Commonwealth v. Sajid S., a juvenile

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-13505

COMMONWEALTH vs. SAJID S., a juvenile.

Suffolk. March 4, 2024. – July 9, 2024.

Present: Budd, C.J., Kafker, Wendlandt, Georges, & Dewar, JJ.

Constitutional Law, Sentence, Cruel and unusual punishment.

Practice, Criminal, Sentence, Probation. Juvenile Court,

Probation.

Indictments found and returned in the Suffolk County

Division of the Juvenile Court Department on December 30, 2004.

A motion for relief from unlawful restraint, filed on March

21, 2023, was heard by Peter M. Coyne, J.

The Supreme Judicial Court granted an application for

direct appellate review.

Matthew J. Koes for the juvenile.

Kenneth E. Steinfield, Assistant District Attorney, for the

Commonwealth.

Eva G. Jellison & Danya F. Fullerton, for youth advocacy

division of the Committee for Public Counsel Services, amicus

curiae, submitted a brief.

WENDLANDT, J. When it comes to sentencing, as we have

repeatedly and recently stated, young persons are

2

constitutionally different. See Commonwealth v. Mattis, 493

Mass. 216, 238 (2024). In this case, we consider whether the

proscription against "cruel or unusual" punishments embodied in

art. 26 of the Massachusetts Declaration of Rights prohibits the

sentence imposed on the juvenile,1 who in November 2004, as a

sixteen year old, stalked and robbed one victim at gunpoint

before repeatedly raping her in her home, and then bound,

gagged, and robbed a second victim -- the first victim's

roommate -- when she arrived home. He was sentenced to a period

of incarceration in State prison for his convictions of, inter

alia, aggravated rape -- a period compliant with art. 26's

requirement that, in the absence of extraordinary circumstances,

the period of parole ineligible incarceration for a juvenile

convicted of nonhomicide offenses not exceed that of a juvenile

convicted of murder. See Commonwealth v. Perez, 477 Mass. 677,

686 (2017) (Perez I), S.C., 480 Mass. 562 (2018) (Perez II). He

was further given a five-year period of straight probation for

the remaining nonhomicide offenses to commence from and after

his release.

Because, as an adult of more than thirty years of age, he

allegedly violated the conditions of probation, and because, as

1 Although the juvenile is now an adult, we refer to him as

the juvenile for consistency.

3

a result of the violation, he both was held on a probation

detainer and faces a potential sentence that might include a

period of incarceration on the remaining nonhomicide offenses he

committed as a juvenile, the now-grown juvenile contends that

art. 26's proscription of cruel or unusual punishments was

violated. We conclude that imposing probation as part of such

an integrated sentencing structure does not run afoul of art.

26's safeguards peculiar to juveniles. Further concluding that

suffering the consequences of a violation of probation also is

constitutional, we affirm the order of the Juvenile Court judge

denying the juvenile's second motion for relief from unlawful

restraint.2

1. Background. a. Facts.3 On an evening in

November 2004, the juvenile, then sixteen years old, followed

the victim home, ambushed her outside of her apartment, and, at

gunpoint, demanded that she give him money. The juvenile then

forced the victim into her apartment and repeatedly raped her.

He also bound and gagged her.

2 We acknowledge the amicus brief submitted by the youth

advocacy division of the Committee for Public Counsel Services.

3 The juvenile tendered a plea and admitted to sufficient

facts to warrant findings on the offenses discussed infra.

4

The second victim, the victim's roommate, came home, and

the juvenile bound and gagged her as well. The juvenile stole

property from both victims and fled.

b. Prior proceedings. In March 2007, the juvenile

tendered a plea admitting to sufficient facts and was

adjudicated as a youthful offender on one count of home

invasion, G. L. c. 265, § 18C; three counts of aggravated rape,

G. L. c. 265, § 22 (a); two counts of armed robbery, G. L.

c. 265, § 17; two counts of kidnapping, G. L. c. 265, § 26; two

counts of assault and battery by means of a dangerous weapon,

G. L. c. 265, § 15A (b); one count of using a firearm in a

felony, G. L. c. 265, § 18B; and one count of carrying a firearm

without a license, G. L. c. 269, § 10 (a). He was sentenced to

from sixteen to twenty years in State prison for the aggravated

rape charges;4 two and one-half to three years in State prison

for carrying a firearm without a license, to be served

concurrently with the aggravated rape sentence; and ten years of

probation for the remaining charges, to be served from and after

his release from State prison.

4 The juvenile was given credit for 838 days of time served

awaiting trial.

5

In November 2020, after sixteen years of incarceration, the

juvenile became eligible for parole. However, the parole board

denied each of his two applications for parole.

i. First Perez I motion. In July 2021, following this

court's decision in Perez I, the juvenile filed a motion for

release from unlawful restraint pursuant to Mass. R. Crim. P.

30 (a), as appearing in 435 Mass. 1501 (2001), contending that

his original sentence violated art. 26 because it required him

to serve a period of incarceration during which he was not

eligible for parole (sixteen years) that exceeded the then-

applicable fifteen-year parole ineligibility period of a

juvenile convicted of murder.5 The Commonwealth did not dispute

5 Importantly, a juvenile convicted of murder in 2007 -- the

same year that the juvenile tendered his plea -- became eligible

for parole after fifteen years of incarceration. See G. L.

c. 127, § 133A, as amended through St. 2000, c. 159, § 230

("Every prisoner who is serving a sentence for life in a

correctional institution of the commonwealth . . . shall be

eligible for parole . . . within sixty days before the

expiration of fifteen years of such sentence"); Commonwealth v.

Brown, 466 Mass. 676, 678 (2013) (juvenile convicted of murder

"may only be sentenced to the lesser punishment under G. L.

c. 265, § 2, of mandatory life in prison with the possibility of

parole set pursuant to the parole eligibility statute in effect

at the time of [his] crime, G. L. c. 127, § 133A, as amended

through St. 2000, c. 159, § 230, providing for parole

eligibility in fifteen years").

Thereafter, the Legislature amended G. L. c. 127, § 133A.

As amended, it provides that every prisoner serving a life

sentence "shall be eligible for parole at the expiration of the

minimum term fixed by the court under [G. L. c. 279, § 24]."

G. L. c. 127, § 133A, as amended through St. 2018, c. 69, § 98.

General Laws c. 279, § 24, in turn, sets parole eligibility

6

the juvenile's contention and chose to forgo a Miller hearing,6

discussed infra, to attempt to show that extraordinary

circumstances warranted treating the juvenile more harshly for

parole purposes than a juvenile convicted of murder. The motion

was allowed, and the original sentence was vacated.

Finding that the juvenile's behavior had improved over

time, that he accepted responsibility for his crimes, and that

he "availed himself [of the] social and educational

opportunities" provided to him while incarcerated, the motion

judge rejected the Commonwealth's proposal regarding

resentencing.7 Instead, he adopted the juvenile's proposal

regarding resentencing. Specifically, the judge resentenced the

juvenile to from fifteen years to fifteen years and one day for

the aggravated rape offenses; two and one-half to three years

for the offense of carrying a firearm without a license, to be

served concurrently with the sentence for the aggravated rape

between twenty and thirty years for juveniles convicted of

murder in the first degree; between twenty-five and thirty years

if the murder was committed with deliberate premeditation; and

at thirty years if the murder was committed with extreme

atrocity or cruelty. G. L. c. 279, § 24, as amended through

St. 2014, c. 189, § 6. These amended periods do not apply to

our analysis in the present case.

6 See Miller v. Alabama, 567 U.S. 460 (2012).

7 The Commonwealth had proposed a resentencing structure as

follows: fifteen to twenty years in State prison (with parole-

eligibility beginning at fifteen years) and ten years of

probation from and after his release for the remaining offenses.

7

offenses; and five years of probation for the remaining

offenses, to be served from and after the commitment to State

prison, beginning on the date of the juvenile's release

(restructured sentence).

As discussed infra, the restructured sentence thus

conformed to the constitutional requirement that, in the absence

of extraordinary circumstances, the juvenile's period of parole

ineligibility not exceed that of a juvenile convicted of murder.

See Perez I, 477 Mass. at 686. But it potentially exposed the

juvenile to further incarceration should he violate the

conditions of probation.

Because he had already served the incarcerated portion of

the restructured sentence, one day after the resentencing, in

January 2022, the juvenile was discharged from the Department of

Correction. He returned to court the following day, had a

colloquy with the judge about his probation conditions, and

signed a conditions of probation form.

ii. Second Perez I motion. Less than seven months after

his release, in August 2022, the juvenile, now a thirty-three

year old adult, was charged with multiple firearm and drug

offenses, resisting arrest, unarmed burglary, and unlicensed and

uninsured operation of a motor vehicle. The juvenile was

alleged to have violated his probation "as a result of [the] new

8

arrest." A notice of violation of probation was issued, and the

juvenile was arrested and held on a probation detainer.

The juvenile filed a second motion for relief from unlawful

restraint pursuant to Mass. R. Crim. P. 30 (a), and a

corresponding motion for release from the probation detainer

pending a decision on the second motion for relief.8 Both

motions were denied, and the juvenile appealed from the denial

of his second motion for relief from unlawful restraint. We

granted the juvenile's application for direct appellate review.

2. Discussion. a. Standard of review. We review the

juvenile's constitutional challenge to his restructured sentence

de novo, accepting the motion judge's findings of fact absent a

showing of clear error. See Commonwealth v. DiBenedetto, 491

Mass. 390, 396 (2023).

8 Also in August 2022, the juvenile was held as a dangerous

person pursuant to G. L. c. 276, § 58A (Section 58A), in

connection with the criminal matter that formed the basis for

his probation detainer. In January 2023, however, the juvenile

was no longer being held pursuant to Section 58A and was

released on personal recognizance, but continued to be held on

the probation detainer. Thus, when the juvenile filed his

second motion for relief in March 2023, he was being held solely

on his probation detainer.

In May 2023, the juvenile was arraigned in the Superior

Court for his conduct pertaining to the August 2022 arrest and

held pending a dangerousness hearing pursuant to Section 58A.

The Superior Court allowed the Commonwealth's Section 58A motion

on May 11, 2023, and the juvenile was held pursuant to Section

58A until January 24, 2024. As of February 2024, the juvenile

was being held pursuant to the probation detainer.

9

b. Constitutional framework. We need not belabor the

constitutional framework that guides the punishments that may be

imposed on young persons; these principles have been repeatedly

and recently set forth. See, e.g., Miller v. Alabama, 567 U.S.

460, 469-470 (2012) (Eighth Amendment to United States

Constitution prohibits mandatory imposition of life without

parole for juveniles who commit murder); Graham v. Florida, 560

U.S. 48, 78-79 (2010) (Eighth Amendment prohibits imposition of

life without parole for juveniles who commit nonhomicide

offenses); Roper v. Simmons, 543 U.S. 551, 568-570 (2005)

(Eighth Amendment prohibits imposition of death penalty for

children);9 Mattis, 493 Mass. at 217-218, 224 (due to

contemporary standards of decency, art. 26 prohibits imposition

of life without parole for persons aged eighteen, nineteen, and

twenty where they share same attributes of youth relevant to

sentencing as juveniles); Diatchenko v. District Attorney for

the Suffolk Dist., 466 Mass. 655, 668, 671 (2013) (Diatchenko

I), S.C., 471 Mass. 12 (2015) (Diatchenko II) (art. 26 prohibits

9 We have interpreted art. 26 "more broadly than the [United

States] Supreme Court has interpreted the Eighth Amendment."

Perez I, 477 Mass. at 679. See Diatchenko v. District Attorney

for the Suffolk Dist., 466 Mass. 655, 668 (2013), S.C., 471

Mass. 12 (2015) ("We often afford criminal defendants greater

protections under the Massachusetts Declaration of Rights than

are available under corresponding provisions of the Federal

Constitution").

10

imposition of life without parole for juveniles who commit

murder, even on discretionary basis).

For present purposes it suffices briefly to recount the

guiding principle underlying our jurisprudence -- namely, that,

in light of the "evolving standards of decency that mark the

progress of a maturing society," Mattis, 493 Mass. at 224,

quoting Commonwealth v. Okoro, 471 Mass. 51, 61 (2015),

sentencing of young persons must be informed by the attributes

that define this early period of life. These attributes are

well known to parents and confirmed by the developing

neuroscience of the brain. In particular, this cohort generally

lacks maturity and has an underdeveloped sense of

responsibility, leading to recklessness, impulsivity, and

heedless risk-taking. See Roper, 543 U.S. at 561, 569-570.

Young persons are more vulnerable to negative influences and

outside pressures, including from family and peers; yet they

lack the wherewithal to change their environment. Id. at 569.

Moreover, at this early stage in life, their character is not

well formed and their traits are less fixed than their elders.

Id. at 570. These attributes of youth stem from the brain's

development. See Miller, 567 U.S. at 471-472; Graham, 560 U.S.

at 68; Roper, supra. And while these neurological developmental

markers are common to the cohort of young persons, neither the

markers nor the correlating attributes generally are fixed.

11

Children will, as children must, "grow up." Accordingly,

although they are capable of committing grave crimes, when it

comes to meting out punishments, our societal norms that inform

the scope of art. 26's protections require that their

"diminished culpability and greater prospects for reform" be

considered. Miller, supra at 471.

The Commonwealth cannot, consistent with art. 26's

prohibition against cruel or unusual punishments, simply lock

children up and throw away the key, even when they commit

murder. Condemning a child to die in prison involves a

determination that the crime committed evinces an irretrievably

depraved character -- a determination that a sentencing judge

simply cannot make "with integrity" in view of the malleability

of character that defines young persons. Diatchenko I, 466

Mass. at 670. See Mattis, 493 Mass. at 241 (Kafker, J.,

concurring). Indeed, "[i]t is difficult even for expert

psychologists to differentiate between the juvenile offender

whose crime reflects unfortunate yet transient immaturity, and

the rare juvenile offender whose crime reflects irreparable

corruption." Graham, 560 U.S. at 73, quoting Roper, 543 U.S. at

572.

Instead, to pass constitutional muster, a sentence cannot

"improperly den[y] the juvenile offender a chance to demonstrate

growth and maturity." Graham, 560 U.S. at 73. This means that

12

for young persons who commit murder, the Constitution requires

that they be given a "meaningful opportunity to obtain release

[through parole] based on demonstrated maturity and

rehabilitation." Diatchenko I, 466 Mass. at 674, quoting

Graham, supra at 75. Thus, life with the possibility of parole

is constitutional for a juvenile offender, but life without that

possibility is not. See Diatchenko I, supra at 671 ("The

unconstitutionality of this punishment arises not from the

imposition of a sentence of life in prison, but from the

absolute denial of any possibility of parole").

After a period of incarceration -- a period set by the

Legislature to comprise fifteen or more years, during which the

youth has had the benefit of time to mature, and his character

is more well formed and his traits more fixed10 -- informed

determinations as to his capacity for reform can be made and the

penological justifications for continued incarceration can be

weighed. See Graham, 560 U.S. at 71-74 (detailing the four

penological justifications for punishment –- retribution,

deterrence, incapacitation, and rehabilitation -- and inaptness

of each in view of juvenile's youthful attributes). Article 26

requires this meaningful "second look" at the merits of parole

for the now-grown individual.

10 See note 5, supra.

13

Importantly, art. 26 does not preclude the juvenile

offender who commits murder from serving a life sentence, and it

does not mandate that juveniles be granted parole; such persons,

although young, have committed a grave crime. See Diatchenko

II, 471 Mass. at 29-30 ("the art. 26 right of a juvenile . . .

offender in relation to parole . . . is not a guarantee of

eventual release"); Diatchenko I, 466 Mass. at 674 ("Our

decision should not be construed to suggest that individuals who

are under the age of eighteen when they committed murder in the

first degree necessarily should be paroled once they have served

a statutorily designated portion of their sentence"). See also

Graham, 560 U.S. at 82 ("A State need not guarantee the offender

eventual release, but . . . must provide him or her with some

realistic opportunity to obtain release").

Instead, the constitutional requirement is that judgments

as to the aptness of continued incarceration be made during a

subsequent reassessment of the individual, when he has had time

to develop and to outgrow the impetuousness inherent in youth.

This meaningful second look gives the youth the chance to show

that he has matured and outgrown the behaviors that led to his

incarceration. Perforce, however, if parole is awarded and the

individual violates a material condition of parole, he may be

reincarcerated, having demonstrated, through the violation, a

lack of rehabilitation. See Commonwealth v. Cole, 468 Mass.

14

294, 299 (2014) ("Where the parole board finds a violation of a

parole condition, the board 'may revoke a permit to be at

liberty,' G. L. c. 127, § 148, and order the parolee to be

returned to prison or jail"). In short, it is not cruel or

unusual punishment to reincarcerate an individual who has shown

an inability to comply with the conditions of parole.

Because the Constitution also mandates proportional

punishments,11 the constitutional constraints on punishing young

persons who commit murder have implications for those who commit

nonhomicide offenses, like the juvenile in the present case.12

11A tripartite test governs our analysis of whether any

term of years sentence violates art. 26's proportionality

requirement. See Cepulonis v. Commonwealth, 384 Mass. 495, 497-

499 (1981).

"To determine whether a sentence is disproportionate

requires (1) an inquiry into the nature of the offense and

the offender in light of the degree of harm to society, (2)

a comparison between the sentence imposed here and

punishments prescribed for the commission of more serious

crimes in the Commonwealth, and (3) a comparison of the

challenged penalty with the penalties prescribed for the

same offense in other jurisdictions" (quotations and

citation omitted).

Commonwealth v. Sharma, 488 Mass. 85, 89, 90 (2021) (remanding

consecutive homicide and nonhomicide sentences imposed upon

juvenile offender "for a fact-intensive proportionality analysis

under [tripartite test]").

12Although the now-grown juvenile is alleged to have

violated the conditions of probation as an adult, the

constitutional principles underlying the punishment of juveniles

are relevant to our inquiry because the sentence being

challenged is the sentence for the nonhomicide crimes he

committed when he was a juvenile.

15

See Perez I, 477 Mass. at 679. Thus, where a juvenile is

sentenced for a nonhomicide offense or offenses, the aggregate

time to be served prior to parole eligibility cannot exceed the

period applicable to a juvenile convicted of murder unless the

sentencing judge finds that extraordinary circumstances warrant

a harsher treatment for parole purposes than a juvenile

convicted of murder.13 See id. at 686. In order to show the

extraordinary circumstances warranting a longer period of parole

ineligibility, "the Commonwealth must prove that there is no

reasonable possibility of the juvenile's being rehabilitated

within the time after which a juvenile convicted of murder

becomes eligible for parole." Perez II, 480 Mass. at 571. In

short, for juveniles who commit a nonhomicide offense or

offenses, a second look generally also is warranted, and it must

occur, at the latest, on the same timetable as required for

juveniles who commit murder.

13At such a hearing, the judge must consider the so-called

Miller factors. These include:

"(1) the particular attributes of the juvenile, including

'immaturity, impetuosity, and failure to appreciate risks

and consequences'; (2) 'the family and home environment

that surrounds [the juvenile] from which he cannot usually

extricate himself'; and (3) 'the circumstances of the . . .

offense, including the extent of [the juvenile's]

participation in the conduct and the way familial and peer

pressures may have affected him.'"

Perez I, 477 Mass. at 686, quoting Miller, 567 U.S. at 477.

16

As with juveniles who commit murder, however, juveniles who

commit nonhomicide offenses are not entitled to parole; the

constitutional mandate is only that they be given a meaningful

opportunity to obtain it. See Perez II, 480 Mass. at 573

(although years of parole ineligible time "presumably provided

the defendant with the opportunity to demonstrate his own

capacity for redemption and rehabilitation[,] . . . the parole

board retains the power to allow or deny parole in the exercise

of its own judgment"). And, if granted the grace of parole, a

juvenile convicted of nonmurder offenses who violates a

condition of parole -- like the juvenile convicted of murder who

violates a parole condition -- may be held for further periods

of incarceration. See Cole, 468 Mass. at 299.

c. Probation and Perez I. In light of these

constitutional principles, we consider whether the juvenile's

restructured sentence is constitutional. Under its terms, the

juvenile was sentenced to from fifteen years to fifteen years

and one day in State prison -- a period during which he was not

eligible for parole and which mirrored the then-applicable

period of parole ineligibility of a juvenile convicted of murder

-- for the aggravated rape convictions.14 This portion of his

14The juvenile was also sentenced to from two and one-half

to three years in State prison for the offense of possession of

a firearm without a license, to be served concurrently with the

aggravated rape offenses.

17

sentence thus complied with the requirements of art. 26 as

explained in Perez I. Indeed, the juvenile does not suggest

otherwise.

His constitutional claim rests on the five years of

probation, which he was given for his remaining nonhomicide

offenses, and which began from and after the end of his State

prison sentence. The juvenile contends that this part of his

restructured sentence violates the "rule[]" from Perez I

because, when adding the potential term of incarceration

stemming from his probation violation to the fifteen-year

incarceration on his other offenses (including any time he might

be held on a probation detainer for any such probation

violation), his total parole-ineligible incarceration time might

exceed the fifteen years of parole-ineligible time for a

juvenile who committed murder. In order to expose him to this

potential additional time of incarceration, the juvenile argues,

the Commonwealth was required at the resentencing hearing to

prove that, in light of the Miller factors, see note 14, supra,

extraordinary circumstances would justify imposing a

(potentially) longer period of incarceration prior to parole

eligibility than that applicable to a juvenile offender who

committed murder. The argument rests on a misapprehension of

our holding in Perez I.

18

To begin, in Perez I, the court addressed only the parole

eligibility date fixed according to the aggregate term of

incarceration imposed at the time of sentencing.15 See

Commonwealth v. Lutskov, 480 Mass. 575, 584 n.7 (2018) ("Perez I

. . . focuses on the parole eligibility date at the time of

sentencing"); Perez I, 477 Mass. at 683 ("Our specific inquiry

here is whether the requirement of proportionality bars the

imposition, on a juvenile defendant, of consecutive sentences

for nonmurder offenses with a resulting parole eligibility date

that exceeds that applicable to juveniles convicted of murder"

[emphasis added]). The court did not consider any potential

further period of incarceration resulting from a future

hypothetical probation violation. Here, at the time of

resentencing, the juvenile's restructured sentence imposed an

"aggregate" fifteen-year term of incarceration,16 which was equal

15"[A]ggregation" or the "aggregation rule" refers to the

process by which a parole eligibility date is calculated when an

offender receives consecutive prison sentences. Sharma, 488

Mass. at 87, quoting Dinkins v. Massachusetts Parole Bd., 486

Mass. 605, 609 (2021). In these instances, an offender's

"parole eligibility date is calculated by aggregating the

minimum parole eligibility dates for each component sentence and

using the latest date as the parole eligibility date." Sharma,

supra, quoting Dinkins, supra. See, e.g., Perez I, 477 Mass. at

678 (defendant sentenced to "multiple concurrent and consecutive

terms, resulting in an aggregate sentence of thirty-two and one-

half years").

16The restructured sentence did not include consecutive

prison terms. See note 15, supra.

19

to the period of parole ineligibility for a juvenile convicted

of murder. Thus, the sentence imposed at the time of

resentencing complied with our conclusion in Perez I.

To be sure, because of the probationary term given on the

remaining nonhomicide offenses, at the time of resentencing

there existed the potential for a further period of

incarceration if the juvenile violated a condition of probation

after his release from State prison. Contrary to the juvenile's

claim, however, the probationary term was consistent with the

requirements of art. 26 as applied to juvenile offenders. Far

from locking him up and throwing away the key, the probationary

term provided the juvenile with an opportunity even more

generous than the constitutionally required "second look" at a

time when he had matured.

"Probation, whether 'straight' or coupled with a suspended

sentence, is a legal disposition which allows a criminal

offender to remain in the community subject to certain

conditions . . . ."17 Commonwealth v. Durling, 407 Mass. 108,

17A convicted person on probation generally is subject to

several conditions; when a violation is alleged, as occurred

here, the probation officer "surrenders" the convicted person to

the court, subjecting the person to possible revocation of

probation. Commonwealth v. Durling, 407 Mass. 108, 111 (1990).

At the revocation hearing, the judge must determine, as a

factual matter, whether the convicted person has violated the

conditions of probation. Id. If the judge determines that

there has been a violation, the judge can either revoke the

probation and sentence of the convicted person or, if

20

111 (1990). "The purpose of probation . . . 'in large part is

to enable the [convicted] person to get on his feet, to become

law abiding and to lead a useful and upright life under the

fostering influence of the probation officer.'" Commonwealth v.

Rainey, 491 Mass. 632, 637 (2023), quoting Commonwealth v.

Wilcox, 446 Mass. 61, 64 (2006). See Commonwealth v. Roderick,

490 Mass. 669, 681 (2022) ("probation long has been considered

an act of grace more than an act of retribution, a means of

protecting the public while sparing the probationer from

incarceration" [quotation and citation omitted]); Commonwealth

v. Feliz, 481 Mass. 689, 707 (2019), S.C., 486 Mass. 510 (2020)

(distinct goal of probation is "[r]ehabilitation of the

probationer").

In sum, the juvenile here was given more than the second

look required by art. 26, which provides juvenile offenders only

with an opportunity, albeit a meaningful opportunity, to

reassess the continued merits of incarceration but is no

guarantee that the juvenile actually will be released into the

community. By contrast, the probation term imposed on the

juvenile here allowed him actually to be released from continued

incarceration subject to conditions. See note 18, supra.

appropriate, modify the terms of probation. Id. "How best to

deal with the probationer is within the judge's discretion."

Id.

21

Similarly, the fact that the now-grown juvenile violated

the conditions of his probation does not transform the otherwise

constitutional sentence into an unconstitutional one. Like a

juvenile offender who is granted parole, violates the terms

thereof, and has his parole revoked, the juvenile here may face

a further term of incarceration as a result of probation

violation and revocation; nothing in art. 26 requires otherwise.

Compare Cole, 468 Mass. at 309 ("When a parolee violates a

condition of parole, the parole board has the authority to

revoke the parole and return the parolee to prison or jail for

the balance of the committed sentence"), with Commonwealth v.

Goodwin, 458 Mass. 11, 15 (2010) ("If a defendant violates one

or more conditions of probation, a judge may revoke his

probation and sentence him to a term of imprisonment for his

underlying conviction").18

18While probation and parole are "generally separate"

systems, Wilcox, 446 Mass. at 64 n.7, the two are often

analogized and treated interchangeably. See, e.g., Gagnon v.

Scarpelli, 411 U.S. 778, 782 (1973) (right to hearing for

parolees extends to probationers because no "difference relevant

to the guarantee of due process [exists] between the revocation

of parole and the revocation of probation"); Durling, 407 Mass.

at 113 (listing six due process requirements that apply to both

probation and parole revocation proceedings). But see

Commonwealth v. Moore, 473 Mass. 481, 485-486 (2016) ("parolees

have an expectation of privacy that is diminished beyond that of

probationers because parole is more akin to imprisonment than

probation is" [quotation and citation omitted]).

22

Of course, if, in connection with the probation revocation

process, the judge finds that the juvenile has violated

probation, further determines that probation should be revoked,

and resentences the juvenile on the remaining nonhomicide

offenses, the judge must do so within the constraints of, inter

alia, the Eighth Amendment19 and art. 26.20

Pertinently, because the juvenile has already served a term

of incarceration for the other nonhomicide offenses stemming

from the same crime spree -- a fifteen-year period, equal to the

period of parole ineligibility applicable to a juvenile offender

who committed murder, see note 5, supra -- art. 26 requires

that, if the judge imposes a term of incarceration after finding

a probation violation, the juvenile be treated for parole

eligibility purposes no more harshly than a juvenile offender

who committed murder.21 See Perez I, 477 Mass. at 685.

19Thus, in Graham, 560 U.S. at 57, 82, the Supreme Court

concluded that a sentence of life without the possibility of

parole for the juvenile offender's convictions of nonhomicide

offenses, which was imposed following a determination that the

juvenile offender had committed a breach of a condition of

probation, violated the Eighth Amendment.

20The sentence must comply with the traditional tripartite

test for proportional punishments. See note 12, supra.

21The Commonwealth has not shown extraordinary

circumstances requiring treating the juvenile more harshly for

parole eligibility purposes. See Perez II, 480 Mass. at 571;

Perez I, 477 Mass. at 685.

23

Specifically, a juvenile offender who commits murder,

receives parole after a period of parole ineligibility, and

violates the conditions of parole is at risk of parole

revocation. If parole is revoked, the juvenile offender is

returned to incarceration, with periodic reviews for

determinations of parole at each set-back22 period. See 120 Code

Mass. Regs. § 303.24(1)(f)(2) (2017) (if parole board denies

reparole after parole revocation hearing, "the case shall be

placed back on the docket for a regularly scheduled review

hearing, pursuant to 120 [Code Mass. Regs. §] 301.01"); 120 Code

Mass. Regs. § 301.01(5) (2017) ("In cases involving inmates

serving life sentences with parole eligibility, a parole review

hearing occurs five years after the initial parole release

hearing, except where the Parole Board members act to cause a

review at an earlier time"). Similarly, here, if the judge

finds that the juvenile has violated the conditions of probation

and determines to revoke probation, the judge may resentence the

juvenile on the remaining nonhomicide offenses subject to

22"We refer to the period between the parole board's denial

of parole and a prisoner's subsequent review as a 'setback' or

'set-back period.'" Roberio v. Massachusetts Parole Bd., 483

Mass. 429, 432 (2019). See G. L. c. 127, § 133A ("If [parole]

is not granted, the parole board shall, at least once in each

ensuing five year period, consider carefully and thoroughly the

merits of each such case on the question of releasing such

prisoner on parole").

24

periodic parole review on the same or a shorter timetable than

that applicable to a juvenile who committed murder, who was

paroled, and whose parole was revoked.

3. Conclusion. We affirm the order denying the juvenile's

second motion for relief from unlawful restraint.

So ordered.