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17-P-1254 Appeals Court
COMMONWEALTH vs. ALBERT PACHECO.
No. 17-P-1254.
Suffolk. September 5, 2019. - December 9, 2019.
Present: Rubin, Massing, & Englander, JJ.
Practice, Criminal, Revocation of probation, Sentence. Due
Process of Law, Probation revocation, Sentence. Sex
Offender. Practice, Civil, Sex offender, Civil commitment.
Judicial Estoppel.
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.
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
2
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
3
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
1 The defendant received an identical concurrent sentence of
probation on offense A. There were several special conditions
of probation, discussed infra.
2 The probation department first issued a notice of
surrender for the following alleged violations: failure to
report to the probation department; failure to provide
verification of sex offender registration; failure to provide
4
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
verification of sex offender treatment; and failure to pay
probation supervision fees. On April 22, 2017, the probation
department amended the notice to include additional alleged
violations: attempt to commit a crime; forgery; and uttering a
forged instrument.
5
being the intent of the judge. Commonwealth v. Bruzzese, 437
Mass. 606, 615 (2002). United States v. 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 Thurdin v. 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 intent"). Compare Commonwealth v. Ruiz, 453 Mass.
474, 480-481 (2009) (sentence could not be construed to have
probation begin during incarceration, where language of sentence
did not give fair notice of same).
Here, the text of the judge's sentence is unambiguous: the
probation begins "from and after the release of incarceration on
[offense B]." The defendant's incarceration for offense B was
from six to nine years, and he completed serving that
"incarceration" no later than 2005.3 Under the plain language of
the sentence, the defendant's probation began then.
3 The defendant's civil commitment pursuant to G. L. c. 123A
serves different purposes, is distinct from any criminal
penalty, and does not constitute "incarceration." See, e.g.,
Hill, petitioner, 422 Mass. 147, 154, cert. denied, 519 U.S. 867
(1996).
6
The Commonwealth takes the opposite position, because in
its view the sentencing judge did not intend the defendant's
probation to begin until the defendant was released into the
community. Among other things, the Commonwealth points to the
judge's special conditions of probation, some of which would
apply only once the defendant were released to the community.4
The Commonwealth accordingly argues that this case is
indistinguishable from our decision in Commonwealth v. Sheridan,
51 Mass. App. Ct. 74 (2001).
While Sheridan involved similar factual circumstances to
those at issue, its reasoning does not control here. In
4 The special conditions included:
"14. You are to have no direct or indirect contact with
the victim(s) of this case(s) or their families.
"15. You are to attend sexual abuse perpetrator counseling
at your expense as directed by the Probation Department.
"16. You are not to reside in a household with minor
children except your own and that you have no unsupervised
contact with minor children except with the permission of
the Probation Department.
"17. You are not to be employed in a job that puts you
into contact with minor children on a regular basis except
with the permission of the Probation Department.
"18. You are not to perform voluntary activities that put
you into contact with minor children.
"19. You are to report to the New Bedford Superior Court
Probation Department within 72 hours of your release."
7
Sheridan, the defendant's probation was ordered to start "from
and after any sentences [he] is now serving." Sheridan, 51
Mass. App. Ct. at 75. This court reviewed the facts and
concluded that the sentencing judge did not intend probation to
start if the defendant were civilly committed, but only intended
probation to commence once the defendant was released into the
community. Id. at 77. The decision accordingly turned on a
determination of the sentencing judge's intent, and on the
defendant's particular facts.
We cannot reach the same conclusion here that we did in
Sheridan. The best evidence of the sentencing judge's intent is
the language he employed, see, e.g., 135 Wells Ave., LLC v.
Housing Appeals Comm., 478 Mass. 346, 354 (2017) (construing
statute); United States v. Flynn, 49 F.3d 11, 13-15 (1st Cir.
1995), and here the judge's language is unambiguous: probation
commences "from and after release of incarceration on [offense
B]." This language leaves no room to delay commencement of
probation. The judge's special probation conditions do not
cause us to alter our conclusion; while it is true that some of
those conditions would not apply until the defendant had been
released into the community, others would apply even while he
was civilly committed.5 More importantly, the fact that the
For example, the prohibitions on direct or indirect
5
contact with the victim, and the prohibitions on contact with
8
judge's special conditions of probation anticipated that the
defendant would have been released to the community does not
mean that the clear language as to when probation commenced can
be ignored. When the judge ordered those special conditions, it
was unknown whether civil commitment would occur, and in any
event, by its nature the existence and length of any civil
commitment is not predictable; accordingly, at the time of
sentencing, the judge would have anticipated a release to the
community during the probation period. The judge's decision to
include such conditions thus does not tell us that he intended
to delay probation until after any release from civil
commitment.6
Our conclusion is bolstered by the general rule that
"[s]entences are to be executed forthwith unless suspended or
stayed for the exceptional reasons permitted by law."
minor children, could have had application while the defendant
was committed to the treatment center. So, too, could the
requirement to attend sex offender treatment.
6 The Sheridan opinion, 51 Mass. App. Ct. at 77, reasoned
that the "purposes of probation" were better served in that case
by having probation commence after release into the community.
While we do not question that conclusion, it is the terms of the
sentence that must control. If the judge here had said
explicitly that probation did not commence until release to the
community, that would present a different case.
While the Supreme Judicial Court referenced the Sheridan
decision in a footnote in Commonwealth v. Bunting, 458 Mass.
569, 570 n.3 (2010), the reference was for background purposes,
and was not part of any holding in the case.
9
Commonwealth v. McLaughlin, 431 Mass. 506, 520 (2000), quoting
Mariano v. Judge of Dist. Court of Cent. Berkshire, 243 Mass.
90, 92 (1922). What the Commonwealth contends, in essence, is
that the commencement of the defendant's probation was
presumptively stayed by the intervening event that he was
civilly committed. In McLaughlin, the Supreme Judicial Court
grappled with a related issue, where a sentencing judge had
suspended the commencement of a defendant's manslaughter
sentence because the defendant had been civilly committed (and
indeed, where the defendant had been found not guilty by reason
of insanity as to first degree murder charges). After
discussing the case law and the limited grant of stay authority
in Mass. R. Crim. P. 31, 378 Mass. 902 (1979), the McLaughlin
court held that the sentencing judge lacked the power to so
suspend the defendant's sentence. McLaughlin, 431 Mass. at 520.
While McLaughlin addressed a stay of incarceration, rather than
a delay of the commencement of probation, its reasoning
nevertheless is instructive. Here, where the judge used
unambiguous language to define when probation commenced, there
is no sound basis to delay that commencement. Compare Ruiz, 453
Mass. at 480. In short, the defendant's probation began when he
was released from incarceration on offense B, and it ended ten
years later, in 2015, before the alleged violations at issue
occurred.
10
2. Judicial estoppel. Alternatively, the Commonwealth
contends that the defendant is judicially estopped from taking
the position that his probation ran while he was civilly
committed. The Commonwealth's contention is not without force;
the defendant concedes7 that in his 2015 sexually dangerous
person trial he put on evidence, and argued, that if released he
would remain on probation for ten more years. The result of
that trial was that the jury found the defendant no longer
sexually dangerous. We conclude, however, that a criminal
sentence cannot be altered by judicial estoppel.
We may assume without deciding that the basic elements of
judicial estoppel are present here. In Otis v. Arbella Mut.
Ins. Co., 443 Mass. 634, 640-641 (2005), the court stated that
"two fundamental elements are widely recognized as
comprising the core of a claim of judicial estoppel.
First, the position being asserted in the litigation must
be 'directly inconsistent,' meaning 'mutually exclusive'
of, the position asserted in a prior proceeding. . . .
Second, the party must have succeeded in convincing the
court to accept its prior position."
7 The Commonwealth did not provide a transcript of the
August 2015 sexually dangerous person trial, or any other
relevant pleadings, and accordingly we do not have the original
record of the evidence the defendant adduced. Such evidence
ordinarily would be needed when evaluating an assertion of
judicial estoppel. However, in her decision the judge
summarized the testimony of the defendant's witnesses, to the
effect that if released the defendant would be under supervised
probation for ten more years. The defendant does not contest
the judge's summary on appeal.
11
The defendant's position in this case -- that his probation
ended in 2015 -- is "directly inconsistent" with the position he
took in his sexually dangerous person trial. In addition, there
is at least a fair argument that the defendant "succeeded" in
his contentions to the sexually dangerous person jury, because
after the defendant emphasized that he would remain on
probation, the jury found that the defendant should no longer be
considered sexually dangerous.8
8 The defendant asserts (and the motion judge ruled) that
the success element is not met, because one cannot know what the
jury took into account in reaching its decision. Although we
need not decide the issue, we note that if this argument were
correct it would render judicial estoppel inapplicable to many
sets of facts where the prior proceeding was a jury trial. The
purpose of the doctrine is to prevent litigants from "playing
fast and loose with the courts" by adopting a position in
litigation, "secur[ing] a favorable decision," and thereafter
adopting "a contradictory position in search of legal advantage"
(citations omitted). Otis, 443 Mass. at 641-642. Such actions
are no less undesirable because the inconsistent position was
asserted to a jury. Indeed, Otis is itself a case where the
plaintiff was estopped due to a position he asserted before a
jury. Id. at 642-643. See also Scarano v. Central R. Co. of
N.J., 203 F.2d 510, 513 (3d Cir. 1953) (applying judicial
estoppel based upon position previously asserted in jury trial).
The defendant also suggests that the success element is not
met because his argument about probation was not particularly
important to the issues before the jury. This argument might
have some force, in the sense that judicial estoppel should not
apply to assertions that were tangential or collateral in the
prior action, but we need not reach the argument here. The
question whether the success element has been met will
necessarily depend on the facts of each case. Otis, 443 Mass.
at 640-642.
12
But while we are not unsympathetic to the Commonwealth's
concern, we nevertheless hold that here the doctrine of judicial
estoppel cannot afford the relief the Commonwealth requests. In
essence, the Commonwealth is seeking to extend the length of the
defendant's sentence based upon the defendant's incorrect in-
court representations as to his probation term. A sentence,
however, is a court order and a matter of public record, and its
contours are defined as a matter of law. See, e.g., Carlino v.
Commissioner of Correction, 355 Mass. 159, 162 (1969). The
terms of the sentence do not implicate the defendant alone, but
must be executed by various actors -- the judge, the courts, the
corrections department, and the probation department, in
particular. Once established by the judge, it follows that the
terms of a sentence cannot be varied as a result of the
defendant's in-court representations. To be clear, we are not
saying that judicial estoppel cannot apply in criminal matters,
if the appropriate circumstances are shown.9 See Commonwealth v.
9 Nor do we hold that judicial estoppel cannot apply to
assertions on questions of law, as opposed to questions of fact.
See Bay State Gas Co. v. Department of Pub. Utils., 459 Mass.
807, 818 (2011). Although judicial estoppel is less likely to
apply to assertions of law, application of the doctrine is too
nuanced for such a bright line rule. Compare Law Office of John
H. Eggertsen, P.C. v. Commissioner of Internal Revenue, 800 F.3d
758, 766 (6th Cir. 2015) (judicial estoppel does not apply to
bar reversal of position on issue of law), with Republic of
Ecuador v. Connor, 708 F.3d 651, 658 (5th Cir. 2013) (applying
judicial estoppel to prevent assertion of contradictory legal
position).
13
Gardner, 67 Mass. App. Ct. 744, 747 (2006). Rather, we simply
hold that judicial estoppel cannot apply to extend the length of
a sentence already imposed.
Order entered June 23, 2017,
affirmed.
Commonwealth v. Pacheco
Combined Opinion