T?e Commonweaft? of?l/lassac?usetts
Executive O?i'ce ofdjulifz'c Safety and Security

   

PAROLE BOARD
12 Mercer Road
Watic?, Massac/iusetts 01 7 60
Charles D. Baker Gloriann Moroney
SW qelep?one (508) 650?4500 Gigi"
Mitzi: Tammie (508) 650?4599 $31; 3:33,.
Thomas A. Turco 
Secrelarjr
AMENDED DECISION
IN THE MATTER OF
GREGORY DIATCHENKO
W38579
TYPE OF HEARING: Review Hearing Reconsideration
DATE OF HEARING: July 23, 2019
DATE OF DECISION: June 12, 2020

PARTICIPATING BOARD MEMBERS: Gloriann Moroney, Tonomey Coleman, Sheila Dupre,
Tina Hurley, Karen McCarthy, Dr. Charlene Bonner, Colette Santa

DECISION OF THE BOARD: After careful reconsideration of all relevant facts, including the
nature of the underlying offense, the age of the inmate at the time of offense, criminal record,
institutional record, the inmates testimony at the hearing, the views of the public as expressed
at the hearing or in written submissions, and after review of Mr. Diatchenko?s petition for
reconsideration, the Board concludes that the inmate is a suitable candidate for parole.1 Parole
is granted to a long term residential treatment program subject to special conditions.

I. STATEMENT OF THE CASE

On November 24, 1981, in Suffolk Superior Court, a jury found 17?year-old Gregory
Diatchenko guilty of ?rst~degree murder on the theories of deliberate premeditation, extreme
atrocity and cruelty, and felony murder (armed robbery) in the death of 55-year-old Thomas
Wharf. He was sentenced to serve the mandatory term of life in prison without the possibility of
parole. The Supreme Judicial Court affirmed the conviction on direct appeal.2

Thirty years later, the United States Supreme Court decided M?/er v. Alabama, 132 S. Ct.
2455 (2012), in which it held that the mandatory imposition of life without the possibility of parole
on individuals, who were under the age of 18 at the time of the murder, violated the Eighth

 

After a reconsideration request, two Board Members voted to deny parole with a review in two years.
2 Commonwealth v. Diatchenko, 387 Mass. 718 (1982).
-1-

Amendment prohibition on cruel and unusual punishment. Following that decision, Mr.
Diatchenko ?led a G.L. c. 211, 3, petition with the Single Justice of the Supreme Judicial Court
challenging the constitutionality of Massachusetts law requiring the imposition of life without the
possibility of parole on juveniles, who were convicted of ?rst-degree murder. The matter was
referred to the full bench of the Supreme Judicial Court and, on December 24, 2013, the Court
issued a decision in Diatchenko v. District Attorney for the Su??o/k District Others, 466 Mass.
655 (2013), in which it determined that the statutory provisions mandating life without the
possibility of parole were invalid as applied to Mr. Diatchenko and others, who were juveniles at
the time that they committed murder. The Court ordered that affected inmates receive a parole
hearing after serving 15 years. Accordingly, Mr. Diatchenko became eligible for parole. Mr.
Diatchenko was granted parole after his initial hearing in 2014, but his parole was revoked in
2018.

On the evening of May 9, 1981, at approximately 9:45 a Boston police of?cer
received a radio call directing him to an alley at the rear of 860 Beacon Street, near Kenmore
Square. When he arrived, he saw Thomas Wharf, slumped over and unconscious, bleeding in
the driver's seat of a red Cadillac automobile. Mr. Wharf was pronounced dead. A later autopsy
revealed nine stab wounds, including one that penetrated the left lung and another that pierced
the heart. The right rear pocket of his pants had been ripped open. Extensive evidence indicated
that Mr. Diatchenko committed the murder, as his ?ngerprints were found in, and on, the victim's
car. A witness testi?ed that she was seated at a table in her apartment, at 860 Beacon Street,
on the night of the stabbing. The table was located next to an open window, overlooking the
alley where the stabbing occurred. At approximately 9:30 pm, she heard a loud voice from the
alley yell out a few times, ?Give me your money, you fm." She telephoned the police and
reported what she assumed was a robbery. While on the telephone, she heard a car horn sound
continuously for approximately ?ve seconds. She then saw someone, wearing a brown leather
jacket, run away from the building.

On the same night, at approximately 10:15 pm, another witness was seated at a shelter
at the Brookline Village streetcar station. He saw a light?haired young man, carrying a brown
leather jacket, walking along the trolley tracks from the direction of the scene of the murder. The
young man came into the shelter, sat down beside the man, and asked him for a match. The
witness, who noticed that the young man's hand was covered with blood, asked whether he had
cut himself. The young man replied that he had been in a ?ght and had stabbed someone
approximately 20-times. The witness and the young man spoke for about 15 minutes, and the
young man told the witness that his name was Greg. On the following day, May 10, the witness
read an account of the murder in a newspaper. On May 11, the witness telephoned Boston police
and spoke of his meeting with the young man on the night of the stabbing. The witness later
identi?ed a photograph of Mr. Diatchenko from an array of 11 photographs.

An arrest warrant was issued for Mr. Diatchenko. A search of Mr. Diatchenko?s apartment
was conducted during the arrest. A brown leather jacket and a knife were found.

II. PAROLE HEARING ON JULY 23.r 2019

Gregory Diatchenko, now 56~years?old, appeared before the Parole Board on July 23,
2019, for a review hearing. He was represented by Attorneys Lisa Newman?Polk and Benjamin
Keehn. Mr. Diatchenko was granted parole after his initial hearing in 2014. After violation of his
parole conditions, his parole was revoked in 2018. In his opening statement to the Board, Mr.

Diatchenko stated that he was ?sorry and embarrassed" to be before the Board again. His parole
release was ?a second chance at life," which he had taken from Mr. Wharf. By not succeeding
on parole, Mr. Diatchenko ?dishonored? Mr. Wharf?s memory. Mr. Diatchenko and the Board
discussed his life before the murder, which was marked by a contentious relationship with his
mother and alcohol abuse. Mr. Diatchenko told the Board that his crime was motivated by a
desire to rob Mr. Wharf, although he had never robbed anyone before. He explained that ?an
opportunity arose,? and he took advantage of it. Mr. Diatchenko had consumed alcohol on the
night of the murder.

At his 2014 hearing, Mr. Diatchenko presented the Board with a detailed and thoughtful
parole plan. The Board noted that, central to the plan, was Mr. Diatchenko?s dedication to his
Zen Buddhist faith. Mr. Diatchenko said that although he still practices, he ?slacked off" in times
of stress during his release. He also chose not to pursue his planned career in plumbing. Mr.
Diatchenko explained that he began to have concerns about his home plan, while in pre?release,
as he and his mother argued and his stepfather was terminally ill. He acknowledged that although
he shared his concerns with other family members, he did not inform the Board because ?the ball
was already in motion." He now believes that he should have pursued alternative home plans
with parole. Mr. Diatchenko explained that he was not concerned about relapse, at the time,
because he had been away from alcohol for so many years. He thought relapse was ?impossible."

The Board noted that Mr. Diatchenko had been incident?free for the ?rst two and a half
years on parole supervision. He maintained employment in property management and engaged
in counseling and medical treatment for a number of issues. Mr. Diatchenko told the Board that
he enjoyed positive, respectful relationships with each of his parole of?cers. He explained that
he engaged heavily in the community in order to share his experiences as a juvenile lifer. Despite
the positive behavior, Board Members noted signi?cant missteps made by Mr. Diatchenko during
his parole supervision, largely grounded in dishonesty with his support network. Mr. Diatchenko
admitted that he did not disclose romantic relationships to his parole of?cer, despite knowing that
he had to do so. He was afraid he would lose the relationships?knew in his
heart and mind? that his partners did not have criminal records. Mr. Diatchenko also admitted to
using marijuana on two occasions with a group of friends, but agreed that there was ?no
justi?cation? for its use. When the Board asked whether he had disclosed his drug use before he
tested positive on a routine drug test, Mr. Diatchenko replied that he had not, as he believed he
could pass the test.

The Board discussed Mr. Diatchenko?s presence at a protest, at MCI?Norfolk, in May 2018.
Mr. Diatchenko acknowledged that he was aware of his requirement, as a parolee, to inform his
parole of?cer if he went to a correctional institution. Mr. Diatchenko claimed that he did not do
so on this occasion, as he was told by others he did not have to. Further, he believed he only
had to tell his parole of?cer if he intended to visit an inmate inside a correctional institution. Mr.
Diatchenko agreed that, ?looking back,? his attendance was ?the wrong decision for [him]?
because he was on parole. Mr. Diatchenko understands that he, as well as the community, were
better served when he was engaged in educational work or focused on his successful transition
back to society.

Mr. Diatchenko told the Board that he began drinking alcohol again in December 2017,
but did not share this information with his parole of?cer. He was depressed about a back injury
that prevented him from working, so he decided to buy a six?pack of beer. As time went on, he

purchased hard liquor and continued to drink because ?he felt like it." When the Board questioned
him as to whether his mother, with whom he lived, knew about his alcohol use, Mr. Diatchenko
stated that she did not. He repeatedly lied to her when she confronted him about her suspicion
of his alcohol use. Mr. Diatchenko explained that he suffered from the tragic loss of his cousin in
February 2018, which worsened his alcohol use. It was not until April 2018, when he posted a
suicidal message on Facebook, that a friend tried to intervene in his downward spiral. Mr.
Diatchenko said that this friend, and his attorney, met with him to share their concerns about his
alcohol use. When questioned as to why he did not share his alcohol use, suicidal ideation, or
feelings of depression with his parole of?cer, Mr. Diatchenko responded that he was afraid he
would be returned to custody. Instead of entering a rehabilitation facility, he attempted to pursue
other remedies, so that his parole of?cer would not be alerted by a change in address.

In May 2018, Mr. Diatchenko openly consumed copious amounts of alcohol at a memorial
service for his cousin. When his mother confronted him, Mr. Diatchenko said that he was
?embarrassed" and told his mother to ?mind her own business." The next morning, he was visited
by his parole officer. Mr. Diatchenko admitted that he could ?smell the alcohol emanating" off
his own body, as he blew a .130 on a breathalyzer. The Board noted that Mr. Diatchenko
attempted to kill himself during transport to MCI-Cedar Junction, by wrapping a seatbelt around
his neck. Mr. Diatchenko acknowledged that parole of?cers cut the seatbelt to save his life, and
that the attempt led to his placement in the HSU. The 10 days he spent in the HSU were
?torturous" and contributed to him having a ?mental breakdown." During this time, Mr.
Diatchenko engaged in a verbal altercation with a correctional of?cer. Although he acknowledged
telling a correctional of?cer that he was going to ?tell his friends on the outside" about the of?cer,
Mr. Diatchenko claimed that his intent was for his friends to post his negative treatment on social
media. The Board confronted Mr. Diatchenko with the fact that both a disciplinary report and a
criminal case arose out of this incident, which stated that he had threatened the of?cer with
physical harm. Mr. Diatchenko claimed to have had ?no recollection" of making a physical threat,
but rather, chose to take an Alford plea on the criminal case, so he could put the incident behind
him.

The Board informed Mr. Diatchenko of their signi?cant concerns regarding his level of
trust, given his lack of openness and honesty with parole staff. Although Board Members
acknowledged the many challenges Mr. Diatchenko faced during his release, they noted the
numerous poor decisions he made in response, as well as the fact that he did not seek help from
his large support network. The Board also informed Mr. Diatchenko of their concern that the
murder of Mr. Wharf did not cross his mind, when he resumed abusing alcohol. Mr. Diatchenko
responded that he now understands the need to ask for help in order to ensure a successful
transition into the community. Since his return to custody, Mr. Diatchenko has participated in the
Correctional Recovery Academy and Graduate Maintenance Program. He also serves as a mentor
in the Graduate Support Program and attends AA meetings and counseling. If granted parole,
Mr. Diatchenko seeks release to a long term residential program to address substance abuse,
before moving in with friends in Jamaica Plain. He told the Board that he would continue to
attend counseling, faith practice, and AA in order to aid in his transition.

Mr. Diatchenko?s stepmother, neighbor, reverend, and two friends testi?ed in support of
parole. Suffolk County Assistant District Attorney Paul Linn testi?ed and submitted a letter in
opposition to parole. Boston Police Commissioner William Gross submitted a letter in opposition
to parole. The Board considered additional letters in support of parole.

 DECISION

Parole is granted to a long~term residential treatment program After review of
Counsel's petition for reconsideration of the [Board's May 12, 2020] decision denying parole, it is
in the opinion of the Board that re?incarceration, in light of the pandemic, has served
its purpose. Since his return to custody in May of 2018 as a parole violator, he participated in
the Correctional Recovery Academy for 14 months. After his successful completion of
the program he served as a graduate support peer. It appears that he is committed to
maintaining his sobriety evidenced by his request to continue to engage in intensive treatment at
a LTRP. In addition, he appears to have gained insight and understands the seriousness of his
missteps on parole to include his lack of candor.

The applicable standard used by the Board to assess a candidate for parole is: ?Parole
Board Members shall only grant a parole permit if they are of theopinion that there is a reasonable
probability that, if such offender is released, the offender will live and remain at liberty without
violating the law and that release is not incompatible with the Welfare of society.? 120 C.M.R.
300.04. In the context of an offender convicted of ?rst or second degree murder, who was a
juvenile at the time the offense was committed, the Board takes into consideration the attributes
of youth that distinguish juvenile homicide offenders from similarly situated adult offenders.
Consideration of these factors ensures that the parole candidate, who was a juvenile at the time
they committed murder, has ?a real chance to demonstrate maturity and rehabilitation."
Diatchenko v. District Attorney for the So?a/k District, 471 Mass. 12, 30 (2015); See also
Commonwealth v. Okoro, 471 Mass. 51 (2015).

The factors considered by the Board in Mr. Diatchenko?s case include the offender?s ?lack
of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity,
and heedless risk?taking; vulnerability to negative in?uences and outside pressures, including
from their family and peers; limited control over their own environment; lack of the ability to
extricate themselves from horri?c, crime?producing settings; and unique capacity to change as
they grow older." Id. The Board also recognizes the petitioner's right to be represented by
counsel during his appearance before the Board. Idat20?24. In forming this opinion, the Board
has taken into consideration Mr. Diatchenko?s institutional behavior, as well as his participation in
available work, educational, and treatment programs during the period of his incarceration. The
Board has also considered a risk and needs assessment, and whether risk reduction programs
could effectively minimize Mr. Diatchenko?s risk of recidivism. After applying this appropriately
high standard to the circumstances of Mr. Diatchenko?s case, the Board is of the opinion that
Gregory Diatchenko is a suitable candidate for parole at this time.

SPECIAL CONDITIONS: Waive work for two weeks; Must be home between 10 pm. and 6
ELMO?electronic monitoring; Supervise for drugs, testing in accordance with agency policy;
Supervise for alcohol abstinence, testing in accordance with agency policy; Polygraph testing at
parole of?cer?s discretion; Report to assigned MA parole of?ce on day of release; No contact with
victim(s) family; Must have mental health evaluation and adhere to treatment plan; Must
complete at least 3 times per week; Mandatory sponsor.

 
 
 
  

I certr?/ that this is the decrsfon and reasons of the Massachusetts Paro/e Board regarding the
- referenced ring. Pursuant to at. c. 127, 130, I further ceitr?/ that all voting Board Members

 

?amela Murphy, General Counsel Date