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Commonwealth v. Pacheco

Supreme Judicial Court of Massachusetts, Middlesex

May 30, 2017

COMMONWEALTH
v.
ANDRES PACHECO

          Heard: February 14, 2017.

         Indictments found and returned in the Superior Court Department on September 30, 2004.

         A motion to vacate sentence, filed on June, 18, 2008, was heard by Leila R. Kern, J., and a motion to correct and clarify sentence, filed on November 30, 2014, was heard by Kathe M. Tuttman, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          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 (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.

         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 ...


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