Opinion
16-P-554
04-14-2017
Bodhisattva SKANDHA v. COMMONWEALTH & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1960, plaintiff Bodhisattva Skandha (then known as Richard Seaver) stabbed his mother to death and hid her body in a closet. After he confessed to the crime and pleaded guilty to murder in the second degree, he was sentenced to life imprisonment. In 1973, Governor Francis Sargent commuted Skandha's sentence to a term of thirty years to life, which made him immediately eligible for parole. He was first released on parole on January 25, 1974. However, because of various parole violations, he was reincarcerated from time to time, and he continuously has been incarcerated since 1992. In 2014, Skandha brought an action in Superior Court to challenge his continued incarceration, seeking declaratory relief, injunctive relief, and damages. Before us now is his appeal of the judgment of dismissal in response to the defendants' motions to dismiss that action or, in the alternative, for summary judgment. We affirm.
There is some question as to whether the judge allowed the motion as one to dismiss or as one for summary judgment. Given that the material facts in any event are not in dispute, this question is inconsequential.
1. Alleged procedural violations. Skandha argues that he in effect received a conditional pardon and that, based on this, the defendants have violated his procedural rights in various respects. For example, he argues that his return to custody could have been accomplished only through the procedures set forth in G. L. c. 127, §§ 155, 156. He additionally argues that once his sentence was commuted, it became one for "a term of years," and that therefore he is entitled to annual parole review pursuant to G. L. c. 127, § 133.
We discern no merit in such arguments. Skandha did not receive a pardon (conditional or otherwise); he received a commutation of his sentence. See Hicks v. Commissioner of Correction, 425 Mass. 1014, 1015 (1997). Moreover, his particular commutation did not change his status as someone "serving a sentence for life," G. L. c. 127, § 133A, as appearing in St. 2012, c. 192, § 37; it simply made him eligible for parole sooner. Hicks, supra at 1014 n.1. See 120 Code Mass. Regs. § 100.00 (2000) ("[F]or individuals serving a sentence that contains life as the maximum term of sentence ... the parole eligibility and parole hearing processes are governed by M.G.L. c. 127, § 133A").
Skandha seeks to make much of the fact that in Opinion of the Justices, 190 Mass. 616, 621 (1906), the Supreme Judicial Court referred to a commutation as "a pardon upon condition that the convict voluntarily submits to a lighter punishment." In this manner, Skandha seeks to rely on a quotation taken out of context from an advisory opinion that is more than one century old. We do not find such argument persuasive.
2. Alleged waiver of parole board jurisdiction. Relying principally on our opinion in Zullo, petitioner, 37 Mass. App. Ct. 371 (1994), Skandha argues that the parole board (board) lost jurisdiction of him by unreasonably delaying the revocation of his parole. That opinion has no precedential value, because the Supreme Judicial Court granted further appellate review and issued an opinion of its own. Zullo, petitioner, 420 Mass. 872, 876-877 (1995). Before addressing the import of that case, we first lay out the following background facts, which appear to be uncontested.
After Skandha's first release on parole in January of 1974, the board instituted revocation proceedings based on violations such as unreported absences from the Commonwealth. Preliminary revocation hearings were held on June 27, 1974, and December 18, 1974; each resulted in a warning being issued. At some point, Skandha traveled to Florida where he was arrested and briefly incarcerated for larceny of a firearm. Based on his whereabouts being unknown, the board provisionally revoked his parole on April 12, 1976. According to Skandha, the board learned he was in Florida, but decided not to extradite him because of insufficient funds. Instead, the board withdrew the revocation warrant on August 24, 1976.
Skandha subsequently moved to California with the knowledge of the board, which transferred parole supervision of him to that State in 1977. In 1984, Skandha was arrested in California after he broke a window while intoxicated, and his parole was preliminarily revoked on September 10, 1984. The stated grounds were for "[i]rresponsible [c]onduct," including failing to inform his California parole officer of his whereabouts and for leaving California for more than twenty-four hours without permission. Skandha was returned to the custody of the Department of Correction on January 25, 1985, and his parole was revoked on March 14, 1985. He maintains that the board somehow waived jurisdiction over him by not effecting this parole revocation sooner. After that 1985 revocation, Skandha was paroled and reincarcerated twice more for a host of new parole violations.
We discern no merit to Skandha's argument. In fact, it appears that it may well be moot. See generally Robinson v. Contributory Retirement Appeal Bd., 62 Mass. App. Ct. 935, 937 (2005) (police officer's challenge to denial of disability benefits moot where his subsequent criminal conviction rendered resolution of legal question "purely academic"). Unlike the parolee in Zullo, petitioner, the terms of Skandha's sentence, even as modified by the commutation warrant, subjected him to parole for life. Under no reasonable interpretation of Zullo, petitioner would Skandha be relieved from his status as a lifetime parolee. As noted, Skandha was paroled twice after the 1985 revocation, and each time his parole was revoked for new violations. Therefore, even if Skandha could demonstrate that the board had been unreasonably dilatory in enforcing his initial parole violations, this could not entitle him to release. Nor has he shown how a ruling in his favor with regard to the propriety of his initial parole revocation otherwise would relieve him of any appreciable collateral consequences. Compare Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703-707 (1976) (discussing nuances of mootness when parolee seeks to challenge parole decisions after his release).
The defendants highlight that the actions and inaction of the board at issue occurred three or more decades ago. They argue that they are prejudiced in defending against Skandha's Zullo claim and that Skandha is time barred from raising such issues based either on laches or on various statutes of limitations. Although we are not unsympathetic to the defendants' arguments, we do not rest on that ground.
In Zullo, petitioner, the parolee had been on parole for the remainder of a ten-year sentence. 420 Mass. at 872-873. He was able to craft a potentially compelling argument that the board's lengthy inaction in executing a revocation warrant precluded it from seeking to revoke his parole many years after his sentence otherwise would have expired. Id. at 876-878.
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In any event, under the facts that Skandha alleged, he has not made a sufficient showing of how the board's inaction with regard to his initial parole violations could have barred it from revoking his parole in 1985. In 1974, the board acted promptly on the initial violations, and the fact that it chose to issue warnings instead of revoking his parole plainly did not cause any waiver of jurisdiction. After it preliminarily revoked Skandha's parole in 1976 once his whereabouts had become unknown, the board did not leave this matter hanging, but instead withdrew the warrant four months later. Skandha's 1985 parole revocation was based on violations in California, not on those that had been the subject of the 1976 revocation proceedings. To be sure, Skandha alleges in an affidavit that after initially meeting with his California parole officer in 1977, he "never saw" a parole officer there for the next eight years, suggesting that California parole officials—who were performing parole supervision in lieu of the board—might have been less than diligent in their oversight. However, he offers no detail for his failure to "see" his assigned parole officers, an absence that is particularly telling given his demonstrated pattern of evading parole officers. In short, this case presents none of the alleged unfairness potentially at issue in Zullo, petitioner.
To the extent we have not expressly addressed subsidiary arguments made by Skandha, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.