Commonwealth v. Halbert

In 1989, the defendant, Joshua Halbert (“Halbert”) was convicted of first degree murder under G.L.c. 265, §1, “by special verdicts on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder by joint venture.” Commonwealthv.Halbert, 410Mass. 534, 534 (1991); see id. at 535-36 (setting out facts); id. at 539 (noting “the extreme brutality of the crime” for which defendant was convicted). The court (Ronan, J.) sentenced Halbert to the statutorily mandated sentence of life without the possibility of parole. See G.L.c. 265, §2. Halbert was sixteen years old at the time he committed the murder, and he has served approximately twenty-four years of his life sentence.

This action is before the court on Halbert’s Motion for Immediate Correction of Unlawful Sentence1 and the Commonwealth’s motion to stay action on this motion. For the following reasons, Halbert’s motion is ALLOWED and the Commonwealth’s motion is DENIED.

DISCUSSION

In June 2012, the United States Supreme Court decided Miller v. Alabama, 132 S.Ct. 2455 (2012), holding “that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” Id. at 2460. In so holding, the Court rejected the argument “that the Eighth Amendment requires a categorical bar on life without parole for juveniles,” but acknowledged that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." Id. at 2469. Instead, the Court’s decision “mandates that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.” Id. at 2471. The Court set out those factors for a “sentencer” to con*410sider when determining the proper penalty to impose on a convicted first degree murderer who was under the age of eighteen at the time of the crime. See id. at 2468.2

In Massachusetts, a defendant convicted of murder in the first degree under G.L.c. 265, §1, faces a mandatory sentence of life without parole under G.L.c. 265, §2.3 In the absence of appellate precedent or legislative action, other justices of the Superior Court have held that the effect of Miller is to render unconstitutional that portion of G.L.c. 265, §2, insofar as it mandates the elimination of parole for an offender convicted of first degree murder, if the offender was under eighteen at the time of the crime. See Commonwealth v. Jackson, SUCR2002-10303, slip op. at 2-3 (Suffolk Super. Ct. Jan. 18, 2013) (Brady, J.); Commonwealth v. Brown, MICR2009-00963, slip op. at 2-3 (Middlesex Super. Ct. Nov. 20, 2012) (Budd, J.); Commonwealth v. Peirce, MICR2010-01188, slip op. at 3 (Middlesex Super. Ct. Nov. 7, 2012) (Tuttman, J.); Commonwealth v. Bizzarro,4 BRCR2010-00325, slip op. at 1 (Bristol Super. Ct. Aug. 29, 2012) (Garsh, J.).5 The latter three cases presented a different procedural posture than the case currently before this court: in Peirce and Bizzarro, the issue of Miller arose prior to the defendants’ trials;6 in Brown, the Miller issue arose after the defendant’s trial but prior to sentencing.7

The defendant in Jackson is also in a different position than Halbert is in this case. There, the Miller issue arose in the defendant’s new trial after the defendant’s 2006 trial, conviction, and sentencing. See Jackson, MICR2009-00963, slip op. at 1-2. The court held that the defendant would be eligible for parole after serving fifteen years,8 which he had not yet done; “[a]bsent a change in the statutes enacted by the legislature, or some further clarification by the Supreme Judicial Court, the defendant will eventually be parole eligible and his hearing shall be conducted pursuant to the provisions of G.L.c. 127, §133A.” Jackson, SUCR2002-10303, slip op. at 3.

The issue of retroactivily was not before the court in Jackson because the defendant’s direct appeal to the Supreme Judicial Court was pending at the time Miller was decided. See Teague u. Lane, 489 U.S. 288, 303 (1989) (“[N]ew rules should always be applied retroactively to cases on direct review . . .”); see, e.g., Commonwealth v. Emeny, 463 Mass. 138, 145 n.9 (2012) (holding that defendant received benefit of decisions “because his case was awaiting appellate review when those cases were decided”). Conversely, here, the judgment in this case is final, and the review that Halbert seeks is collateral.

Massachusetts has adopted the rule of retroactivity the United States Supreme Court set out in Teague v. Lane, 489 U.S. 288 (1989). See Commonwealth v. Bray, 407 Mass. 296, 300-01 (1990) (adopting Teague rule); see also Commonwealth v. Melendez-Diaz, 460 Mass. 238, 248 (2011) (reaffirming adoption of Teague rule). The Court in Teague held that a case announcing a new rule9 “generally should not be applied retroactively to cases on collateral review” unless (1) “it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe!,]’ ” or (2) “it requires the observance of ‘those procedures that . . . are ’’implicit in the concept of ordered liberty." ’ “ 489 U.S. at 305, 307 (ellipses in original) (citations omitted). The second exception is ’’reserved for watershed rules of criminal procedure],]" id. at 311, “and has never been applied by the Supreme Court.” Commonwealth v. Clarke, 460 Mass. 30, 34 n.8 (2011), abrogated on other grounds by Chaidez v. United States, 133 S.Ct. 1103, 1107 (Feb. 20, 2013) (resolving split among federal and state courts and holding that Padilla v. Kentucky, 559 U.S. 356 (2010), does not apply retroactively).

The first exception applies if the new rule places individual conduct “outside the realm of criminal behavior.” Id., citing Teague, 489 U.S. at 311. Miller does not decriminalize murder if the offender is under the age of eighteen at the time he committed the crime, but it does place a limit on the extent of that offender’s punishment by rendering unconstitutional the mandatory elimination of parole eligibility. See 132 S.Ct. at 2460; see, e.g.',' Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (holding that first Teague exception applies to “constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish” because without retroactive application, there is “ ‘a significant risk that a defendant’... faces a punishment that the law cannot impose upon him”). The court therefore anticipates that the Supreme Judicial Court will apply Miller retroactively to cases on collateral review.10 Contra Melendez-Diaz, 460 Mass, at 239-40, 243 n.7 (holding that Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), announced “ ‘new’ rule within the meaning of’ Teague, but that new rule was not available “to the defendant in this [collateral] appeal from the denial of his motion for a new trial” because neither Teague exception applied).

Diatchenko v. District Attorney for the Suffolk District, SJC-11453, is scheduled for argument in the Supreme Judicial Court on September 4, 2013. The Justices solicited amicus briefs on the topic of whether Miller “applies to the petitioner in this case, who as a juvenile committed murder in the first degree and was tried, convicted, and sentenced to a mandatory life term without the possibility of parole before [Miller] was decided . . . , and who remains incarcerated on that conviction and sentence . . .” Diatchenko, SJC-11453, Paper #3 (May 24, 2013); see Commonwealth v. Diatchenko, 387 Mass. 718, 729 (1982) (affirming defendant’s conviction on direct review).11 The matter of retroactivity will therefore be relevant to the Court’s analysis because, like Halbert here, the petitioner’s case is final. The Commonwealth urges this court to *411stay its consideration of Halbert’s sentencing arguments while that case is pending.12

Based on this court’s conclusion that Miller applies retroactively to defendants seeking collateral review, however, Halbert’s sentence, as it currently stands, is unconstitutional. A stay of any action on Halbert’s motion to correct that sentence would therefore not be appropriate.13 Accordingly, the defendant’s motion for immediate correction of unlawful sentence is accordingly ALLOWED, and the Commonwealth’s motion for a stay is DENIED. The defendant’s mittimus shall be corrected to read that he is eligible for parole after fifteen years pursuant to G.L.c. 127, §133A (2011). See supra n. 8.

The court premises this decision on the condition that it will be consistent with the Supreme Judicial Court’s decisions in the two pending appeals. In the event that the Supreme Judicial Court concludes that Miller does not apply retroactively to defendants on collateral review such as Halbert, or does conclude that Miller applies but also requires that the sentencing court hold a hearing to determine whether to eliminate a defendant’s parole eligibility, see supra n.2, this court will conduct a sua sponte-14 reconsideration of this matter in order to conform to the Supreme Judicial Court’s holding(s).

ORDER

For the foregoing reasons, Halbert’s motion for correction of sentence is ALLOWED and the Commonwealth’s motion for a stay is DENIED. The defendant’s mittimus shall be corrected to read that he is eligible for parole after fifteen years pursuant to G.L.c. 127, §133A (2011).