Commonwealth v. Pacheco (Lawyers Weekly No. 10-091-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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, a different Superior Court judge sentenced the […]