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.
O'Neil, Assistant District Attorney, for the
Vivianne E. Jeruchim for the defendant.
Present: Rubin, Massing, & Englander, JJ.
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.
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],
" 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.
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."
February 28, 2017, the Superior Court probation department
issued the defendant a notice of surrender for alleged
probation violations. 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
Construing the sentence.
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