Commonwealth v. Pacheco, SJC-12212

• Decision Date: 30 May 2017
• Docket Number: SJC-12212
• Citation: 477 Mass. 206,74 N.E.3d 1260
• Parties: COMMONWEALTH v. Andres PACHECO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

477 Mass. 206

74 N.E.3d 1260

COMMONWEALTH

v.Andres PACHECO.

SJC-12212

Supreme Judicial Court of Massachusetts, Middlesex..

Argued February 14, 2017.

Decided May 30, 2017.

Rebecca Kiley for the defendant.

Michael Klunder, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

GAZIANO, J.

At issue in this case is whether a consecutive sentence of eight years of probation, imposed in 2015 by a judge who was not the plea judge, violated the protections against double jeopardy, where the defendant originally had been sentenced in May, 2005, to an eight-year term of probation, concurrent with his ten-year prison sentence. In June, 2008, after he had served approximately three and one-half years of incarceration, the defendant filed, pro se, a motion to vacate the imposition of community parole supervision for life (CPSL), in light of this court's decision in Commonwealth v. Pagan , 445 Mass. 161, 162, 834 N.E.2d 240 (2005).

At a hearing on that motion in July, 2008, where the defendant was not represented by counsel, and had not waived his right to representation, the plea judge allowed the motion to vacate, and then, at the Commonwealth's request, imposed several additional conditions on the defendant's terms of probation, while ordering that "[t]he original sentence on [May 26, 2005,] stands except the lifetime community parole was vacated." In November, 2015, approximately two months before the defendant's then-scheduled release date, the Commonwealth filed a "Motion to Correct and Clarify the Sentence." The Commonwealth argued that, at the 2008 hearing when the plea judge vacated the imposition of CPSL, she had resentenced the defendant to a consecutive term of probation of eight years, from and after his ten-year sentence of incarceration. At a hearing in December, 2015, after the original sentences in this case had terminated, a different Superior Court judge sentenced the defendant to a consecutive term of probation of eight years. The defendant appealed, and we allowed his motion for direct appellate review.

The defendant argues that he was not resentenced to a term of consecutive probation when the original sentencing judge vacated the CPSL portion of his sentence; the proceedings at that hearing lacked the procedural protections of a sentencing hearing; and principles of double jeopardy bar the imposition of a consecutive term of probation by a different judge, almost eight years later, at a hearing conducted after the completion of the defendant's original sentence. We agree and, accordingly, reverse.

1. Facts and prior proceedings . In September, 2004, the defendant was indicted on three charges of rape of a child by force, in violation of G. L. c. 265, § 22A ; kidnapping, in violation of G. L. c. 265, § 26 ; indecent assault and battery on a person age fourteen or older, in violation of G. L. c. 265, § 13H ; and assault and battery, in violation of G. L. c. 265, § 13A, for the September 11, 2014, attack on his then long-term girl friend's fifteen year old niece, who knew him as her "godfather."

On May 26, 2005, the defendant pleaded guilty to all of the indictments. A Superior Court judge sentenced him to a term of imprisonment of from ten years to ten years and one day on each of the convictions of rape, to be served concurrently. On the conviction of kidnapping, the judge sentenced the defendant to a term of probation of eight years,¹ to be served concurrently with his committed sentence, and ordered that, "while incarcerated [the defendant] submit[ ] for sexual offender evaluation, offender evaluation and treatment as ordered by and through the institutions."² When asked if he agreed with those conditions, the defendant answered, "Yes." The judge also ordered that the defendant be placed on CPSL. The two other convictions were placed on file.

On June 16, 2008, having served approximately three and one-half years of both his ten-year term of incarceration and his concurrent eight-year probationary term, the defendant filed, pro se, a "Motion To Vacate Sentences Pursuant to Massachusetts Rule of Criminal Procedure 30(a) [, as appearing in 435 Mass. 1501 (2001) ]," seeking to vacate so much of his sentence as imposed CPSL, in light of this court's decision in Pagan , 445 Mass. at 162, 834 N.E.2d 240.

On July 23, 2008, the sentencing judge conducted a hearing on the defendant's pro se motion to vacate. At the hearing, where the defendant was not represented by counsel, the prosecutor agreed that the CPSL portion of the defendant's sentence had been determined to be unconstitutional, but asked the court "to add some special conditions of [the defendant's] probationary period when he in fact is released from [S]tate prison."

The prosecutor, who was not the prosecutor at the plea hearing, did not request that the defendant's sentence be restructured, or that his sentence of probation be modified to be served consecutively to his sentence of incarceration. Rather, the prosecutor gave the sentencing judge the erroneous impression that the defendant previously had been sentenced to a consecutive eight-year term of probation. The prosecutor said that the additional special conditions of probation she was requesting had not been sought originally as part of the probationary sentence "so not to interfere with any of the conditions that community parole, or what would be involved with the community parole statute." She also stated, incorrectly, that the original sentence included a requirement that, upon release, the defendant "submit to sex offender evaluation and any treatment that is recommended as a result of that sex offender evaluation."

The sentencing judge announced her ruling on the defendant's motion to vacate as follows:

"[T]he sentence that was imposed back on ... May 26, 2005 ... will remain in effect, but the additional provision of lifetime community parole will be deleted or vacated from the original sentence. In its place this [c]ourt agrees that the conditions of probation that include staying away from the victim and her family, staying away from children under the age of [sixteen], and then all the usual probation conditions will apply. Furthermore, it is now mandatory, but at that time in [2005] it was discretionary, this [c]ourt will, under my discretion, add the condition of a [global positioning system (GPS) ] device during the probationary period...."

After a further brief discussion between the prosecutor and judge, the defendant asked, "Will they send me a paper?" The clerk then announced the court's ruling:

"[A]ll conditions that are imposed on May [26, 2005,] stand, except the lifetime community parole is revoked. Special conditions, no contact with the victim or the family, no contact with a child under the age of [sixteen] years of age, plus the [c]ourt orders that you be—you wear the [global positioning] system, and the fee for the GPS system is waived until you become gainfully employed."

The defendant then said, "So the earlier parole—," and the judge interjected, "Yes. The parole is vacated." Other than this, the defendant did not say anything during the hearing.

The defendant completed his original eight-year sentence of probation on May 26, 2013, and his ten-year prison sentence on September 15, 2014. On November 3, 2015, the Commonwealth filed a "Motion to Correct and Clarify the Sentence."³ On December 9, 2015, a different Superior Court judge (the plea judge having retired), conducted a hearing on the Commonwealth's motion and then allowed it, imposing a term of eight years of probation "to run from and after the committed sentence[es]" that had been imposed at the defendant's initial sentencing. The motion judge did so because she determined that, in 2008, the sentencing judge both had vacated the imposition of CPSL and had resentenced the defendant, modifying the eight-year sentence of probation from a concurrent to a consecutive term. The defendant appealed, and we allowed his petition for direct appellate review.

2. Discussion . In 2005, this court concluded that first-time sex offenders could not be sentenced to CPSL, because the statutory guidelines for sentencing such offenders to CPSL were unconstitutionally vague. See Pagan , 445 Mass. at 162, 834 N.E.2d 240. Consequently, any first-time sex offender who was sentenced to CPSL is entitled to have the CPSL portion of the sentence vacated.⁴ See id . at 169-173, 834 N.E.2d 240 ; Commonwealth v. Cumming , 466 Mass. 467, 469, 995 N.E.2d 1094 (2013), citing Pagan, supra at 161, 834 N.E.2d 240. Where CPSL is vacated, and a defendant is still serving the original sentence, a judge may choose to resentence the defendant and "restructure the over-all sentence to provide a lengthy period of probation supervision in place of parole supervision that would have been provided with CPSL," "provided that the total length of incarceration imposed on the defendant for that conviction is not increased." Commonwealth v. Sallop , 472 Mass. 568, 569, 570, 36 N.E.3d 529 (2015).

The requirement that the over-all length of the sentence may not be increased arises as a result of the protection against double jeopardy. See id . ; Cumming , 466 Mass. at 473-474, 995 N.E.2d 1094. A judge may not restructure the sentence in a way that "increase[s] the aggregate punishment imposed under the original sentence" (quotations omitted). Sallop , supra . See Cumming , supra . In Sallop , supra at 571-572, 36 N.E.3d 529, for instance, we determined that a defendant whose sentence of CPSL had been vacated properly could be resentenced to a shorter term of incarceration, with ten years of probation to be served consecutively. If the defendant violated a condition of probation, however, the defendant could be sentenced to a period of incarceration of no longer than two years, in order to avoid unlawfully increasing the aggregate punishment beyond the initial ten-year period of incarceration.

Id . at 569, 572, 36 N.E.3d...