BUDD, J. On April 2, 2014, the plaintiff, Richard Crowell, filed a complaint in the nature of certiorari in the Superior Court, alleging that, in denying his petition for parole, the Parole Board (board) had violated the Americans with Disabilities Act, 42
U.S.C. §§ 12101 et seq. (ADA), and cognate State provisions, art. 114 of the Amendments to the Massachusetts Constitution and G. L. c. 93, § 103. A judge of that court allowed the board's motion to dismiss and denied the plaintiff's motion for reconsideration. We reverse and remand for further development of the record. [Note 1] Further, we conclude that, contrary to the plaintiff's assertion, his commuted life sentence remains a "life sentence" within the meaning of 120 Code Mass. Regs. § 301.01(5) (1997).
Background. The limited record before us, presented in the form of exhibits to the plaintiff's complaint, includes the following facts, which are undisputed by the parties.
1. Prior parole proceedings. The plaintiff pleaded guilty to murder in the second degree in 1962 in connection with an armed robbery that resulted in a homicide. [Note 2] He was sentenced to life imprisonment with the possibility of parole pursuant to G. L. c. 265, § 2. [Note 3] In 1974 the plaintiff's life sentence was commuted to one that was from "[thirty-six] years to life." He was paroled in November, 1975. Between 1975 and 1990 the plaintiff was returned to custody on five occasions (1977, 1980, 1982, 1989, and 1990) for failing to adhere to his conditions of parole, including repeated problems with alcohol and assaultive behavior. In 1987 he sustained a traumatic brain injury (TBI), which caused deficiencies in his memory, speech, and cognition. He attributes the loss of his job while on parole as well as an exacerbation of his alcohol problems to TBI.
The plaintiff was denied parole following review hearings before the board in 1991, 1994, and 1997. In 2003, he was again paroled on the condition that he complete a long-term residential program and attend Alcoholics Anonymous meetings at least three times per week. Less than one month later, his parole was revoked for failure to complete the residential program. He has been incarcerated since that time.
2. 2012 parole hearing and decision. In August, 2012, the plaintiff had a review hearing before the board. During that hearing,
one of the board members noted that TBI had "caused cognitive functioning [and] emotional functioning deficits," resulting in uncooperative behavior that was "secondary to [the plaintiff's] brain injury." The board member stated that this was a chronic, life-long condition that "might get worse . . . [s]o [the plaintiff] would need to be in some sort of setting where [he] could be managed and cooperate with people forever." She also expressed concern about the fact that the programs the plaintiff's counsel had looked into were voluntary programs that would require his full cooperation.
Ultimately the board issued its decision denying the plaintiff parole, stating that the plaintiff "was unable to offer any concrete, viable release plan that could assure the [b]oard that he would be compliant on parole after his history of defiance and non-compliance" and that he "has not sought or achieved the rehabilitation necessary to live safely in the community." The board also stated, "Crowell was unable to address the concerns related to his combative attitude and . . . gave the clear impression that he feels entitled to parole . . . ." The board denied the plaintiff's request for reconsideration.
3. Certiorari action. On April 2, 2014, the plaintiff timely filed a complaint seeking certiorari review of the board's decision by way of G. L. c. 249, § 4, alleging that the board's denial was a violation of his rights under the ADA and cognate State provisions, and that the board's decision to grant him a review hearing only every five years (rather than annually) was unlawful. He sought immediate release or a hearing at which the board would be prohibited from considering his disability as a reason to prevent him from being paroled. The plaintiff further asked the court to direct the board to use its resources to find an appropriate placement for him in the community.
The judge allowed the board's motion to dismiss, concluding that the board had not discriminated against the plaintiff in its decision denying him parole because it considered many factors, only one of which was his disability related to the TBI. The plaintiff appealed and obtained a brief stay of the appeal to pursue an unsuccessful motion for reconsideration on the limited issue whether he is serving a life sentence or a sentence for a term of years. We transferred the case from the Appeals Court on our own motion.
Discussion. 1. The motion to dismiss. We review a judge's order granting a motion to dismiss de novo. Boston Med. Ctr.
Corp. v. Secretary of the Exec. Office of Health & Human Servs., 463 Mass. 447 , 450 (2012). The plaintiff asserts that the motion judge erroneously allowed the board's motion to dismiss because the board failed first to file the administrative record pursuant to a standing order of the Superior Court. Superior Court Standing Order 1-96(2) applies to actions in the nature of certiorari under G. L. c. 249, § 4, and requires the agency to file its administrative record within ninety days of service of the complaint. [Note 4] It also extends the deadline for certain motions, including those brought under Mass. R. Civ. P. 12 (b) and (e), 365 Mass. 754 (1974), to twenty days after service of the record. The board contends that it complied with both Superior Court Standing Order 1-96 and rule 12 (b) ("A motion making any of these defenses shall be made before pleading . . ."). Although the board was free to file a motion to dismiss, it was error for the judge to allow it as the plaintiff had stated a claim upon which relief could be granted. That is, he alleged in his complaint that the result of the parole board hearing (a quasi judicial administrative proceeding) was arbitrary or capricious, unsupported by substantial evidence, or otherwise an error of law. See Hoffer v. Board of Registration in Med., 461 Mass. 451 , 458 n.9 (2012) (discussing what plaintiff
must show to obtain certiorari review). [Note 5]
Given the plaintiff's allegations, the only appropriate way for the court to evaluate the claim is through a review of the administrative record upon a motion for judgment on the pleadings. See School Comm. of Hudson v. Board of Educ., 448 Mass. 565 , 575-576 (2007), citing St. Botolph Citizens Comm., Inc. v. Boston Redev. Auth., 429 Mass. 1 , 7 (1999) ("Certiorari is a limited procedure reserved for correction of substantial errors of law apparent on the record created before a judicial or quasi-judicial tribunal"). Requiring a defendant agency to file the administrative record as a matter of course is an implicit acknowledgement of that fact. [Note 6] See Firearms Records Bur. v. Simkin, 466 Mass. 168 , 180 (2013), citing Cambridge Hous. Auth. v. Civil Serv. Comm'n, 7 Mass. App. Ct. 586 , 587 (1979). For this reason, we vacate the dismissal and remand for further proceedings.
2. The disability claim. In his Superior Court complaint, the plaintiff asserted that the board's decision to deny his parole petition was unlawful to the extent that the decision relied on his disability and faulted him for failing to seek out an appropriate release plan. He claimed that the decision violated the ADA, [Note 7] as well as art. 114 [Note 8] and G. L. c. 93, § 103. [Note 9] Because we vacate the
dismissal on procedural grounds, we need not reach the merits of the plaintiff's disability claim. That being said, it is clear from the limited information we have -- i.e., a partial transcript and the board's written decision -- that the board's decision to deny the parole petition does not appear to have considered adequately the application of the ADA and our own relevant constitutional and statutory provisions. We therefore make the following observations.
The ADA and State provisions "prohibit the same conduct: disabled persons may not be 'excluded from participation in or be denied the benefits of' services, programs, or activities [of a public entity], and they may not 'be subjected to discrimination'" (citation omitted). Shedlock v. Department of Correction, 442 Mass. 844 , 854 (2004). The plaintiff alleges, and the board clearly assumed (both during the review hearing and in its decision denying his petition for parole), that the plaintiff suffers from a disability: cognitive and behavioral limitations resulting from TBI. The plaintiff also alleges that he has been denied the benefits of a State program, i.e., a fair hearing and parole review decision process, to which he was statutorily entitled. See 42 U.S.C. § 12131(1)(B) (2012) ("public entity" includes State agencies); Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 210 (1998) (ADA applies to prisoners); Thompson v. Davis, 295 F.3d 890, 896-897 (9th Cir. 2002), cert. denied, 538 U.S. 921 (2003) (ADA applies to parole proceedings, including substantive decision-making). [Note 10] Therefore, the only open question is whether the plaintiff was excluded from the program, or discriminated against
in the form of denial of parole, by reason of his disability. See Thompson, supra at 896, 898 n.4 (describing this inquiry as asking whether prisoner was "otherwise qualified").
The board's decision to grant parole is limited by statute; it may only do so where it finds, "after consideration of a risk and needs assessment, that there is a reasonable probability that, if the prisoner is released with appropriate conditions and community supervision, the prisoner will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society." G. L. c. 127, § 130. [Note 11] No prisoner is entitled to parole, Deal v. Commissioner of Correction, 475 Mass. 307 , 322 (2016), and we give the board's determination "considerable deference," Greenman v. Massachusetts Parole Bd., 405 Mass. 384 , 387 (1989).
However, this deference is not without limits. First, the board clearly may not categorically exclude any prisoner by reason of his or her disability. See Thompson, 295 F.3d at 898 n.4. Second, both the ADA and the parole statute, G. L. c. 127, § 130, require the board to take some measures to accommodate prisoners with disabilities. Where the board is aware that a mental disability may affect a prisoner's ability to prepare an appropriate release plan in advance of a parole hearing, the board should make reasonable modifications to its policy, for example, by providing an expert or other assistance to help the prisoner identify appropriate postrelease programming. See 28 C.F.R. § 35.130(b)(7) (2016); [Note 12] 28 C.F.R. § 35.130(b)(8) (2016). [Note 13] In accommodating prisoners with mental disabilities, the board should also consider whether
there are risk reduction programs designed to reduce recidivism in those who are mentally disabled. See G. L. c. 127, § 130.
These provisions do not require the board to make modifications that would "fundamentally alter" the nature of parole. 28 C.F.R. § 35.130(b)(7). See 28 C.F.R. § 35.139 (2016). To the contrary, those who would pose a danger to society even with risk reduction programs should not be released on parole. G. L. c. 127, § 130. In addition, the board's important role in protecting society from the early release of dangerous persons means that the board must be able to consider whether the symptoms of a prisoner's disability mean that he or she has a heightened propensity to commit crime while released on parole. See Thompson, 295 F.3d at 898 n.4.
The interaction of these requirements means that once the board became aware that the plaintiff's disability could potentially affect his ability to qualify for parole, it had the responsibility to determine whether reasonable modifications could enable the plaintiff to qualify, without changing the fundamental nature of parole. [Note 14] Here, the board indicated its awareness both of the plaintiff's disability and of how symptoms stemming from that disability could affect his behavior both in the parole hearing and on parole. In addition, while one board member discussed the possibility that the plaintiff would need to be in a "very structured setting" while on parole, there is no indication in the limited record before us whether the board actually considered any such modification and whether it would make him a more qualified
candidate for parole. Further, the board negatively considered the plaintiff's attitude during the parole hearing and his own failure to identify what the board considered to be appropriate parole programs, without considering whether these behaviors were the result of his TBI.
In short, while the judge correctly noted that in its decision, the board had considered a broad set of factors, including the plaintiff's behavior before his TBI, the record before us shows no consideration of how the plaintiff's limitations affect his parole eligibility, whether these limitations could be mitigated with reasonable modifications, [Note 15] and whether other factors would nevertheless disqualify him from parole. [Note 16] More importantly, it is impossible to determine the weight the board gave to the disability and associated limitations relative to other factors in its analysis. Once the board has submitted the administrative record, upon a motion for judgment on the pleadings, the motion judge will have a better basis for considering the plaintiff's claims. [Note 17]
3. Frequency of parole review. General Laws c. 127, § 133A, governs parole eligibility for "[e]very prisoner who is serving a sentence for life," with limited exceptions. It provides for an initial hearing fifteen years into a life term, and rehearings every five years if parole is not granted. Id. 120 Code Mass. Regs. § 301.01(5). In contrast, with limited exceptions not relevant here, all other prisoners denied parole are entitled to a rehearing on an annual basis. 120 Code Mass. Regs. § 301.01(2) (1997).
The plaintiff argues that the commutation of his original sentence from life with the possibility of parole to thirty-six years to life reduced his sentence to an indeterminate one, such that it is no longer governed by § 133A, and that he is entitled to review on an annual basis. [Note 18] We disagree.
The case to which the defendant cites undermines his argument, as the court held that the nature of a prisoner's sentence depends on the maximum term, which sets "the maximum amount of time that the prisoner will serve in prison if he . . . is not granted parole," whereas the minimum term "serves as a base for determining his parole eligibility date." Connery v. Commissioner of Correction, 33 Mass. App. Ct. 253 , 254 (1992), S.C., 414 Mass. 1009 , 1011 (1993), citing Commonwealth v. Hogan, 17 Mass. App. Ct. 186 , 189 (1983), and Commonwealth v. Haley, 23 Mass. App. Ct. 10 , 18 (1986). Because judges sentencing on convictions for murder in the second degree now must fix a minimum term as a parole eligibility date, G. L. c. 279, § 24, if we adopted the defendant's view it would essentially mean that no sentences other than a life sentence without the possibility of parole would be a "life sentence." This would render § 133A meaningless. See Boston Police Patrolmen's Ass'n v. Boston, 435 Mass. 718 , 721 (2002), quoting Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136 , 140 (2001) ("We interpret statutes so as to avoid rendering any part of the legislation meaningless"). Instead, the board has determined that § 133A and the associated regulations govern parole hearings for all "individuals serving a sentence that contains life as the maximum term of the sentence." 120 Code Mass. Regs. § 100.00 (2001). Therefore, the plaintiff's sentence remains a "life sentence,"
and his parole is governed by § 133A.
Conclusion. We reverse the dismissal of the complaint and remand for further proceedings consistent with this opinion.
BOSTON – A former employee at First Bristol Corporation has pleaded guilty and been sentenced in connection with stealing more than $2 million from the commercial real estate company, Attorney General Maura Healey announced today.
Suzanne Coriaty, age 59, of Somerset, pleaded guilty last week to the charges of Larceny Over $250 and False Entries in Corporate Books (two counts each) in Bristol Superior Court.
After the plea was entered, Judge Raffi Yessayan sentenced Coriaty to 5 years of probation after hearing differing recommendations from the parties.
The AG’s Office began an investigation in November 2015 after a referral from the Bristol District Attorney’s Office. First Bristol Corporation (First Bristol) is a privately held real estate development and management company based in Fall River. In her position as controller, Coriaty was responsible for supervising the company’s bookkeeping staff, and had authority to issue checks from all of First Bristol’s checking accounts. Prior to her termination in November 2015, Coriaty had worked for First Bristol for almost 30 years.
Authorities found that between 2007 and 2015, Coriaty used two different schemes to steal funds from the company. Through the first, she requested checks payable to Citibank by falsely stating that they would be used to pay off the president’s credit card. Coriaty then used these unauthorized First Bristol checks to pay off her own personal credit cards. She paid off her credit card bill with checks to Citibank that were generally between $15,000 to $30,000.
Through the second scheme, Coriaty made out checks to herself drawn on First Bristol’s payroll account. She made entries in the corporate books to make it appear that these checks were payable to other employees as bonuses, commissions, or reimbursement payments. In total, Coriaty stole $2,371,008.82.
This case was handled by Assistant Attorneys General Gabriel Thornton and Sara Yoffe of AG Healey’s White Collar and Public Integrity Division. This case was investigated by Stephen Bethoney of AG Healey’s Financial Investigations Division and Massachusetts State Police assigned to the AG’s Office and to the Bristol District Attorney’s Office.