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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Commonwealth v. Pacheco (Lawyers Weekly No. 11-039-15)
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 13-P-1821 Appeals Court COMMONWEALTH vs. MICHAEL PACHECO. No. 13-P-1821. Bristol. December 4, 2014. – April 17, 2015. Present: Cohen, Fecteau, & Massing, JJ. Constitutional Law, Waiver of constitutional rights by juvenile, Admissions and confessions. Practice, Criminal, Motion to suppress, Admissions and confessions, Waiver. Waiver. Complaint received and sworn to in the Bristol County Division of the Juvenile Court Department on September 28, 2012. Indictments found and returned in the Superior Court Department on November 1, 2012. A pretrial motion to suppress evidence was heard by Lawrence Moniz, J., in the Bristol County Division of the Juvenile Court Department. An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Tara L. Blackman, Assistant District Attorney, for the Commonwealth. Joseph Maggiacomo, III, for the juvenile. MASSING, J. Following the execution of a search warrant, resulting in the discovery of a handgun and several bags of heroin in the defendant youthful offender’s bedroom, the Taunton police arrested the juvenile and took him to the police station to question him about his suspected involvement in a shooting that took place on the railroad tracks near his home. Because he was sixteen years old, the police arranged for the juvenile’s guardian to be present during questioning. A Juvenile Court judge found that the juvenile validly waived his Miranda rights at the outset of questioning, but that the police failed to honor his mid-interview request to consult with his guardian. Accordingly, the judge denied the juvenile’s motion to suppress statements made during the first part of the interview, but allowed the motion with respect to statements made after his request to consult. We affirm. Background. The facts found by the judge at the hearing on the motion to suppress, as amplified by uncontested evidence presented at the hearing and by the contents of the videotaped interview,[1] are as follows. On September 22, 2012, at approximately 8:30 P.M., two Taunton police officers went to the apartment where the juvenile lived with his guardian, Crystal Courtney,[2] to execute a search warrant for a firearm as part of an investigation into a shooting. After discovering a handgun and several […]
Commonwealth v. Pacheco (Lawyers Weekly No. 10-060-13)
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‑11216 COMMONWEALTH vs. ANTONIO L. PACHECO. Essex. December 6, 2012. ‑ April 5, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Firearms. Constitutional Law, Search and seizure. Search and Seizure, Motor vehicle, Threshold police inquiry, Probable cause. Threshold Police Inquiry. Probable Cause. Evidence, Firearm. Complaint received and sworn to in the Lynn Division of the District Court Department on March 2, 2011. A pretrial motion to suppress evidence was heard by Stacey Fortes‑White, J. An application for leave to prosecute an interlocutory appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Paul R. Rudof, Committee for Public Counsel Services (Tracy Walts, Committee for Public Counsel Services, with him) for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Michael D. Cutler & Steven S. Epstein, for National Organization for the Reform of Marijuana Laws, amicus curiae, submitted a brief. Ezekiel Edwards, of New York, Matthew R. Segal, & Alex G. Philipson, for American Civil Liberties Union of Massachusetts & another, amici curiae, submitted a brief. DUFFLY, J. The defendant appeals from the denial of his motion to suppress a firearm and other evidence found in a backpack in the trunk of a vehicle that had been stopped by a State trooper. A District Court judge determined that, after the trooper smelled freshly burnt marijuana and was directed to a small bag of marijuana on the floor of the vehicle, occupied by the defendant and four others, he had probable cause to believe that a crime had been committed and that evidence of that crime could be found in the trunk.[1] A single justice of this court allowed the defendant’s application for leave to file an interlocutory appeal in the Appeals Court pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). We granted the defendant’s application for direct appellate review. Considering this case in conjunction with our decisions in Commonwealth v. Jackson, ante , (2013), and Commonwealth v. Daniel, ante , (2013), we conclude that the trooper did not have probable cause to believe that a criminal […]