James Riva v. Massachusetts Parole Board.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-311

JAMES RIVA

vs.

MASSACHUSETTS PAROLE BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, James Riva, is serving a life sentence for

the 1980 murder of his grandmother. He appeals from the entry

of judgment on the pleadings in favor of the Massachusetts

Parole Board (board), which denied his most recent parole

request in 2020. Because we are not persuaded that the board's

decision to deny him parole was arbitrary, capricious, or

clearly erroneous, we affirm.

Background. We briefly summarize the facts underpinning

the plaintiff's convictions as found by the board, reserving

some for later discussion. See Deal v. Massachusetts Parole

Bd., 484 Mass. 457, 458 (2020). On April 10, 1980, at age

twenty-two, the plaintiff drove to his grandmother's house.

After a brief exchange, the plaintiff obtained a gun from where

he had stored it in the basement, shot his grandmother multiple
times, and lit her body on fire before leaving the house. On

October 31, 1981, the plaintiff was convicted of murder in the

second degree and arson. He was sentenced to life with the

possibility of parole for the murder charge.

Discussion. 1. Standard of review. Pursuant to G. L.

c. 127, § 130, the board may grant parole only 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." 1 "The board is afforded significant deference with

regard to its parole decisions." Deal, 484 Mass. at 460. On

certiorari review under G. L. c. 249, § 4, the court reviews the

1 In determining whether a prisoner should be granted parole the
board must consider "whether, during the period of
incarceration, the prisoner has participated in available work
opportunities and education or treatment programs and
demonstrated good behavior. The board shall also consider
whether risk reduction programs . . . would minimize the
probability of the prisoner re-offending once released." G. L.
c. 127, § 130. Where "available and relevant," the board may
also consider information including "official reports of the
nature and circumstances of the offense" and "statements by any
victim of the offense for which the offender is imprisoned about
the financial, social, psychological, and emotional harm done to
or loss suffered by such victim." 120 Code Mass. Regs. § 300.05
(2017). The board's obligation is to consider all the evidence
and make its own assessment as to its weight and credibility, an
assessment we may not reconsider. See Greenman v. Massachusetts
Parole Bd., 405 Mass. 384, 387 (1989).

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board's parole decision only to determine whether it is

arbitrary or capricious, unsupported by substantial evidence, or

otherwise an error of law. See Crowell v. Massachusetts Parole

Bd., 477 Mass. 106, 109 (2017); Doucette v. Massachusetts Parole

Bd., 86 Mass. App. Ct. 531, 541 (2014). Cf. Deal, supra at 461.

"A decision is arbitrary or capricious . . . where it 'lacks any

rational explanation that reasonable persons might support.'"

Frawley v. Police Comm'r of Cambridge, 473 Mass. 716, 729

(2016), quoting Doe v. Superintendent of Schs. of Stoughton, 437

Mass. 1, 6 (2002). Because the plaintiff's action in the

Superior Court was resolved through the entry of judgment on the

pleadings, our review of the Superior Court's ruling is de novo.

See C.M. v. Commissioner of the Dep't of Children & Families,

487 Mass. 639, 646 (2021).

2. Antisocial behavior evidence. In support of his bid

for parole, the plaintiff provided the expert witness testimony

of Dr. Elizabeth Albrinck, a forensic psychologist, who

concluded that the plaintiff exhibited a low "Antisocial

Pattern." In its decision the board implicitly rejected this

opinion when it concluded that the plaintiff "continues to

engage in antisocial behavior" based on his posts on social

media, recent bouts of stress which he reported caused him

paranoia, and intimidating behavior toward family members. The

plaintiff argues that this element of the board's decision was

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erroneous and lacked the support of expert testimony the board

should have offered. We disagree.

First, it is the board's function as factfinder to assess

the weight and credibility of the evidence presented at the

parole hearing. In making its decision, the board was not

required to accept the expert's opinion, nor was it prohibited

from relying on evidence that supported a conclusion different

from that reached by the plaintiff's expert, even in the absence

of countervailing expert testimony. 2 See Deal, 484 Mass. at 463-

464.

Second, the board's conclusion that the plaintiff was not

sufficiently rehabilitated was supported by substantial

evidence. See Crowell, 477 Mass. at 109. Specifically, the

board was free make its own assessment of the tone and substance

of his writings, some of which the board concluded were

threatening, and at least one of which he conceded would cause

"anyone [to] be afraid"; his admission to his own ongoing

paranoia; and his behavior toward family members, which, the

board implicitly concluded, taken together countered and

undercut the plaintiff's expert evidence. See Deal, 484 Mass.

2 General Laws c. 127, § 130, explicitly requires that the board
need provide no more than "a summary statement of the case
indicating the reasons for the decision." We note, however, the
desirability of the board's "articulat[ing] the reasons and
evidence overcoming the contrary expert opinion." Deal, 484
Mass. at 464.

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at 464 (board's conclusion that plaintiff's release not

"compatible with the welfare of society" necessarily implicitly

rejects plaintiff's expert testimony to the contrary). We

discern no error in the judge's determination that the parole

board did not act arbitrarily or capriciously in concluding that

the plaintiff displayed antisocial tendencies among other

factors rendering him unsuitable for parole.

Additionally, it is apparent from the board's decision that

the board members considered the other relevant statutory and

regulatory factors before concluding that the plaintiff is not

yet rehabilitated and thus not suitable for parole. The board

acknowledged the opportunities the plaintiff has partaken in,

including participating in therapy groups and obtaining his

bachelor's degree, but noted that the plaintiff had engaged in

only "limited programming to address his multitude of causative

factors." In its analysis, the board considered the plaintiff's

recent bouts of stress-induced paranoia -- a fact the plaintiff

himself acknowledged -- and concluded that he would need to

engage in more treatment to cope with the stress of living

outside prison. It considered the same in determining the

unlikelihood that risk reduction programming would minimize the

probability of recidivism in the plaintiff's case, given the

centrality of paranoia in his past actions, the unpredictable

stressors that emerge in the community, and the voluntariness of

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the programming available in the community. See 120 Code Mass.

Regs. § 300.05(1)(e) & (g) (2017). See also Greenman v.

Massachusetts Parole Bd., 405 Mass. 384, 387 (1989).

3. Childhood abuse allegations. The plaintiff argues that

the board denied his parole in retaliation for his reporting of

childhood abuse by his mother, thus violating the First

Amendment. He further asserts that his abuse allegations are

supported by medical records including a 1974 record from McLean

Hospital (McLean record) which he argues the board failed

properly to consider. 3

At the outset, we note that the McLean record is not a part

of the administrative record. If the plaintiff wanted the board

to consider it, he was obligated to present the board with a

copy, rather than merely mentioning it at the parole hearing.

See Bielawski v. Personnel Adm'r of the Div. of Personnel

Admin., 422 Mass. 459, 464 (1996). The McLean record

notwithstanding, the board did hear evidence about the

plaintiff's past abuse. The plaintiff, however, has not shown

any basis to conclude that the board denied his parole in

3 The record in question documents accusations of ongoing abuse
made by the plaintiff and his brother against their mother, as
well as the mother's denial of the abuse and the father's
admission to having beaten the boys with a belt in an effort to
further the mother's efforts at disciplining the children.

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retaliation for his speaking about his past abuse and there is

nothing in the board's decision that suggests it did so.

4. Bias. The plaintiff names three board members whom he

claims were biased against him: Tonomey Coleman, Sheila Dupre,

and Gloriann Moroney. 4 As to Coleman and Dupre, the plaintiff

argued that they questioned him in a mocking tone during his

hearing. The judge, who reviewed the videorecorded hearing,

determined that none of the board members spoke to the plaintiff

in an inappropriate tone. Upon our own review of the same

footage, we agree. See Commonwealth v. Tremblay, 480 Mass. 645,

654-655 (2018).

The plaintiff's remaining arguments about Dupre do not

point to bias but rather seem to be claims that she

misunderstood an essay he published. To the extent we consider

this argument, we note that in conducting the required "risk and

needs assessment" on which its parole decision turned, the board

was permitted to consider a broad range of evidence. See 120

Code Mass. Regs. § 300.05(1) (2017). We are not persuaded that

the board or any of its members acted arbitrarily or

capriciously in considering the plaintiff's writings or in

4 The plaintiff did not raise this objection before the board,
nor did he seek the recusal of any board members from his
hearing. A court may decline to consider allegations of bias
where they are not raised in a timely manner. See Commonwealth
v. Rivera, 473 Mass. 1003, 1006 (2015).

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concluding that certain examples of his writings were suggestive

of ongoing paranoia, or that the conclusion itself was

indicative of any board member's bias against the plaintiff.

As to Moroney, to the extent that the plaintiff's arguments

about her prior employment with the Attorney General's office

are not waived, see Doucette, 86 Mass. App. Ct. at 534-535, we

discern no support for his claim that she was biased against him

as a result. Although the opinion in Committee for Pub. Counsel

Servs. v. Chief Justice of the Trial Court, 484 Mass. 431 (2020)

(CPCS), mysteriously lists Moroney as appearing, this is not

correct. In fact, the board was represented in that case by the

Attorney General, and Moroney neither argued nor filed any

documents in that case. In any event, the plaintiff has failed

to show how any involvement by Moroney in CPCS could have

impacted him in this case. He also argues that Moroney's

involvement as Assistant Attorney General in one of his prior

parole appeals renders her biased. Contrary to the plaintiff's

assertion, Moroney agreed with the prior Superior Court judge's

assertions that the plaintiff was not entitled to or surprised

by the family member letters and that any error in one paragraph

of the board's decision would not be reversible, and not with

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any "fantastic weird postulate." There is similarly no evidence

to show bias resulting from Moroney's involvement in that case.

Judgment affirmed.

By the Court (Ditkoff, Hand &
D'Angelo, JJ. 5),

Clerk

Entered: August 1, 2023.

5 The panelists are listed in order of seniority.

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