Supreme Judicial Court of Massachusetts, Middlesex
Heard: February 14, 2017.
found and returned in the Superior Court Department on
September 30, 2004.
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.
Supreme Judicial Court granted an application for direct
Rebecca Kiley for the defendant.
Michael Klunder, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
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).
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
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.
Facts and prior proceedings.
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
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,
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." 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.
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.
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."
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