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Commonwealth v. Pacheco

Appeals Court of Massachusetts, Suffolk

December 9, 2019

COMMONWEALTH
v.
ALBERT PACHECO.

          Heard: September 5, 2019.

          Indictments sworn to and received in the Superior Court Department on July 31, 1997. Motions to dismiss notice of probation violation and to terminate probation, filed on April 11, 2017, were heard by Beverly J. Cannone, J.

          Mary O'Neil, Assistant District Attorney, for the Commonwealth.

          Vivianne E. Jeruchim for the defendant.

          Present: Rubin, Massing, & Englander, JJ.

          ENGLANDER, J.

         The Commonwealth appeals from an order that dismissed probation violation proceedings against the defendant because the defendant's probation had ended before the alleged violations occurred. The case requires us to consider whether the defendant's term of probation began when his prison sentence ended, where the defendant was not discharged from custody when his prison sentence ended but instead was committed to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person. We conclude that in light of the plain language of the defendant's sentence, his probation began upon his release from prison and while he was committed to the treatment center, and ended before the alleged violations occurred. We also conclude that the doctrine of judicial estoppel does not prevent the defendant from asserting that his probation had ended. We accordingly affirm the order under appeal.

         Background.

         In 1997, the defendant pleaded guilty to three offenses -- indecent assault and battery on a child under the age of fourteen (three counts) (offense A), rape of a child (offense B), and assault with intent to rape a child under the age of fourteen (offense C). He was sentenced to from six to nine years in State prison for offense B. He was sentenced to probation for offense C, as follows: "Probation recognized in $100 with probation officer as surety, for the term of [t]en (10) years as to Offense C; to be served from and after release of incarceration on [offense B], "[1] At the time of sentencing the defendant was not civilly committed as a sexually dangerous person pursuant to G. L. c. 123A, nor were such proceedings pending.

         The defendant concluded his sentence for offense B in 2005, but rather than being released he was civilly committed to the treatment center. Approximately ten years later, in August of 2015, after a trial pursuant to c. 123A, § 9, a jury concluded that the defendant was no longer sexually dangerous, and he was discharged. During that 2015 trial, several of the defendant's witnesses -- including a probation officer and three experts -- testified that if the defendant were discharged from the treatment center he would be subject to probation for ten more years. The defendant's order of discharge required that he "report to the Bristol Superior Court Probation Department within 24 hours of release."

         On February 28, 2017, the Superior Court probation department issued the defendant a notice of surrender for alleged probation violations.[2] The defendant moved to dismiss the probation violation proceeding, arguing that his ten years of probation had concluded in 2015, over a year before the alleged violations occurred. The Commonwealth disagreed, arguing (1) that the defendant's probation did not begin until he was released from his sexually dangerous person commitment, and (2) alternatively, that the defendant was "judicially estopped" from contending that his probation had concluded, because the defendant had presented the opposite position through evidence and argument in his 2015 trial. A judge of the Superior Court (motion judge) nevertheless dismissed the probation violation proceedings, ruling that under the sentence's plain language the probation commenced on the defendant's release from incarceration for offense B, and that there was no sound basis to "suspen[d] or stay" execution of that sentence due to the defendant's civil commitment. This appeal followed.

         Discussion.

         1. Construing the sentence.

         The first issue is the proper understanding of the defendant's sentence, and in particular, when his probation commenced. We construe a court order as we would any other legal document, with the touchstone being the intent of the judge. Commonwealthv. Bruzzese, 437 Mass. 606, 615 (2002). United Statesv. Spallone, 399 F.3d 415, 424 (2d Cir. 2005). Thus, as with the construction of any legal document, we begin with the text. See Southern Union Co. v. Department of Pub. Utils., 458 Mass. 812, 820 (2011) (contract interpreted "according to its plain meaning"). Where the language employed is unambiguous we need look no further. Spallone, 399 F.3d at 424. See Thurdinv. SEI Boston, LLC, 452 Mass. 436, 444 (2008) ("Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative ...


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