AYALA v. MASSACHUSETTS PAROLE BOARD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Julio Ayala appeals from a judgment of the Superior Court affirming a decision of the parole board (board) denying his petition for parole.³ He claims that the decision was arbitrary and capricious because the board failed to consider that due to his underlying medical condition (asthma) he is at high risk for serious complications or death from COVID-19. We affirm.

Background. In October 2000, Ayala pleaded guilty to four counts of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B, and four counts of rape of child with force in violation of G. L. c. 265, § 22A. A judge of the Superior Court sentenced him to concurrent terms of five years to five years and one day in State prison on the four counts of indecent assault and battery and to concurrent terms of ten years of straight probation on the four counts of rape of a child with force, to run from and after his release from incarceration. Ayala completed his term of incarceration and was released on probation. He failed to register as a sex offender and he violated the conditions of his probation. Consequently, in 2011, he was sentenced to serve four to twenty years in State prison.

Ayala requested parole and appeared before the board on April 3, 2020. One of the grounds ⁴ on which he sought release was his increased risk of serious illness or death from COVID-19 because of his asthma. The board denied parole stating that

“Subject denies crimes and refused to transfer to MTC to complete SOTP (Sex Offender Treatment Program). He has never completed all phases of SOTP in past. Did not present as forthright or willing to take responsibility. Serving sentence as a result of probation violation. Also incurred federal conviction for Failure to Register while in community. Does not meet legal standard.”

Ayala then sought certiorari review pursuant to G. L. c. 249, § 4. He claimed that the board abused its discretion by failing to consider the increased risks to his health as a result of COVID-19. The parties filed cross motions for judgment on the pleadings. The judge affirmed the board's decision, concluding that the board was not required to consider the risk posed by COVID-19.⁵

Discussion. “We review de novo the allowance of a motion for judgment on the pleadings.” Perullo v. Advisory Comm. on Personnel Standards, 476 Mass. 829, 834 (2017).

“[T]he standard of review for an action in the nature of certiorari depends on the nature of the action sought to be reviewed” (quotation and citation omitted). Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12, 31 (2015). “As the granting of parole is a discretionary function of the executive branch, generally the judiciary's role is limited to reviewing the constitutionality of the board's decision and proceedings.” Deal v. Massachusetts Parole Bd., 484 Mass. 457, 460 (2020). “The board is afforded significant deference with regard to its parole decisions.” Id. To the extent that parole decisions are subject to review by certiorari, we review to determine whether the board abused its discretion by acting arbitrarily and capriciously. See Diatchenko, supra.

Ayala argues that the board erred by failing to take into account his medical condition and the risk to his health from COVID-19 in its decision denying him parole. We disagree. Under G. L. c. 127, § 130, the board may grant parole when

“after consideration of a risk and needs assessment, ․ 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.”

See Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court (No. 1), 484 Mass. 431, 452 (2020) (CPCS), quoting 120 Code Mass. Regs. § 300.04 (2017) (“The parole board ‘shall only grant a parole permit if they are of the opinion that there is a reasonable probability that ․ the offender will live and remain at liberty without violating the law and that release is not incompatible with the welfare of society’ ”). It is true, as Ayala argues, that the Supreme Judicial Court has said “it is ․ appropriate for the parole board to consider the increased risk to the inmate, to fellow inmates, and to the general public of continuing custody in a prison where he or she is particularly vulnerable to an outbreak of COVID-19 given the close quarters and difficulties of social distancing in a prison.” Foster v. Commissioner of Correction (No. 1), 484 Mass. 698, 738 (2020) (Gants, C.J., concurring). Nevertheless, as the judge here observed in her decision, because the granting of parole is a discretionary function of the executive branch, “the court[s] cannot mandate that the Board consider COVID-19 factors in making a decision regarding parole without interfering with that executive function.” See CPCS, supra at 451, and cases cited therein. See also Foster (No. 1), supra at 733 (“The specific measures the defendants might choose to reduce the number of incarcerated individuals in DOC custody are ․ not ordinarily for a court to decide [barring a constitutional violation]”).

In sum, the board cannot be faulted here for not considering the health risks to Ayala from COVID-19. Moreover, there were sound reasons for denying Ayala's request for parole. Although the board's analysis is brief, its decision noted Ayala's failure to complete the SOTP, his unwillingness to take responsibility for his offenses, and his failure to register as a sex offender. These facts support the conclusion that Ayala did not present a “reasonable probability” that he could be released into society without recidivating or that his release would not be “incompatible with the welfare of society.” G. L. c. 127, § 130. Accordingly we conclude that the board did not act arbitrarily and capriciously.

Judgment affirmed.

FOOTNOTES

3.   Although Ayala's notice of appeal references the portion of the judge's order denying his motion for judgment on the pleadings, the parties have briefed this as an appeal from the judgment on the pleadings entered pursuant to that same order. In the interest of judicial economy, in an exercise of our discretion, and in light of the issues presented in this expedited appeal, we address the merits.

4.   The other grounds Ayala advanced in support of his request for parole are not before us.

5.   Ayala also asserted that the board's decision violates his rights under the Eighth Amendment to the United States Constitution. The judge rejected this argument, however, Ayala has not appealed this aspect of the judge's decision.