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SJC-12212
COMMONWEALTH vs. ANDRES PACHECO.
Middlesex. February 14, 2017. - May 30, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Constitutional Law, Sentence, Assistance of counsel, Double
jeopardy. Due Process of Law, Sentence, Assistance of
counsel, Notice. Practice, Criminal, Sentence, Assistance
of counsel, Double jeopardy, Probation.
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.
GAZIANO, J. At issue in this case is whether a consecutive
sentence of eight years of probation, imposed in 2015 by a judge
2
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,
3
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
4
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.
1
Taking into account the sentence credit that the defendant
received for time served awaiting trial, the period of probation
ended within one month of the period of incarceration.
2
The entry on the docket sheet indicates that the defendant
was sentenced to "Probation 8 yrs., . . . this sentence to be
served concurrently with the sentence imposed this day in
[counts nos. 001, 002, and 003, indictments charging rapes of a
child with force]. Def[endant] to submit to evaluation and
treatment for sexual offenders, defendant agrees in open court."
5
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."
6
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
7
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.
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; Commonwealth v. Cumming, 466
Mass. 467, 469 (2013), citing Pagan, supra at 161. Where CPSL
3
The defendant remained in custody after the completion of
his prison sentence because of the previously imposed sentence
on an unrelated case.
4
In 2014, we determined that imposition of community parole
supervision for life is unconstitutional. See Commonwealth v.
Cole, 468 Mass. 294, 295 (2014).
8
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 (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. 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, 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. See
Commonwealth v. Parrillo, 468 Mass. 318, 321 (2014) (double
9
jeopardy considerations prohibit resentencing defendant to any
additional period of incarceration or probation if, at time of
resentencing, defendant has served entire sentence other than
CPSL component); Cumming, supra (defendant who violated term of
probation could not be required to serve more than initial ten-
year sentence).5
In this case, the parties dispute the effect of the
judge's 2008 order, issued at the hearing on the defendant's
motion to vacate CPSL, and whether the order was, indeed, a
resentencing. The Commonwealth contends that the sentencing
judge vacated the CPSL portion of the sentence and implicitly
resentenced the defendant to an consecutive eight-year term of
probation. The defendant maintains that the sentencing judge
merely vacated the imposition of CPSL, and that, accordingly,
there was no error in the absence of counsel at the proceedings.
The defendant argues further that, had the judge intended to
resentence him at that point, any attempt at resentencing was
5
Here, the defendant initially was sentenced to ten years
of incarceration on the rape charges, with eight years of
concurrent probation on the charge of kidnapping. The offense
of rape of a child by force permits a maximum sentence of up to
life in prison, see G. L. c. 265, § 22A, and the maximum term of
incarceration for the offense of kidnapping (without extortion)
is ten years. See G. L. c. 265, § 26. Therefore, under the
terms of the 2015 sentence, were the defendant to have violated
the terms of probation, he could have been subject to an
additional term of ten years' imprisonment, which the court
could have imposed consecutively to any prison sentence the
defendant was then serving.
10
structural error, because the judge did not comply with the due
process requirements for resentencing. Both sides agree that,
if the defendant was not resentenced at the 2008 hearing, the
motion judge could not permissibly have allowed the
Commonwealth's motion to "clarify the sentence" in 2015, after
the defendant had served both the committed portion of the
sentence and the eight-year term of probation.
In considering whether the resentencing in 2015 was in
violation of the protections against double jeopardy, we turn
first to the sentencing judge's actions at the 2008 hearing on
the defendant's motion to vacate.
Where there is a direct conflict between an oral
pronouncement of a sentence and the written judgment and
commitment, "the oral pronouncement, as correctly reported, must
control. The only sentence that is legally cognizable is the
actual oral pronouncement in the presence of the defendant."
United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993),
quoting United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th
Cir. 1974).
When the parties appeared before the sentencing judge in
July, 2008, on the defendant's pro se motion to vacate CPSL, the
Commonwealth did not move for resentencing, and did not provide
the defendant with notice of that possibility. See Commonwealth
v. Cole, 468 Mass. 294, 311 (2014) ("resentencing need only
11
occur where the Commonwealth moves for resentencing; in the
absence of such a motion, a judge would simply allow the
defendant’s motion to vacate the CPSL sentence and leave the
remainder of the sentence unchanged"). The pro se defendant was
not asked if he wanted counsel, nor if he waived his right to
counsel. He also was not asked if he wished to introduce any
evidence in mitigation before any new sentence was pronounced.
Nor was the defendant provided notice of any change in his
sentence other than the statement by the prosecutor, "we're just
adding the conditions now, in lieu of the lifetime community
parole, of stay away from the victim, the victim's family, and
any child under the age of [sixteen]"; the statement by the
clerk that "all conditions that are imposed on May [26, 2005,]
stand, except the lifetime community parole is revoked"; and the
response by the judge to the defendant's question, "So the
earlier parole --" that "Yes. The parole is vacated." After
stating that all previously imposed conditions stood except for
CPSL, the clerk restated the "special conditions" imposed at the
hearing, and then added, "plus the [c]ourt orders that you be --
you wear the GPS system, and the fee for the GPS system is
waived until you become gainfully employed." If indeed the
judge meant by these rulings that the defendant's sentence had
been increased by a period of eight years of probation, these
statements were not calculated to inform the defendant of that
12
order, particularly given that he previously had been subject to
GPS monitoring as one of the conditions of CPSL.
On the other hand, it is clear from the transcript of the
hearing on the motion to vacate that the judge did not
immediately recall the sentence she had imposed in 2005, asking
the prosecutor, for instance, whether the committed sentence had
been for ten and one-half years. When the prosecutor later
stated, "I would just note also for the record that I do see in
the docket sheet a condition that upon the defendant's release
he is also to submit to sex offender evaluation and any
treatment that is recommended as a result of that sex offender
evaluation," the judge stated, "For the record any condition
that was imposed at that time will remain." Thus, it may well
be, as the defendant contends, that the judge did not appoint
counsel because she had no intention of restructuring the
sentence, something that the Commonwealth had not requested, and
did not in fact intend any change in the concurrent probationary
period.
Moreover, at the hearing in December, 2015, on the
Commonwealth's November, 2015, motion to clarify the defendant's
sentence,6 the Commonwealth misinterpreted the sentencing judge's
statements at the plea colloquy in 2005. The prosecutor argued
6
At that point, the defendant was scheduled to be released
from custody in January, 2016.
13
that the sentencing judge plainly had intended that the
defendant be subject to ongoing treatment after release. She
stated that the sentencing judge had imposed the probationary
condition of completion of sex offender treatment while the
defendant was incarcerated because of safety concerns that the
defendant would pose upon being released.
The transcript of the 2005 plea colloquy makes clear,
however, that the sentencing judge ordered the defendant to
attend sex offender treatment as a condition of probation, to be
imposed while the defendant was incarcerated, at the
Commonwealth's urging. The parties, the judge, and the session
clerk discussed in some detail how the sentence could be
structured such that the defendant would be required to, as the
Commonwealth requested, "submit to a [s]ex [o]ffender
[t]reatment [p]rogram while he is incarcerated" or, in the
judge's phrasing, "take advantage of sex offender treatment if
available in any place he's incarcerated" and "for whatever
length of time he's in [S]tate prison." The judge explicitly
declined the defendant's counsel's suggestion that a requirement
of completion of the sex offender treatment program be imposed
as a condition of probation on one of the charges with a shorter
period of incarceration -- such as assault and battery -- rather
than sentencing the defendant to probation on the rape charge,
which carries a maximum sentence of life in prison, as a means
14
of deterring a repeat offense. The judge noted that the real
incentive to complete such a program, if an incarcerated
defendant chose to do so, was in an effort to avoid possible
future civil commitment as a sexually dangerous person.
The Sixth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights guarantee a
criminal defendant the right to counsel at all "critical" stages
of a criminal prosecution. See Commonwealth v. Neary-French,
475 Mass. 167, 170-171 (2016), and cases cited. It is well
established that sentencing is a critical stage at which there
is a right to counsel. See Osborne v. Commonwealth, 378 Mass.
104, 114 (1979); Mass R. Crim. P. 28 (b), 378 Mass. 898 (1979).
"[T]he necessity for the aid of counsel in marshalling the
facts, introducing evidence of mitigating circumstances and in
general aiding and assisting the defendant to present his case
as to sentencing is apparent." Osborne, supra, quoting Mempa v.
Rhay, 389 U.S. 128, 135 (1967). A defendant who is deprived of
the assistance of counsel at sentencing has a right to have the
sentence vacated and to be resentenced after a hearing at which
the defendant and defense counsel are present. See McConnell v.
Rhay, 393 U.S. 2, 3 (1968); Osborne, supra, at 114-115.
The Commonwealth argues that the defendant did not have the
right to counsel at the July, 2008, hearing, because his motion
to vacate CPSL was a motion for postconviction relief. See
15
Parker v. Commonwealth, 448 Mass. 1021, 1023 (2007). The
Commonwealth claimed also before the motion judge, as it does
before us, that in July, 2008, the sentencing judge
"restructured" the defendant's 2005 sentence, arguing, "it is
clear from the record that the intent of [the sentencing judge]
was to add the additional conditions of probation for the
defendant upon release from probation."
The defendant maintains that, in July, 2008, the sentencing
judge did not resentence him to a consecutive term of probation
from and after his committed sentence. The defendant argues, in
the alternative, that if the sentencing judge indeed resentenced
him to a consecutive term of probation of eight years from and
after his committed sentence, she did not provide him with
notice of the resentencing hearing or a meaningful opportunity
to be heard.
While, in many postconviction proceedings, a judge has
discretion to decide whether to assign counsel to represent a
defendant, see Parker, 448 Mass. at 1023; Mass. R. Crim. P.
30 (c) (5), as appearing in 435 Mass. 1501 (2001), there is no
such discretion at a hearing on a motion for resentencing, where
a judge is required to appoint counsel to represent an indigent
defendant. Further, whether acting pro se or through an
attorney, a defendant has a right to be present at sentencing
(or resentencing) and to present information in an effort to
16
mitigate the sentence. Green v. United States, 365 U.S. 301,
304 (1961). Commonwealth v. Williamson, 462 Mass. 676, 685
(2012). See Commonwealth v. Jones, 14 Mass. App. Ct. 991, 991
(1982), quoting Mass. R. Crim. P. 28 (b) (either defendant or
defendant's attorney must be allowed to be heard at sentencing).
Where a defendant is not afforded the right to be heard at
sentencing, the defendant is entitled to seek resentencing.
Commonwealth v. Whitford, 16 Mass. App. Ct. 448, 455 (1983),
citing Katz v. Commonwealth, 379 Mass. 305, 315-316 (1979).
Similarly, although there is no per se requirement that a
judge or clerk announce all components of a defendant's sentence
in open court in order for the sentence to be effective, a
defendant must have notice of its terms at the time the sentence
is imposed. See Williamson, 462 Mass. at 685; Commonwealth v.
Power, 420 Mass. 410, 421 (1995), cert. denied, 516 U.S. 1042
(1996).
"'A criminal defendant has the right to be present at
his own sentencing.' United States v. Vega–Ortiz, 425 F.3d
20, 22 (1st Cir. 2005). Consistent with this right, the
oral pronouncement of a sentence generally controls over
the written expression where there exists a 'material
conflict' between the two. United States v. Ortiz–Torres,
449 F.3d 61, 74 (1st Cir. [2006]) . . . . However, 'no
material conflict exists where the defendant is on notice
that he is subject to the terms included in the written
judgment.' Id."
Williamson, supra. See Commonwealth v. MacDonald, 435 Mass.
1005, 1006 (2001). Any ambiguity in the terms of probation will
17
be construed in favor of the defendant. Commonwealth v. Ruiz,
453 Mass. 474, 481-482 (2009).
Here, at the hearing on the defendant's motion to vacate
CPSL, the judge ordered that "1) The original sentence on [May
26, 2005,] stands except the lifetime community parole was
vacated. 2) Additional special conditions of probation: a) No
contact with the victim or her family[;] b) No contact with
children under sixteen years of age[;] c) GPS upon release on
probation[;] d) GPS fee is waived."
We need not engage in the speculation that both parties
urge concerning the sentencing judge's intent when she allowed
the defendant's motion to vacate CPSL. As the defendant
concedes, because his sentence had not been completed at that
point, the judge permissibly could have restructured it, albeit
not in such a way so as to increase the over-all scheme of
punishment. See Sallop, 472 Mass. at 570-572. Nothing in our
review of the transcripts indicates that the judge stated an
intention to impose an additional eight-year term of probation.
It is also clear that the unrepresented defendant was not
provided notice, and was not provided an opportunity to present
any evidence in mitigation. If the judge intended to
restructure the defendant's sentence, and did so without counsel
present and without the defendant's waiver of counsel, that
would have been structural error requiring resentencing. See
18
Osborne, 378 Mass. at 114, quoting Mempa v. Rhay, 389 U.S. at
135; Commonwealth v. Brennick, 14 Mass. App. Ct. 952, 953
(1982), and cases cited. At this stage, however, it would be
impossible to discern what the now-retired judge would have
intended had she not been under a misapprehension concerning the
terms of the sentence she previously had imposed.
Moreover, the defendant had completed both his term of
probation and his term of incarceration well before the
Commonwealth's November, 2015, motion to "clarify" the
defendant's sentence. Thus, any attempt in 2015 to require an
additional term of probation would have been in violation of the
prohibitions against double jeopardy. "[T]he constitutional
guarantee against double jeopardy protects a defendant not only
against a second prosecution for the same offense after
acquittal or conviction but also against multiple punishments
for the same offense" (quotations and citation omitted).
Commonwealth v. Goodwin, 458 Mass. 11, 19 (2010). For this
reason, a defendant cannot be resentenced for the same offense
after completion of the original sentence. Id. at 19-20.
In this case, because the defendant's sentence was not
restructured in July, 2008, whatever the judge's intent at that
hearing, the defendant's eight-year sentence of probation, which
began in May, 2005, terminated in 2013. The defendant's ten-
year sentence of incarceration, also begun in May, 2005,
19
terminated in 2014.7 Therefore, because all parts of the
defendant's sentence had been completed at the time of the
November, 2015, motion, at that point the sentence could not
have been modified in any way. Id.
3. Conclusion. The order allowing the Commonwealth's
motion to correct and clarify the sentence is vacated and set
aside. The matter is remanded to the Superior Court for entry
of an order dismissing the motion as moot, on the ground that
the defendant's sentence had been completed before the motion
was filed.
So ordered.
7
The defendant received credit for the time he was held in
pretrial detention, beginning in 2004.