-: SJC-13505 Commonwealth v. a juvenile.
-: Okay, Attorney Koes.
-: Good morning, Your Honors.
May it please the court.
My name is Matthew Koes,
and I represent the juvenile defendant.
To comply with Article 26, this court held in Perez one
that a juvenile non-homicide offender
could not be sentenced to more than 15 years
of parole ineligible incarceration unless there is a finding
of extraordinary circumstances after a Miller hearing.
For this juvenile defendant and a handful
of other juvenile defendants sentenced after Perez,
the addition of straight probation
to their revised sentences is illegal.
This is because any sentence following a probation violation
is essentially, just a deferred component
of the overall aggregate sentence or aggregate punishment
that causes the bottom number of the sentence
to increase above and beyond the 15 years
that's permissible under Perez.
-: What causes that to increase above and beyond
what is allowable under Perez?
Isn't it the violation of the probation
that causes that or is it the probation?
-: It is, Your Honor.
It is the violation of the probation,
because what we're talking about
is the parole ineligible incarceration.
-: Right, so if the cause is the violation of the probation
and not the probation itself,
isn't it different than what was not allowed in Perez one?
-: I disagree, I think that.
-: I can you explain why though I guess.
-: Yes, sure.
-: If you agreed we wouldn't be here.
-: In Perez one, the court looked at
the entire aggregated sentence that Mr. Perez had.
If you look at footnote two,
there was a series of concurrent and consecutive sentences,
and it did include a 10-year term
of probation in that sentence.
So essentially, what happens is
the court in Perez set a bottom number.
It left the top number
to the sentencing judge in their discretion.
But anytime that bottom number comes above 15 years,
it's presumptively disproportionate
and it triggers a re-sentencing hearing.
That sentence cannot stand unless
until there's a finding of extraordinary circumstances.
-: But that was, 'cause it was beyond
your parole eligibility date went beyond 15 years.
This person's out after 15 years.
Isn't that totally different?
-: Well, I think the problem lies,
because of the differences between parole and probation.
A sentence that involves parole,
if someone is released and they go out onto parole,
if they violate parole,
they're brought back in on the original sentence,
because they violated parole.
On probation, if someone violates probation,
they can be resentenced based upon the underlying conduct
and therein lies the problem.
For example, in this particular case,
the juvenile defendant, he could be resentenced
on any of those terms of probation.
There's several of those offenses are life felonies.
And if you were to be resentenced
to life after a probation violation,
he might not be parole eligible again for another 15 years.
And now, he's in a situation where he's served 30 years
until he's parole eligible,
which is far beyond what is allowed for under Perez.
-: So, can we go back to first principles?
Why is it that juveniles can't be sentenced,
cannot have a parole ineligible sentence beyond 15 years?
What was the basis for that in Miller, et cetera?
-: Well, the basis in Perez was that,
if you was proportionality.
If you compare a juvenile non-murderer defendant sentence
to a juvenile murder defendant sentence,
it can't be disproportionate.
And the way that the court calculated that proportionality
was by looking at the parole eligibility date.
Again, the top number for juvenile non-murder defendants
is left to the discretion of the sentencing court.
But anytime a juvenile non-murderer.
-: But I guess going back to first principles.
Isn't it because juveniles are different,
children are different than adults
and we treat them differently than adults,
because of the prospects for rehabilitation
things that are beyond their control
and their immediate environment unlike adults?
You know, those four factors
that really gave rise to this whole jurisprudence.
How can you look at those factors and tell me how it is
that those factors require
this sentence to be unconstitutional?
-: Well, it is a combination of the factors
of involving juveniles,
but it's also a combination of the fact
that we're not dealing with
a murder offense or a homicide offense
and children or juveniles who do not.
-: So, let's stick with the former, right?
I get this is not a homicide defense,
but looking at why children are different
for purposes of punishment,
can you look at those factors and tell me why
probation like this is unconstitutional?
-: It's unconstitutional, because it's a punishment
of the original underlying offense.
-: But that's not why it's unconstitutional.
Why? You know, the fact that children are different.
Tell me something about how children are different
that makes this straight probation unconstitutional.
Right, like look at rehabilitation, right?
That sort of as one factor, right?
Children change you, we know that from the science.
Their brains are different,
more likely to be erratic behavior,
subject to peer pressure.
How does that inform whether or not straight probation
for non-homicide is unconstitutional in your client's case?
-: I think it's because at a certain point
there becomes too much punishment for,
because of these factors for juvenile offenders.
-: So, how is letting somebody out into the community
on probation similar to incarcerating somebody for life?
-: Because the exposure to additional parole
ineligible incarceration puts the sentence into.
-: But that you're talking about the proportionality
between homicide and non-homicide.
I'm focused on why children are different
and how giving a child the opportunity
to grow up in the community
and either violate probation or not
is impacted by the Miller factors, the grand factors.
How do we analyze that?
-: Well, I think moving forward,
I think in this particular case,
we're talking about a very unique set of circumstances
about an individual who is incarcerated,
spent a substantial period of time incarcerated,
and then was placed onto probation.
Moving forward with juveniles that can all be taken care of
and encompassed in the juvenile sentencing
in the juvenile court.
There are many dispositional options.
-: I guess maybe you don't have an answer to this
and I can ask your opposing counsel.
How is it that these things that science has identified
that make children different,
how is giving the child an opportunity
to be in the community by probation,
how is that not considering those things?
Do you understand my question?
You know, like the fact that
they're not in control of their environment,
that they might be more subject
to peer pressure than an adult,
that they are more likely
to be less than thoughtful in their conduct?
How is it that leaving them to probation
violates those principles?
-: I don't think that it would violate those principles.
I think it would be helpful to most juveniles
and I think community supervision
would be appropriate in certain circumstances,
-: Isn't this a one-off in a certain way?
I mean, your client asks for probation.
It helps sell the change.
Then, now 15 years later, he violates probation.
He's 33 years old.
So, we're not dealing with
anything related to juveniles at this point.
And I mean, are you saying by the way that every time
someone gets probation now after the 15 years,
we need a Miller exigent circumstances finding?
Is that, I mean, it's gonna be easy, right?
Someone like your client had this issue been joined,
it would've been exigent circumstances for this.
It's not a difficult thing,
but no one contested it and no one litigated it.
It just seems like we're dealing with
sort of an odd case here.
-: Well, I agree that this is unique circumstances.
I think as the Amicus brief points out,
we're only dealing with about four or five individuals
who find themselves in this particular circumstances
where they've been resentenced after Perez
and they find themselves with probation
having exposure to more than the.
-: Is it your argument that whenever someone gets probation,
we're gonna need an exigent circumstances finding
justifying that going forward?
I understand you didn't bring it up,
they didn't contest it, it sort of happened,
but going forward is that gonna be a requirement each time?
-: I think it would be a requirement,
if a juvenile sentence to an adult sentence
that requires more than 15 years
of parole ineligible incarceration.
I think that there are many different ways
that it can be structured to,
if, you know, a creative sentencing judge
can get around that and put community supervision.
If I could give the court an example.
-: I mean, I'm just trying to get a sense
of what this case is really about,
because when you violate parole and you go back,
you're back in prison.
When you violate probation, you're back in prison,
because you blew your second chance.
Both of them are the same, right?
-: Well, I disagree.
I think when probation is revoked and parole is revoked,
you have different consequences.
-: But you're back in prison
and potentially for a long period of time
for something you did when you were no longer a juvenile.
You did it as an adult, which is just what we've been,
we've been emphasizing the importance
of a second chance for juveniles based on the brain science,
but we haven't been emphasizing
that it's a violation when someone does it as an adult.
-: Well, I think that the case law is clear
that we're looking at the sentence
as at the time it was imposed as a juvenile.
So, I think you can't separate that from the analysis,
because we are dealing with essentially a juvenile sentence.
That's where the sentence was created.
-: Counsel, could you please, sorry to interrupt,
could you please address what you think
the nature of the extraordinary circumstances inquiry
that you're suggesting should occur
at the time of probation revocation?
Because I don't think that's been discussed.
And in your answer, could you address the fact
that there's already been a finding,
although it was not requested
by the Commonwealth about extraordinary circumstances here.
-: Correct. So, that's correct.
Your Honor, I did propose that in my reply brief,
I suggested that there would be
an alternative solution to this problem,
and essentially, give the Commonwealth another opportunity
to make a finding or demonstration
of extraordinary circumstances.
-: But can you just address particularly the nature,
the ordinary extraordinary circumstances inquiry
is supposed to take place at the original sentencing
where the judge is looking forward into the future saying,
you know, do I think there are extraordinary circumstances
to believe that this juvenile
should be sentenced to longer than 15 years?
How should a judge even think about that inquiry
at the time of a probation revocation hearing?
-: Well, I think the sentencing judge
can take a broad holistic approach
to the sentencing at the time of the revocation.
I think the case is like Costa and even Perez two
suggests that post sentencing conduct
can be considered as part of that decision-making process.
And I think in these particular circumstances,
if the court wanted to include that post sentencing conduct
as part of its decision making, it could.
-: How is that different from just sentencing
the defendant on the probation revocation?
-: I think it's different,
because the court will still have to take into account
the characteristics of youth.
The individual's personal circumstances
in addition to the nature of their crime
and perform that balancing test and determine
whether or not the extraordinary circumstances are there.
Even after a probation violation, the court might determine
that there is not extraordinary circumstances
and might find that further incarceration
does not benefit the juvenile or benefit the public.
-: Will it benefit the juvenile,
if you take away from a juvenile sentencing judge
the ability to include straight probation?
Because judges do this all the time for this reason.
And what you're gonna force,
if we go into the world that you're advocating for,
is juveniles are just going get hit with sentences.
They're just not going to give us
account with straight probation for the future.
They're just going to give 'em a custodial sentence
and that'll be it.
-: Well, I'm suggesting that, you know,
straight probation certainly isn't off the table.
The Commonwealth always has the opportunity
to request a Perez hearing and make its demonstration.
I would also suggest that this problem can be avoided
by using suspended sentences a little bit more creatively.
A situation, for example, this particular case,
a judge might consider giving.
-: You'd need extraordinary circumstances
to justify that beyond 15 years, wouldn't you?
-: The 15 years of the parole ineligible incarceration,
again, I'm talking about the bottom number here.
The judge always has discretion
with the top number on the sentence.
So, in terms of the example.
-: But I'm confused though.
If the judge thought, okay, these are serious crimes,
I'm giving you the full 15 years,
but Diatchenko and Perez one and Perez two
put limits on the ability to provide for more.
But if they give you a suspended sentence over 15,
you need extraordinary circumstances, right?
The same way I think you're arguing
you need extraordinary circumstances to justify probation,
straight probation, any kind of probation afterwards.
-: What I'm suggesting to the court is
that there could be a range.
For example, like a 12 to 18
on the incarcerated portion of the sentence
and then do a suspended sentence for three years.
And then that way if probation is violated,
you're able to have the 15 years
of parole ineligible incarceration.
You could even do a sentencing range
on the suspended sentence as well
to kind of keep that in context.
But I think overall, my point and the reason
for this case is, you know, Perez says what it says.
15 years of parole ineligible incarceration
is unconstitutional
and sometimes the constitutionality of the sentence
must overcome or supersede the judge's
well-intentioned desires to place the juvenile on probation.
If there's no further questions?
-: Okay, thank you.
Attorney Steinfield.
-: Thank you very much.
Good morning, may it please the court?
Kenneth Steinfield for the Commonwealth.
I'd like to begin by first addressing
Justice Kafker's question about what this case is about.
It's obviously, about this defendant
and the few defendants like him who are similarly situated,
whose cases are set out in the Amicus brief
and what happens to them.
It also involves going forward in the future,
what options will be available
to a juvenile court sentencing judge
when a juvenile has committed very, very serious offenses
and the judge has to determine what the best way
to punish that defendant in conformity with Perez
and protect the public is.
So, if he wants or she wants
to give the maximum parole ineligible time,
whether it's 15 years or not,
if it happens after, now of course, it's different,
because of the statutory amendments in 2012 and '14.
But assuming that it's the 15 years from before that,
if a judge is concerned with what to do in the future,
that judge has to have the flexibility
to sentence a person to probation.
Otherwise, as Justice Georges has pointed.
-: He or she can do that,
if they find extraordinary circumstances.
-: Right, but I think.
-: But you're arguing you don't,
are you arguing you don't need extraordinary circumstances
to provide for probation?
-: Absolutely do not.
-: Yeah, that's what I thought you would.
-: Yeah, no, that is my absolute point.
And I think that it's no secret or surprise
after Perez two that the bar is very high
this court had set for when that occurs,
when there's no reasonable possibility
that a juvenile can be rehabilitated
within the time that it would take for a first degree murder
or first degree to be eligible for parole.
So, I am basically, talking about most cases,
I think it's true in which the Commonwealth will not seek
or be able to show extraordinary circumstances.
Those are the cases that I'm talking about.
That this case, this court's opinion in this case
will have an effect on what does
a trial judge do in that situation.
And I think it is far more beneficial to the juvenile
and to the public that, that judge
be able to put him or her on probation
rather than give a 15.
-: I agree with you about the huge value of probation,
but what I'm not sure of
is whether you need extraordinary circumstances or not,
because isn't that probation on top of a sentence
that is greater than you would get for murder?
Am I wrong on that?
-: Well, I don't think it's on top of or greater,
because a murder defendant, juvenile defendant,
will be on parole when he gets out
for the rest of his life, right?
-: But then it's that difference
between parole and probation.
I don't know if there's a meaningful difference,
but there is a difference.
-: Well, I think that the duration
is certainly shorter if you're on parole
after serving a sentence with life parole,
you're on parole for life.
Whereas if you're on probation,
you're on probation for five years, eight years,
10 years, whatever it is, and then you're done.
And of course, all that you have to do
to avoid being sent back to prison is not break the law
or violate the terms of your probation.
So, I think that it's a key component
and that the probation has to be part of the tools
that are available to the sentencing, Judge.
I'm sorry, I was gonna say.
-: Counsel, because as could you address the point that,
because some of these offenses
on which he's being sentenced for the first time,
because of the probation are life eligible.
He could actually receive a much longer sentence.
Could you address that point?
Which is different I think than the parole situation.
-: He could, but only if as a biologically mature adult
who has not been rehabilitated
then commits further offenses.
That's why I think I was going,
I talk about Justice Wendlandt's
references to first principles of why we have these rules
is because the lack of maturity, the vulnerability,
and the character not being formed of a juvenile,
which were the animating principles of those cases
are simply not present in a situation here
where you have a juvenile who is at least
in his or her thirties at the time
when he or she gets out and then.
-: So, that all makes sense to me,
but does this mean that we'd be overruling Perez one?
-: Well, absolutely not.
I think this is entirely, this is a Perez case.
I think that if this court goes back
to the holding in Perez, and I apologize for reading,
I'll do it very briefly.
This court was very clear what it's holding in Perez was,
"We conclude that were a juvenile sentence
for a non-murder offense or offenses,
and the aggregate time to be served
prior to parole eligibility exceeds that applicable
to a juvenile convicted of murder,
the sentence cannot be reconciled with Article 26
in the absence of extraordinary circumstances
that warrant treating a juvenile more harshly
for parole purposes than a juvenile convicted of murder."
And if you have, say, if you compare
a juvenile rapist and a juvenile murderer
and both commit the crimes in say like in this case
like in '04 and convicted in '07,
so we're talking about 15 years,
the juvenile murderer will get
the maximum parole time he's not eligible
and then he'll be out on parole for the rest of his life,
which could be 30, 40, 50 years.
Whereas the probationer, I am sorry,
the juvenile rapist gets the same amount,
the maximum parole ineligible time,
but then is only on the hook
for a very small number of years.
Therefore, I don't think that it's fair to say
that a juvenile non-homicide offender,
in this case an aggravated rapist,
has been treated more harshly than the juvenile murderer.
It seems to be clear and obvious that the juvenile murderer
has been treated more harshly,
because of he's on parole for the rest of his life.
-: Counsel, could I ask one question though?
The foundational question.
So, if the straight probation count on the violation
and the court holds the hearing finds the preponderance
and says that they're going to now on the count
that the original sentencing judge gave straight probation
now is going to impose a term of years,
does that sentence go back to the original conduct
for purposes of Perez?
-: Well, it goes back to the conduct,
because he's being sentenced to the underlying.
It does not go back though to the original sentence.
There's no reason to add the term of years
that were imposed as a result of the probation violation
to the initial term of years.
As I said in my brief, the defendant essentially
wants to relate back take that time
that should he ever get it,
to automatically add it to the time
that he got for the parole ineligibility.
Therefore you need extraordinary circumstances.
And I don't think the case law
or logic supports that position
that it should automatically be added on,
because as this case said,
it talks about the aggregate time to be served
prior to parole eligibility.
Well, here we don't even just have parole eligibility.
He was released, he got 15 to 15 and a day,
so he is on the street,
which is an even superior form of relief
than having access to parole.
So, I don't think there's any basis to add time
that was imposed as a result of a violation.
As I say by a biologically mature unrehabilitated defendant
to add that time to his initial time.
Of course, this court can say
that Article 26 prohibits that.
There's nothing to say that,
but I don't think the law as it now stands,
says that at all.
And I think Perez would imply the opposite.
So my answer, this is absolutely a straight Perez case.
Well, I'm not asking this court to do anything to Perez
or to change it at all, just apply it,
and here he got probation.
Otherwise, the probationary terms,
which were imposed initially,
and during the re-sentencing are meaningless
because as the Amicus says, the only possible punishment
that you could get for those
would be time served or guilty filed.
And that's not a, I'm sorry, that's not an incentive
for the defendant to behave at all while on probation.
That's basically, that's a nullity that's void.
So, that doesn't really mean anything
to putting someone on probation.
So, to adopt my brother's argument,
you would prohibit a juvenile court judge
from ever placing a defendant
who got the maximum parole ineligible time on probation,
which I think is both bad policy and
-: Well, you could add, you could do it
by requiring the exigent circumstances file.
-: Yes, right. Well.
-: It's not that hard, but you can do it that way.
-: Well, the standard set out in Perez two
seems pretty hard to reach
and it says it'll be a rare case in which it happens.
And I agree, you're right, that's the standard.
So, I don't think, and that's why in this case,
you know, the Commonwealth chose not
to exercised its discretion not to.
It may have if it sought to,
but it determined that it didn't.
So, but in some cases.
-: Well, here's my question for you is,
so I understand the sort of idea of
letting the juvenile grow up in the community
and you know, if they violate probation,
they're presumably an adult is in this case at the time.
But at the end of the day,
if you take a snapshot post violation of probation,
we are giving a juvenile defendant for non-homicide,
more parole ineligible time than the homicide defendant.
And just if you take that snapshot,
and it does seem odd to me
that, that would be okay under Perez one.
-: I don't think you're giving him
more parole ineligible time.
You are giving him new parole ineligible time.
It's not the same.
You don't aggregate them or add them.
I think that's a fundamental,
I dunno if it's disagree, that's my position.
-: But why not, why not?
As a practical matter, the defendant,
the juvenile defendant, is going to be serving more time.
-: But only because there was,
you might think of it as a superseding, intervening cause
he has violated the law here very seriously,
which makes him eligible.
-: And he got out, as you said, he got better than parole.
-: He got better than parole, he got.
-: And then he blew his second chance.
-: He got the very next day
and then about six months later he was arrested
and charged with some very, very serious crimes,
which he's now being held as dangerous
in the Suffolk Superior Court.
Also being held on a probation detainer
in this case as well.
So yeah, it is entirely within his control or her control,
if he violates the law or not.
And of course, if the commonwealth
can't show there's a violation, then he will be free,
but if it can, it should have the option
to protect the people.
He has demonstrated that he has not been rehabilitated.
If there's a violation that is found and therefore,
while once when he was a juvenile,
had an enhanced amenability to rehabilitation.
Any defendant here in this circumstance and situation
has shown that he's actually not rehabilitated.
So, I don't see any reason why he should not,
he or she should not then be sentenced to additional,
well, to prison time for something
that he was never sentenced on before.
And I just fundamentally disagree that the term of years
that's imposed for a violation probation
should be added to the initial 15,
because so has happened since then.
It takes it outside the realm.
The vice that Diatchenko, Perez, and Miller.
-: You're confronted with the technical problem
that he's being, when he's violated,
we're re-sentencing him on the original conduct.
So, there's at least technical appearance
that it's a longer sentence for the original one.
-: That's exactly right.
But I would argue that it is purely technical,
not a meaningful substantive distinction
that should make this violate Article 26.
I absolutely agree that, that is something to be considered.
The fact that he's being sentenced for the underlying,
I'm sorry for the initial offense
as to which he got probation.
-: Yes, it does it matter if it's
straight probation versus the alternative.
So, if he were given a suspended sentence of two years,
it looks more like it's on the original, right?
-: Yes, it does,
but I think the same principles would apply.
I haven't given a great deal of thought
to what the implications of getting a suspended sentence
were as opposed to a straight probation as here,
but I think it's more common now.
Although I can't for sure that the straight probation
is the scenario that happened here.
And obviously, I think that's the one
that's most obvious and most often
and it's the one that we're concerned with
rather than a suspended sentence.
But I don't see why the same principles
wouldn't apply to those as well.
-: I understand why you're saying it's sort of technical
that the case law considers him
to be being sentenced for the first time many years later,
but it seems very not technical in the sense
that he may get an extremely long sentence.
And that sentence is for the conduct
that he committed as a juvenile, correct?
-: Right, but it's only triggered,
as I've said, by his post release conduct.
-: But he's not being sentenced for the post-release conduct.
-: [Attorney Steinfield] No, he's not.
-: That is the subject of a separate criminal matter
on which he could receive a sentence
that would with respect to which he would not get
any sort of special treatment as a juvenile.
-: Right, that's absolutely true.
-: So, can you talk about, just briefly,
about what is the function and meaning and limits
of the idea that he has never been sentenced before?
Because I think that's the basis of the disagreement
about whether to aggregate here.
-: I think that's a bit of an issue
of first impression here now actually.
It is sort of sui generis.
As to what that means practically
as this court has said many, many times
being sentenced for the underlying conduct.
It's a fact that I can't avoid
and I don't have any better answers
than the ones that I've given so far
as to why it shouldn't matter for Article 26 purposes.
The fact that he later has committed a crime,
that's my answer to that question.
That's what separates it.
But it's true that he is being sentenced
for the underlying conduct.
I can't escape or avoid that.
I don't know if I have a more satisfying answer
to that question, Your Honor.
-: Could you address the Judge Dewar,
if you got a really long one does that,
so you get 10 more years, does that create a problem?
Does it not become technical, if it's or 15 years,
or, you know, does that change things?
-: I don't think that the term of years.
Justice Kafker: Without a finding of, I mean I'm again.
-: Right, right, right, of course we're all talking about.
Right, I'm only talking about a case
in which there's no extraordinary circumstances
where there's given probation and a violation.
-: Then there's, as Justice Dewar just proposed,
and then a long new hit.
-: Right., well.
-: What's your answer to that?
Why that isn't a problem?
'Cause that does seem more than a technical issue.
-: Well, but it is a function of course,
of the crime that he has committed afterwards.
-: And we're sentencing him not on that.
We're sentencing him.
We're re-sentencing him on his original,
but giving him a big.
-: If that happens, he can still argue.
He doesn't have to rely on
the presumptive disproportionality of Perez and Diatchenko.
He could then make an argument
that under a sepalonous analysis
that, that sentence would be disproportionate.
And I think that's an outlet
that he would have then at that point,
if he gets a whopper of a sentence on probation,
he can make a straightforward, you know,
the tripartite sepalonous analysis
separate from here we are only talking about
the presumptive disproportionality
that arises when a juvenile non-homicide offender
is sentenced more harshly
than a juvenile homicide offender.
So, I think a straight argument then
would be something that could be litigated,
if he gets that punishment at that time.
If he gets a life sentence or 20 years or whatever,
then he can make that argument
and he has a chance to win on that.
And this court might be amenable
to that sort of a situation.
But in the ordinary run, if he gets a three to five
or if he gets, you know, something less than that,
you know, then I don't think it's a problem.
But if he does, as I said, get whacked,
then he has this alternative option of a sepalonous claim.
-: Well, I thought Perez one was all about sepalonous.
-: Well, it,
-: I mean, the whole analysis is about the tripartite.
-: Analysis when determining, but it's holding is
that if it's more harsh
then it is presumptively disproportionate.
-: It uses the sepalonous three part test.
-: Right, to get the presumption.
-: [Justice Wendlandt] Yeah.
-: So, if that presumption no longer applies,
which I say that it would not apply,
if he's being sentenced for a probation violation,
he can then argue that rather
than the presumptive disproportionality, his whole sentence
that includes both the initial and the probation sentence
would itself be disproportional
separate from the presumption.
I'm not sure if that answers Your Honor's question.
-: I'll have to diagram it out.
It seems like you're saying,
sepalonous gives you a presumption
and then sepalonous allows the defendant
to make an argument on violation of probation.
Is that what you're saying?
-: Right, because sepalonous is just a general framework,
-: [Justice Wendlandt] Of course.
-: For determining when a sentence
violates Article 26 or the Eighth Amendment.
-: Right, but Perez one says you can't give
parole ineligible time beyond the 15 years
to a juvenile non-homicide defendant,
because under that tripartite test,
there is this presumption, right?
-: [Attorney Steinfield] Yes, exactly.
-: That because he's a juvenile,
that these scientific factors in the brain development
require extraordinary circumstances.
And I guess what you're saying is that
the sepalonous argument would then apply
in the violation of probation in the absence
of any analysis of the juvenile circumstances?
-: Well, in the absence of the presumption.
I'm not sure what the contours of a sepalonous analysis
would look like in the future.
It may take into account the fact that
as a juvenile he committed the offense
for which he's now being.
-: Well, isn't that exactly
what the defendant argues in the reply brief?
That that's where it should,
that something like that could happen?
-: Well, but I'd say that's only
if he gets hit with a sentence that is so harsh
that he can argue with a straight face
that it is standing on its own disproportional
rather than totally relying on
the presumptive disproportionality provided by Perez.
-: Because Perez said, you're entitled to this chance,
this second chance, right?
That's the fundamental first principle of Perez.
You get a second chance of parole eligibility.
But then when we, so you've blown your second chance
and then we're looking at disproportionality
in the context of a blown second chance.
I don't know, it gets complicated what we're doing.
-: Oh, there's no doubt about that, Your Honor.
I don't dispute that.
-: [Justice Wendlandt] Okay.
-: If the members of the court have no further questions,
I'd be happy to rest the of my briefing.
Thank you very much. -: Thank you.