(indistinct)
-: SJC-13270, Commonwealth vs. Christopher Rambert.
-: Okay, attorney Kos.
-: Thank you.
Good morning your honors.
May it please the court,
Matthew Kos here on behalf of the defendant,
Christopher Rambert.
The foundation of this court's holding in Perez
is that there is an unacceptable likelihood
that the brutality of a particular offense or offenses
would overpower the mitigating qualities of youth
during sentencing.
This happened to Mr. Rambert twice,
both times he was sentenced.
At his resentencing hearing in 2021,
the Commonwealth waived the Miller hearing and declared that
it would not attempt to demonstrate extraordinary
circumstances necessary to seek additional punishment.
And secondly, during Mr. Lambert's resentencing hearing,
the sentencing judge mistakenly believed
that he could impose a sentence
that was presumptively disproportionate.
The end result is that Mr. Rambert's
presumptively disproportionate sentence was replaced
by another presumptively disproportionate sentence.
The new sentence violates Article 26
for two distinct reasons.
The first reason is it does not allow for parole eligibility
after 15 years.
And second, the 10 year term of probation
has the opportunity or potential to extend
Mr. Rambert's parole ineligible incarceration
far beyond the 15 years, which is-
-: Commonwealth agree with you on the second point, right?
-: Yes, I believe the Commonwealth has conceded that point,
but I think the reality is that Mr. Rambert
continues to have a unconstitutional sentence.
And I think the point of contention between Mr. Rambert
and the Commonwealth is the remedy for that problem.
So-
-: Could you narrow to the remedy?
So the Commonwealth says you can reimpose the,
well, the life sentences remain in effect.
You argue they could rejigger the entire process,
but you can't just leave the life sentences in place, right?
-: Correct your honor, I think generally speaking,
when it comes to resentencing,
this court looks at an integrated sentencing package.
-: Wasn't this an integrated sentencing package?
-: It was, your honor.
So there was a 30 to 40 year on the aggravated rape
and two life sentences on the armed robbery and burglary.
And then Mr. Rambert a few days later pled guilty
on the remaining indictments
and got a series of life sentences and term sentences.
But I think for purposes of our argument today,
we can kind of focus in on that
the sentence that was initially imposed,
which was the 30 to 40 in the life,
which I think when you read Perez,
Perez, as we look at the aggregate sentence,
So I would say in Mr. Rambert's case,
we've got an 18 to life as the aggregate sentence.
-: I'm confused what you think could be,
if it was an integrated sentence and it has to be redone
and the Commonwealth waive the Miller hearing,
what could the judge do legally?
I know what you say, what he did was illegal,
but what could he do legally at that point?
-: I think at this particular juncture,
the only remedy that can be had is that
Mr. Rambert sentence be terminated entirely.
-: Why?
-: Because when Mr. Rambert went into sentencing in 2021,
we can't disregard the amount of time
that he's already spent-
-: I know, but it seems like you're converting Perez 1 and 2
and out of jail after 15 years.
-: Well, I don't think that it's a get out of jail free card
for a number of reasons.
-: Not free, but after 15 years.
-: Well, in reality is 40 years
because Mr. Rambert had served 40 years.
And we're also talking about an individual
who committed his offenses at 14 and 15 years old,
which is an extraordinarily young age
to commit this type of offense.
Mr. Rambert had suffered from racial trauma
and it was almost implicit at the sentencing hearing
that there was probably some racial bias.
-: But just to clarify then, under Perez 1,
he would be, I get that your client has served 40 years,
is that right?
-: Correct.
-: So, but under Perez 1,
it's not 15 years and then out it's 15 years
then parole eligible, right?
-: No. -: No.
-: I disagree, your Honor.
I would say under Perez 1,
what happens is we look at the sentence
and if that particular juvenile non-homicide defendant
is not parole eligible at 15 years,
it triggers resentencing.
And then in order for that sentence to be reinstated,
then the Commonwealth needs to make its demonstration
of extraordinary circumstances.
The Commonwealth waived the Miller hearing.
So what I would suggest, the court-
-: Couldn't the judge have just said,
couldn't Judge Allman have reimposed the life sentences
with immediate eligibility for parole?
He could,
they're saying that they automatically resurrect,
I have some issues with that.
But couldn't he have done recreated life sentence
resentence life immediately eligible for parole?
-: Well, I have two ways to answer that.
I would say the first way is factual
and the second way is legal.
So let me discuss the factual answer first.
So when he got sent back from resentencing under Perez,
Judge Allman did a very robust resentencing hearing,
which I think is part and parcel of what was expected
under this court's decision in Perez 2.
He looked at kind of a broad holistic approach
or took a broad holistic approach to resentencing.
And in doing so,
Judge Allman reached the conclusion
that additional incarceration wasn't appropriate.
I obviously argued that Mr. Rambert should be released,
but the Commonwealth also believed that
Mr. Rambert should be released on that particular sentence.
And then the judge made his findings with respect too.
So looking at kind of the mitigating circumstances
and the amount of time that Mr. Rambert had already spent,
the judge's findings were that further incarceration
wouldn't serve any rehabilitative purpose
and wouldn't protect the public.
-: Can I ask you?
So you run into the whole issue that Judge Kaplan
initially indicated saying,
Well this doesn't make any sense 'cause
he has already been parole eligible
and has been and denied parole, I think five times.
Are you saying that on a Perez remand,
absent Miller findings,
the defendant basically has to be discharged
to the sentence?
-: No, no.
-: Okay, why not?
I thought that's what I'm hearing from you,
but tell me why I'm wrong.
-: Well, I was saying in this particular circumstances,
I think that the judge could,
in a certain set of circumstances,
a judge could resentence the juvenile defendant
to something that was proportionate under Perez.
-: No, but you disproportionately presumptively
as anything plus 15.
So give me those circumstances.
-: I would say a set of circumstances
where the juvenile non-murder defendant
does not have the amount of time in that Mr. Rambert did
and was not parole eligible at that particular point.
I think that that's the difference between
Mr. Rambert's case and some of the other cases
that have come from before this court.
And I think that's really kind of the point of confusion
with the superior court judge, Mr. Perez, Mr. Rushkoff,
Mr. Washington, the appeals court case,
those individuals were all serving term of year sentences.
So at one point their particular term was going to run out.
Those individuals were going to be released
from incarceration.
So parole eligibility for them had,
I would suggest a greater significance.
In Mr. Rambert's case,
there is language I would suggest under Perez 1
that seems to suggest that a life sentence
for a juvenile non-homicide defender
would be disproportionate
without the extraordinary circumstances
after a Miller hearing that if the court will indulge me
at page 685, it says,
Juvenile defendants who do not kill and tend to kill
or foresee that life will be taken
or categorically less deserving
of the most serious forms of punishment than our murderers.
So in Massachusetts,
the most serious form of punishment a juvenile
non-homicide offender can get
is a life sentence with parole eligibility at 15.
So if a someone is resentenced and there is no finding
of extraordinary circumstances,
it seems to contradict the principle in Perez
that we can't give the juvenile non-homicide offender
this most serious form of punishment.
I do wanna point out too-
-: Can't without a Miller hearing,
but we can with a Miller hearing.
-: But with a Miller hearing and where there's been
a finding of extraordinary circumstances,
certainly the Commonwealth had the opportunity in this case,
if it felt that a life sentence was appropriate
for Mr. Rambert, they could have,
had a full blown Miller hearing.
I would suggest that for lack of a better phrase,
they're trying to eat their cake and have it too.
They want the life sentence,
they want the most serious form of punishment,
but they didn't want to go through the steps
of having a Miller hearing.
Perez 2 says is a difficult and complex task.
We recognize that,
but I don't think that the most serious form of punishment
is appropriate here when the Commonwealth
hasn't made its demonstration.
And again, going-
-: At other times we've said if it's going to be more
than a 15 year parole eligibility,
you need a Miller hearing, right?
It hasn't been complete consistency in the language.
In other words that a 15 year on a life felony
other than murder would not require a Miller hearing.
I know you just cited from Perez 1 thing,
it would, but at other times hasn't been that precise.
Is that right?
-: That's correct.
I'm not saying that it's a bright line rule,
I'm just kind of making that analysis through
the dicta and Perez.
-: Yeah, okay.
So I don't know that enough happened here,
but if you are in the Superior Court and you're trying to,
figure out this integrated sentence,
clearly the intent at sentencing was to have this person
who had committed these heinous crimes on parole for life.
And if you don't have the life sentence,
you lose what is a key element of the initial sentence.
Now maybe there needed to be a hearing and a decision
about that, but that was part of the initial sentence,
wasn't it?
-: You're talking about the sentencing back in 1983
your honor?
-: Yeah, something would be on parole for life.
-: Right, but I would suggest that,
and I know that's what the Commonwealth is suggesting,
but that really undercuts Perez.
I think the whole idea of Perez is to kind of go back
to the drawing board and say,
"Well this judge in 1983 didn't have the benefit
of the adolescent brain research that we know now.
So we're gonna reevaluate this sentence
in light of this juvenile brain research."
-: That means, if I'm understanding your argument,
what that means is that any time is any resentencing
of a juvenile transferred
under the old statute youthful offender
where the sentence took place before Miller and Dean Chenko,
you'd have to resentence.
I think that's the implications of what you're saying.
Maybe I'm wrong.
-: I would say if that 15 years of parole in eligibility
is there.
So Mr. Rambert was not parole eligible at 18
or until 18 years of incarceration.
So I would suggest that that's the triggering event
that sends the case back to the Superior Court
for resentencing.
I would also just suggest that the Commonwealth's proposal
is a little problematic for a couple of reasons.
It would also produce a wide range of results
based upon the sentencing structure.
So if, again, Perez says that it's the aggregate sentence,
but if we parse out life sentences and term sentences,
then one set of individuals might have been sentenced
in one way and would get this presumptively
disproportionate sentence.
But there might be another group of individuals
and just by happenstances the way that their sentence
was structured would be eligible
for resentencing under Perez.
So I think that, where Article 26
relies so heavily on proportionality
that this kind of disparate results
would violate Article 26.
If there's no further questions, I'll rest on my brief.
-: Okay, thank you very much.
Attorney Sherman.
-: Good morning.
And may I please the court Catherine Sherman
on behalf of the Commonwealth.
To begin with the Commonwealth notes
that it made in illegal sentencing recommendation below,
as did the defendant,
but ultimately it was the judge whose recent resentencing
led to this erroneous sentence that the defendant
is now faced with.
The judge exceeded the bounds of his authority in two ways.
One, by going beyond the Rambert two remand
when he revisited and resentenced on the life sentences.
And two, when he resentenced on the term of your sentences,
but did not resentence in alignment with Perez.
And as the court has been discussing,
I would suggest that the lines of resentencing with Perez
are quite clear.
Perez in its explicit language says that the question before
it is about aggregate sentencing for a non-murder juvenile
when the parole in eligibility exceeds 15 years.
It is not about the maximum aggregate time
that a juvenile may be sentenced to.
It is about the parole ineligible time
and that's consistent among the Perez cases.
Rushkoff, O'corro, it is about parole ineligibility.
So the commonwealths in our suggestion to the court
about how we are asking you to help us remedy this situation
would be that the term of your sentences
would need to be remanded for resentencing
consistent with Perez.
And noting that the original sentence in this case
had complications related to truth and sentencing.
For the purposes of simplifying and clarity,
I would suggest that that would take the form
of a term of your sentence at which the minimum
was a 15 year parole eligibility.
It could be less,
it could not be more without a Miller hearing,
but in this case,
the resentencing judge could have simply re-sentence
15 to 40 years on the two aggravated rapes
left all of the other sentences intact.
And this juvenile sentence would've been
in conformity correct.
-: I'm just trying to figure out what you are,
what you argue in the brief and what you're arguing now
are a little different, right?
So you waive the Miller argument
so the judge doesn't conduct one,
then the judge imposes a sentence that's shorter
than the one you recommend.
-: Yes.
-: Now in the brief, you're asking us
to resurrect the life sentences, aren't you?
Or am I misreading your brief?
-: I'm asking you to vacate and reinstate the life sentences
because they never should have been resentenced-
-: Isn't that wrong though,
'cause it was an integrated sentence is
Justice Lowy pointed out earlier,
and when we have haven't integrated sentence,
we consistently allow re-sentencing of the whole package,
don't we?
-: That's true.
But I would suggest this is not
an integrated sentencing scheme.
Here, there were two term of year sentences
speaking mainly to the large ones.
There are other terms of years,
but the 30 to 40 year sentences running concurrent
with the life sentences,
the life sentences were clearly the anchor sentences here,
all other sentences ran concurrent with them.
And in saying that this is not
an integrated sentencing scheme,
I'd point to this court's language in labau,
it's not a case I cited in my brief that it's 451 Mass,
244 at 245 when describing an integrated sentencing scheme.
This court notes that integrated sentencing schemes,
their components work in combination, not isolation.
-: Okay, but let me, and again,
I'm gonna defer to my colleagues who sentence people
regular, well I do not,
but the term sentences here precluded
any parole eligibility for how long?
-: For 30 years. -: Original ones.
So there, so not only is the life sentence in anchor,
but those sentences clearly appear to be an anchor
in a case where this juvenile went on
a heinous crime spree, right?
So can we really suggest that only the life were,
are the anchor and that it's not
a integrated combination sentence here.
-: I would suggest that they were,
that the life sentences were the sole anchor sentences
because they, as the court noted,
showed the judge's intent that this juvenile,
whenever he be eligible for parole,
the question of parole and the term of parole
be dictated by the parole board
and the circumstances at that time.
At the time that this sentence was in place
on under the life sentences,
he would've been parole eligible at 15,
he would've served additional time.
However, once he was eligible for parole
on the term of your sentences, it would've,
the decision of his release into the community would've-
-: Don't say work in conjunction
because the big sentences,
the judge Barton certainly knows what parole eligibility is.
So the big sentences term of years
work to parole eligibility.
So he is not gonna see the parole board till 30 years.
-: Yes.
-: Then if he gets paroled,
he has the life sentences over his head, right?
-: Yes.
-: Which would continue on.
-: Yes, and that I suggest-
-: Does that suggest that they're all integrated?
-: No, because,
and they're not integrated
because every one of the sentences here
could be isolated and revised
without disrupting the entire sentence.
And I think this is actually,
this case is a really good example of that.
If the 30 to 40 year sentences-
-: I don't think so
because if he took just the life sentences in isolation,
he could be paroled at year 20, correct?
-: And I apologize, I should have been more clear.
The non-anchor life sentences,
the non-anchor sentences could have been isolated
and remedied without adjusting the proportions and purpose
of the sentencing package.
-: I haven't read gobos, so I don't know.
We certainly have to do that, but I just don't,
I think it's just as Kafker's point as well.
I'm not seeing how this isn't a complicated
sentencing scheme that's integrated.
-: And I would suggest that the cases
that use that term of art integrated sentencing scheme
most often with rare exception are cases
where there are from and after sentences
where there's some sort of interdependence
on when a sentence would begin or end.
-: If we take broad pictures,
doesn't Perez because it's an Article 26 issue,
ask us to look at juvenile sentencing
and when does it exceed disproportionately harsh sentencing
for parole eligibility?
I get the technical Perez with from and afters
and prior to voting that we usually do.
But isn't this a little different
because we're dealing with Article 26?
-: No, because the analysis of Article 26
and the disproportionality analysis in Perez
and the Perez derivative cases
are just about the disproportionality
of serving more than 15 years of parole ineligible time.
And here though the defendant had fully served his term
of your sentences at the time of his resentencing,
his sentences would've conformed to Perez
had the term of your sentences
just had a minimum term of 15 years.
His life sentences were and are legal life sentences
are legal sentences for a juvenile.
He went through the robust transfer hearing,
the life sentence as your sentence at the time
wasn't is a legal sentence for a juvenile.
-: So the judge should've just left him alone.
-: Yes, they never should been touched.
And I think that's clear even in the language of the remand
from Rambert too, where it's referencing Washington,
Washington is only discussing
the term of your sentences
and how that ought to conform to Perez.
And also that even the decisions coming from this court
in Rushkoff and O'corro, oh sorry, not O'corro.
Apologies.
-: How do we deal with the practical problem,
which is everybody agrees there's no point
in incarceration for him.
Am I misremembering?
-: Parole board does not agree with that.
-: Well, but Commonwealth, and the judge is in a box here.
I'm not sure, no one's defending what he did at this point.
But the judge is in a box.
The Commonwealth is prepared to end the incarceration.
I'm trying to remember what the Commonwealth argument
was at this point.
-: Yes, I apologize that the Commonwealth recommendation
wasn't to end incarceration,
the Commonwealth's recommendation would've resulted in him.
-: You wanted the three or five,
he wanted the three to five.
-: The three to five on the from and after sentence.
-: Which you still wouldn't take the position could happen
because that would have inevitably occurred.
He would've wrapped up a three to five from an after as well
with the 20 to 30
'cause there were truth in sentencing cases.
-: The three to five,
I apologize for not knowing the date of that.
That was sentencing unrelated to the series of rapes
for the escape.
-: I knew that, that's way back.
It was way back escaping DYS.
-: Yes, it it may have been and I defer to the court
about it may have.
At the recent resentencing hearing in 2021,
I believe the information from the probation
and the parole department was that if the defendant
was sentenced to a term of years less than,
actually I won't refer to the hearing
because I don't have it completely memorized,
but they did discuss the from and after sentence.
-: But I'm confused.
So we have a problem, which is the sentence,
the original sentence is now legal.
And so is the subsequent sentence that the judge,
what's the judge to do here?
The judge, he's already served more time
without parole eligibility
than was legally permissible, right?
-: Yes.
-: And the Commonwealth doesn't wanna Miller hearing,
so I'm just trying to figure out what the judge
is supposed to do in these circumstances
and what are we supposed to do now?
I understand what he's saying,
but I don't understand yet what you're saying.
The judge,
there should be a remand in your view to resentence because,
and you originally in the brief
was to reimpose the life sentences.
But now I think you're moving away from that or.
-: No, that remains our position.
We're asking for this court to.
-: And how do we address the fact that he spent
this much time without parole eligibility?
Is there any, the judge is supposed to do what with that.
-: At this?
Well the defendant did serve more than 15 years
of parole ineligible time,
but had been parole eligible as this court noted
for a significant amount of time
before this 2021 re-sentence.
-: So we leave that-
-: He served 18 years I believe.
-: I'm just trying to figure out
how we deal with that problem.
-: And by that your honor,
do you mean the overall time that he has served or that.
-: He is, you say reimpose the life sentences?
-: Ye.
-: Which I take it was reimpose the life sentences
with 15 year parole eligibility.
He's already gone way beyond 15 years
without parole eligibility.
We just leave that as sorry.
-: On his life sentences.
So I actually,
I'll begin with what we're asking in broad brush stroke.
-: Before you do that,
he hasn't gone beyond the 15 years without parole eligible.
He's had four hearings.
-: That's correct.
-: And they've been denied.
-: And on those life sentences,
he only had 15 years of parole ineligible time
that he served.
And then-
-: Did he get a parole hearing within 15 years or you got.
-: He had his first parole hearing, I believe 18 years,
but I'm not exactly sure.
It was less than 20 certainly.
With his, the term of your sentences,
we'd ask that those be remanded for resentencing consistent
with Perez.
And that is either a term that begins
at which the minimum end of the range is 15,
it can be less the high end of the range, maybe 40.
It can be less because the judge has the opportunity
to review his behavior
since that term of years was reinstated.
But for the life sentence-
-: How do we deal with Perez 2?
In Perez 2 we say there's no point in doing the Miller
because there's no way the Commonwealth can prove that.
Are we outside of that?
I mean you waive the Perez hearing the first time.
How do we deal with Perez 2
and the idea that sometimes this is completely pointless
'cause you're not gonna be able to meet this.
Are you suggesting you could meet this?
I'm just trying to.
-: No, Well my understanding of Perez 2
was not that it couldn't possibly be met,
but the Commonwealth had failed to meet it because,
and the defendant was resentence improperly
because they hadn't,
he was resentenced solely on the nature of the crimes
versus the consideration of his family life
and his juvenile tendencies at the time.
That, that was why that wasn't remanded
because it was improperly done.
But I think Perez 2 is informative in terms of saying just
that a juvenile convicted of non-homicide offenses
be presumptively eligible for parole at 15 years.
And that's what conformity with Perez would be.
That taken to extend to other cases,
and the applicability of this in general
term of year sentences that are now unconstitutional
for the juvenile offenders ought to be resentenced
could remain the same if there were a Miller hearing,
but otherwise need to have the minimum term year number
of 15 years.
That said all other legal sentences that were imposed,
including in this case,
the life sentences need not be revisited
because there is no constitutional violation
when he was parole eligible at 15 years.
-: Did the Commonwealth take the position in 2021
that the original sentencing scheme was an integrated,
comprehensive scheme?
-: Those words were not used and that wasn't implied that-
-: It did suggest any alternative to the life sentences.
-: Yes, both the Commonwealth and-
-: They took the position that those life sentences
could be revisited and should be revisited on resentencing.
-: That was the Commonwealth's position at the time.
And that is not a position that we-
-: Now waived that the commonwealth
that those life sentences spring back to life.
-: Well, we're asking that they be reinstated
because there was not legal authority to resentence on them.
They never should have been resentenced,
the resentencing that was done on
at least two of the license terms.
-: As to waiver.
The Commonwealth took a position,
life sentence can be readdressed, here's our proposal,
it's illegal,
but here's our proposal and now you're asking us to say
those spring back to life
and you don't get a comprehensive integrated scheme,
it seems to me,
and that there might be an issue of waiver
on the Commonwealth's position.
-: I do understand your honor's point
and unfortunately looking at this record
and the recommendations that were made by all parties,
the sentence that was imposed by the judge,
there are errors upon errors.
And at this point,
we're really calling on the court's general supervisory
powers to reinstate that-
-: Fix the mess that we help me.
(all laughs)
-: And also in doing so in reinstating the life sentence,
give guidance for these future cases.
There is not to make light of how things went wrong,
I'm saying errors upon errors.
But this is confusing.
And I think at this time when there was this resentencing,
the judge was clearly trying to come to the right result
and was referencing the case law
and trying to understand where he stood.
But he was confused.
-: But the stakes are,
we haven't talked about how enormous the stakes are here.
Because if the life sentences are reimposed,
he's got new charges
that could result in parole being denied.
So this is not just an academic exercise.
-: It is not.
-: This is, the stakes are huge here.
-: The stakes are huge here and complicated
because right now the defendant has violated his probation
on life felonies is subject to.
-: Even you agree nothing can happen.
-: No, certainly not.
No, he cannot be-
-: Revoked.
He can't be revoked.
-: No, he can't.
He can be litigated in the district court
where those cases happened.
However, here it is a complicated situation
and the stakes are so high.
However, this defendant through the fault of the parties
and the court was released back into the community
on these life sentences when he shouldn't have been,
there was no legal justification for it.
He should not have been in the community
to commit these new offenses
because five weeks before this resentencing hearing,
the parole board deemed him not ready
for reintegration into society.
-: SJC-13269,
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