Opinion
No. 15–P–387.
05-24-2016
COMMONWEALTH v. Gibney GABRIEL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals pro se from the denial of his motion for a new trial. The defendant contends that he is entitled to a new trial because he was seventeen years old in 1989 when he was indicted and prosecuted directly in the Superior Court without being provided a transfer hearing under G.L. c. 119, § 61 (since repealed by St.1996, c. 200, § 7). He also claims that his guilty plea was not entered intelligently because after he pleaded guilty, the Legislature decreased the frequency that the parole board reconsiders the parole of inmates serving life sentences, from every three years to every five years. Finally, he asserts that this statutory change increased his sentence in violation of the prohibition against ex post facto laws. We affirm the order denying the motion for a new trial.
Background. On September 7, 1988, the defendant shot Michael Alexander during an altercation outside of his home. Alexander died the following day at Boston City Hospital. The defendant was seventeen years old at the time.
On January 13, 1989, a grand jury indicted the defendant on charges of murder in the first degree, assault with intent to murder, and unlawfully carrying a handgun. On September 11, 1989, the defendant (now eighteen years old) pleaded guilty to the lesser included offense of murder in the second degree and to the other charges. The judge sentenced him to life imprisonment on the murder charge and to concurrent terms of years on the other charges.
After serving sixteen years of his sentence, the defendant was paroled on December 5, 2005. He was found in violation of the terms of parole three times. Following the third violation, he was arrested on October 11, 2010, on a parole warrant. After a hearing, the parole board denied the defendant further parole in a decision dated October 4, 2012. In that decision, the parole board set the next parole review for four years from that date. The defendant then filed his motion for a new trial, which the plea judge denied.
Discussion. 1. General Laws c. 119, § 61. The defendant, who was born in May, 1971, was seventeen when he committed the crime and was arrested and charged. At the time, it was well established that persons sixteen years of age and younger were treated as juveniles; that is, criminal charges against them were treated as juvenile delinquency proceedings. Persons seventeen years of age and older were treated as adults; that is, regular criminal charges were brought against them in the so-called “adult” courts. See G.L. c. 119, § 52, as appearing in St.1960, c. 353, § 1 (defining “delinquent child” as “a child between seven and seventeen ... who commits any offence against a law of the commonwealth [emphasis supplied] ); G.L. c. 119, § 74, as appearing in St.1985, c. 794, § 5 (“Except as hereinafter provided, no criminal proceeding shall be begun against any person who prior to his seventeenth birthday commits an offense ...” [emphasis supplied] ). Indeed, it was not until September 18, 2013, that the Commonwealth expanded the Juvenile Court's jurisdiction and first began to treat seventeen year olds as juveniles. See Commonwealth v. Watts, 468 Mass. 49, 51 (2014) (“The general effect of [St.2013, c. 84,] is to treat children accused of violating criminal statutes who are seventeen years of age at the time as delinquent children or youthful offenders, and no longer as adult criminals”).
The fact that seventeen year olds are now treated as juveniles does not help the defendant. “The act confers no benefit on those already convicted and sentenced in Superior or District Court for offenses committed by persons who were seventeen years of age.” Watts, supra at 57.
“Prior to 1996, for the Commonwealth to prosecute a juvenile as an adult, it had to request a transfer hearing, pursuant to G.L. c. 119, § 61, after which a Juvenile Court judge determined whether the juvenile should be tried as an adult.” Commonwealth v. Nanny, 462 Mass. 798, 800 (2012). The transfer hearing procedure applied only to offenses committed “while the child was between his fourteenth and seventeenth birthdays.” G.L. c. 119, § 61, as appearing in St.1975, c. 840, § 1. See Commonwealth v. Traylor, 29 Mass.App.Ct. 584, 585 n. 1 (1990). This language is not ambiguous in the least: it encompasses juveniles aged fourteen, fifteen, and sixteen, that is, from the day they turn fourteen (i.e., their fourteenth birthday) until the day before they turn seventeen (i.e., the day before their seventeenth birthday). This makes perfect sense in light of the fact that seventeen year olds were considered adults, not juveniles, at the time.
In Commonwealth v. Jones, 400 Mass. 544, 545 (1987), the defendant, who was seventeen, and a sixteen year old accomplice committed a murder together. The defendant was convicted of murder in the first degree as an adult and sentenced to life without parole; the juvenile was adjudicated delinquent, committed to what was then known as the Division of Youth Services, and released when he turned eighteen. Ibid. The court found no basis to offer the defendant relief despite the “disparate treatment given to the juvenile who was sixteen years old at the time of the crime.” Id . at 549. “The Legislature has drawn the line between juvenile and adult wrongdoing, and we must adhere to it within constitutional limits.” Ibid.
Simply put, because the defendant here was not a juvenile when he committed the crime, he was not entitled to a transfer hearing.
2. Intelligence of the plea. “A postsentence motion to withdraw a plea is treated as a motion for a new trial.” Commonwealth v. Conaghan, 433 Mass. 105, 106 (2000). “Although the disposition of such a motion is within the discretion of the judge, a rigorous standard must be applied and a judge may only allow such a motion ‘if it appears that justice may not have been done.’ “ Commonwealth v. Berrios, 447 Mass. 701, 708 (2006), quoting from Commonwealth v. DeMarco, 387 Mass. 481, 482 (1982). Absent “a credible reason which outweighs the risk of prejudice to the Commonwealth,” the judge should deny the motion. DeMarco, supra at 486. “The judge's disposition of the motion will not be reversed unless it is shown to be an abuse of discretion that produces a manifestly unjust result.” Commonwealth v. Pingaro, 44 Mass.App.Ct. 41, 48 (1997).
The defendant contends that the judge erroneously denied his motion to withdraw his guilty plea. “In the context of a guilty plea, justice is not done when a defendant's plea of guilty is not intelligent and voluntary.” Commonwealth v. Hiskin, 68 Mass.App.Ct. 633, 637 (2007). “A defendant's plea is intelligent when made with understanding of the nature of the charges (understanding of the law in relation to the facts) and the consequences of his plea (the legal consequences and constitutional rights he forgoes by pleading guilty rather than proceeding to trial).” Id. at 638.
Here, the defendant argues that his plea was not intelligent because he pleaded guilty with the understanding that he would be eligible for parole consideration every three years after serving the minimum sentence of fifteen years. This was true at the time the defendant pleaded guilty. In 1996, however, the Legislature increased the period for reconsideration from three years to five. See G.L. c. 127, § 133A, as amended by St.1996, c. 43.
This procedural change does not retroactively make the defendant's plea unintelligent at the time it was entered. See Commonwealth v. Perry, 389 Mass. 464, 466 n. 3 (1983) (record must demonstrate “that the plea was intelligent and voluntary at the time it was entered ” [emphasis supplied] ). “The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” Id. at 471, quoting from Brady v. United States, 397 U.S. 742, 757 (1970). “A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action.” Brady, supra. Moreover, “[i]t is settled in Massachusetts that a defendant need not be advised of contingent or collateral consequences” of his guilty plea, Commonwealth v. Hason, 27 Mass.App.Ct. 840, 843 (1989), and the frequency of parole review hearings is one of those collateral matters. “A judge is ‘not required to advise the defendant on the legal and practical complexities of the parole law.’ “ Ibid., quoting from Commonwealth v. Stanton, 2 Mass.App.Ct. 614, 622 (1974).
3. Ex post facto. We are not persuaded by the defendant's claim that the statutory change to the frequency of parole reviews increased his punishment in violation of the prohibition against ex post facto laws. See California Dept. of Corrections v. Morales, 514 U.S. 499, 507–512 (1995) (decreasing frequency of parole suitability hearings from every year to up to every three years did not violate ex post facto clause); Garner v. Jones, 529 U.S. 244, 256 (2000) (decreasing frequency of parole review hearings from every three years to every eight years does not violate ex post facto clause absent evidence of “significant risk of increased punishment”); Crotty v. Massachusetts Parole Bd., U.S. Dist. Ct., No. 10–40245, slip op. at 5 (D.Mass. Feb. 23, 2012) (1996 amendment to G.L. c. 127, § 133A, did not violate ex post facto clause). Accordingly, the judge did not err in denying the defendant's motion for a new trial on this ground. Moreover, even if the defendant had a colorable claim that the amendment to G.L. c. 127, § 133A, is unconstitutional, in the context of the defendant's criminal case the parole board is not a party, and it is questionable that the judge would possess the ability to provide effective relief.
Order denying motion for new trial affirmed.