think all of them- -: Ms. Quinn-Judge,
if I could ask you, if that's right
we only need one reason,
we don't need three reasons for resentencing.
And we try not to reach constitutional issues
when we don't have to.
And your argument on the Costa,
tell me if I have this right.
Your argument under Costa is when the judge sentenced here,
from and after the second degree,
that judge, number one, didn't know that that was gonna
end up being a sentence longer than somebody
would receive as a juvenile for first degree.
And number two, didn't have all the information necessary
to take into account adolescent brain development.
And therefore under Costa,
not a constitutional analysis, under Costa
there should be a resentencing.
Is that your argument?
-: That's my argument
under Costa and Wiggins, that's correct.
And I also have a third argument under Rule 30 b,
which is that he's eligible for resentencing based on
the newly discovered evidence,
you know, the juvenile brain development evidence
that we've been discussing in the Commonwealth
concedes that is newly discovered.
And really doesn't actually challenge my showing
that it would have made a difference
under the circumstances.
The Commonwealth simply argues
that his sentence wasn't disproportionate,
but that's not a response to the 30 b standard,
which looks to whether the newly discovered evidence
would probably have been a real factor in this case.
And again I mean, that's an issue
where of course it would apply more broadly
to other groups of juveniles,
but this Court has already addressed all those other groups.
This Court has addressed the more serious offenses,
and the less serious offenses.
And so I don't think it's opening the door more broadly
to a new group of juveniles
who were sentenced before Miller.
It's really just addressing those who've missed out
which are these second degree offenders
who have consecutive sentences.
So I think there are, you know, I identified three routes
because I think there are three potential routes
in the case law but obviously
you don't have to adopt all three of them.
I think the essential relief
under all of them is resentencing, with one exception.
I would note that in Perez II,
this Court did say,
that where there's a presumption of disproportionality,
and the Commonwealth has no hope of showing
that this is an individual
who has no potential for rehabilitation,
then this Court can itself amend the sentence.
And in that, in Perez II,
the Court did amend the concurrent sentence,
because it concluded that the Commonwealth hedged no hope
of showing that there was no chance of rehabilitation.
Here we have a rehabilitation finding from the Parole Board,
which I think weighs very heavily when you're looking
at what it means to have a potential for rehabilitation.
So what Mr. Sharma is seeking
is just the opportunity, really,
to be treated the same way as
all other individuals sentenced before Miller,
who have received these lengthy sentences,
longer than 15 years.
And I think there's, you know, both no rational basis,
I think it's disproportionate,
but as I've noted there are
nonconstitutional ways of getting there.
But I think this is the one remaining cohort,
where these issues are outstanding and this Court
should follow its previous cases
and apply Miller to this group,
and give them the same opportunity
to be examined individually.
-: Any other questions?
Okay great thank you so much, Attorney Linn.
-: Good morning, Your Honors.
May it please the Court, Paul Linn for the Commonwealth.
(coughing) Excuse me.
The Commonwealth does concede that there is new evidence
regarding the mental development of juveniles,
but it's not categorically new evidence.
The premise that juvenile offenders
should be treated differently than adult offenders
has been the very foundation
of the juvenile justice system for over a century.
And that's why the Commonwealth is arguing
that the sentence is legal.
The real (coughing) import of the new science
is that it shows that juvenile offenders are more amenable
to rehabilitation than adult offenders.
And that is what led to Miller and Diatchenko,
which is that you cannot,
and under Massachusetts law you absolutely cannot,
sentence a juvenile offender
to life in prison without the possibility of parole.
But the courts have never said that every single juvenile,
is entitled to resentencing based on this new information.
For example, a juvenile offender who is sentenced
to 15 to 20 years for non-homicide offenses,
is not entitled to a Miller hearing.
A juvenile offender sentenced under the 2015 laws
to a mandatory term of 30 years in prison,
from first degree murder with extreme atrocity or cruelty,
is not even entitled to consideration
of the Miller factors, that's a mandatory minimum sentence.
And here the defendant's sentence is legal
under both Diatchenko and Perez II.
It doesn't violate Diatchenko,
because the defendant has a meaningful opportunity
for release on parole.
He is currently eligible for
release on parole- -: But if he been convicted
of first degree murder,
with a subsequent sentence of seven years,
he'd be entitled to resentencing, right?
-: That is correct, yes, because that will be
-: It's- -: an illegal sentence.
-: So its a little odd that someone who is convicted
of second degree murder
with a subsequent consecutive sentence
of seven years is not, right?
-: It's odd- -: So 'cause probably
part of what we are looking for
is proportionality and consistency,
and it just seems ah,
that we're not gonna allow this resentencing.
And then when we combine it with Dinkins,
which says he's absolutely entitled to it, right?
I mean, how do you get around Dinkins?
I just, I don't know what we're arguing about here.
it just seems like this person has to be resentenced
on multiple grounds, but how do you distinguish Dinkins?
-: No Dinkins actually makes this issue largely academic,
because under Dinkins, Dinkins had to do with
the calculation
by the Parole Board of a sentence.
So and when this case started-
-: But doesn't Dinkins and also say
that when we have a consecutive sentence like this,
we have to have one parole date.
-: Correct. -: So,
and in this case that's 2018.
-: That's correct. -: So he's entitled to,
he's three years overdue on his parole hearing
under this sentence, isn't he, under Dinkins?
Or I'm misunderstanding something?
-: Well he's three years overdue
for being considered for release.
-: Right, so, -: Yeah he gets the question,
he did get a parole hearing. isn't that-
-: But isn't he...
This sentence he's got, which doesn't make him eligible
for parole until seven years, 2025 or whatever is,
can't be right anymore, right?
-: No but its not- -: Don't we have to declare-
Don't we have to -: That's-
-: send him back for resentencing.
I mean for- -: Absolutely not,
because under the sentence that he received,
-: Mm-hmm. -: under the guidelines that,
or under the regulations
that this Court interpreted Dinkins,
that change in the regulation on how the sentence
is calculated by the Parole Board,
makes him immediately eligible for parole.
This isn't a situation in which
we need to change his sentence,
to make it comply with Dinkins.
It already, I mean, now granted as my sister said,
there seems to be some lack of clarity as to what,
how the Parole Board is interpreting Dinkins.
But it's my position as well as my sister's,
that Dinkins is clear,
that the Dinkins says that
you can't use the regulation
on which the Parole Board was relying
to keep a person in prison after they've already been
determined to be eligible for release on parole.
It just makes no sense there's only one standard,
the Parole Board should be considering,
and that's whether a person is eligible
for release from prison.
-: Right. -: So under Dinkins,
as I read Dinkins,
the defendant is immediately eligible
for release on parole,
regardless of whether he is resentenced.
It's just a matter of considering whether or not
he should be released.
And as my sister points out, the Parole Board has already
found that he has been rehabilitated
so it would be a very interesting situation
unless something has changed dramatically,
that they would not grant him release from-
-: What does the Commonwealth want us to rule here?
If we all agree that he's immediately entitled
to a parole hearing,
what do you want us to say in this decision?
'Cause, or do you want us to say that the judge shouldn't,
I mean that the Parole Board...
I'm just trying to figure out what you want us to rule.
-: The Parole Board is irrelevant to the issues on this case.
Scott: Mm-hmm.
The only thing that the Parole Board regulations did
was determined how the Parole Board calculated his sentence.
What the Commonwealth is asking this Court to do
is to rule that the trial court judge was correct
in denying the defendant's motion
to correct and legal sentence.
-: Right okay, so you want us...
Then we have to decide what Ms. Quinn-Judge calls
the Costa the issues whether- -: Right.
-: Because the judge did not sentence
with the knowledge of Miller and didn't consider
the rehabilitative capacities of juveniles
whether, and you say we don't have to do that.
Costa in our case, so we don't require that,
is that what you're saying?
-: That's my possession.
The mere fact that a defendant
convicted of second degree murder,
is punished in an individual case more harshly
than a person convicted of first degree murder,
is not necessarily illegal,
even under the law, as it stands today,
under Perez II, and Diatchenko, and Miller.
You can have a situation in which-
-: So we have a judge who's done a sentence
-: Mm-hmm. -: that doesn't take
into account the juvenile science about rehabilitation.
That sentence is a second degree murderer,
more harshly than a first degree murderer
in the similar circumstances.
Does not really make sense?
Does the Commonwealth really want us to do that?
-: Yes we do!
And the reason -: Okay.
-: is rather simple.
In cases like Wiggins and Costa,
this Court emphasized that the real problem
was that prior to Miller,
the determination of whether sentences for...
Well, let me put it this way.
Before Miller, once a juvenile offender was sentenced
to life in prison without the possibility of parole,
any other sentence he got was was largely symbolic
because the assumption was that he was never going to get
out of prison, on his sentence of life without parole.
-: Mm-hmm. -: Here the judge,
even though he didn't have the benefit
of the most up-to-date science,
knew that this defendant
was going to be eligible for parole after 22 years.
So he absolutely considered
the juvenile's amenability to rehabilitation,
because he knew that the defendant
would actually have an opportunity
to get out of prison after 15 years,
if he sentenced the defendant to concurrent sentences.
So he made this decision he said,
"I believe this defendant needs,
"as a practical matter,
"to serve more than 15 years in this case."
-: But, but- -: And he also
crafted a sentence in which- -: But did he also-
But in terms of proportionality of sentences,
which judges always wanna consider, he's saying to himself,
"If this guy had been convicted of first degree murder,
and not pled guilty, he wasn't getting out at all forever.
And so his sentence is proportionate in that context
but not in proportion not under the current structure,
it's disproportionate, isn't it?
-: It certainly is that the circumstances have changed,
but I don't think that necessarily makes
the sentences disproportionate,
especially where the defendant agreed to them.
And the case law is clear
the defendant is not entitled,
to reconsider a plea simply because
the law changed in the interim.
So the Commonwealth still stands by the position,
and this is a perfectly legal sentence,
regardless of the fact that the law changed in the interim.
And I also, as I pointed out in my brief,
one thing that the defendant avoided here,
by pleading guilty to second degree murder,
was the prospect of spending 13 years in prison
between the sentencing
or in the Supreme Court's decision in Miller,
believing that he was going to die in prison,
with no hope of getting out.
So it's certainly not- -: No,
it's a little bizarre that
because the law was, I mean (chuckles)
I don't know, I get it Mr. Linn,
we get it- -: No, I understand
-: Yeah, (voice indistinct). -: that it does seem odd
but I don't think odd translates to illegal.
-: Mm-hmm. -: And I think
I can give you an example, even under today's law,
it would be entirely within,
again, let me say it would be within a judge's discretion
when faced with two defendants,
let's say two different cases.
And one defendant was convicted of two counts
of second degree murder.
And the other defendant was convicted
of two counts of first degree murder.
And the judge determined
based on all the circumstances of the case,
that the defendant convicted of the two counts
of second degree murder should get consecutive sentences.
But based on the individual circumstances
the defendant convicted of the two first degree murders
should get concurrent sentences.
So in that situation, the defendant convicted
with the two counts of second degree murder
will get a harsher sentence.
There's also the fact that secondary murderers
don't get the benefit of 33E review.
So the Commonwealth's position is that just because,
due to a change in the law,
the defendant's second degree sentence turned out to be
harsher than a sentence, reversed resentence,
does not mean that this is a disproportionate,
constitutionally disproportionate sentence,
especially where you have a case
where the defendant shot three people,
killing one of them an innocent bystander,
and causing serious harm
to the other two who he was intending to kill.
And for those reasons to Commonwealth
ask this Court to affirm the judge's decision
denying the defendant's motion.
Any further questions?
-: Nope, we're all set.
Thank you. -: Thank you.
-: Thank you very much, Your Honors.