Commonwealth v. Pacheco, 477 Mass. 206

Background

In 2005 Pacheco pleaded guilty to multiple counts including rape of a child; judge sentenced him to 10 years incarceration (concurrent rapes) and an 8-year term of probation (kidnapping) to run concurrently; the judge also imposed lifetime community parole supervision for life (CPSL).
After this Court's decision in Commonwealth v. Pagan (2005) holding CPSL unconstitutional as applied to first-time offenders, Pacheco filed a pro se motion in June 2008 to vacate the CPSL portion of his sentence while still incarcerated.
At a July 2008 hearing the plea judge (with Pacheco unrepresented and not asked to waive counsel) vacated CPSL and announced additional special probation conditions (no contact with victim/family, no contact with children under 16, GPS monitoring). The Commonwealth did not expressly move for resentencing at that hearing.
Pacheco completed his 8-year probation in May 2013 and his 10-year incarceration in Sept 2014. In Nov 2015 the Commonwealth filed a “Motion to Correct and Clarify the Sentence,” asserting the 2008 ruling had actually imposed an 8-year consecutive probation to run after incarceration.
A different judge granted the 2015 motion and ordered an 8-year consecutive probation. Pacheco appealed; the SJC granted direct review to decide whether the 2015 action violated double jeopardy and related procedural protections.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Pacheco)	Held
Whether the 2008 hearing resentenced Pacheco to an 8-year probation consecutive to imprisonment	2008 order implicitly restructured the sentence to impose probation consecutive to the committed term	2008 order merely vacated CPSL and left original concurrent probation unchanged; no resentencing occurred	Court: 2008 transcript does not show an intended consecutive 8-year resentencing; treat as vacatur of CPSL and addition of conditions only
Right to counsel at the 2008 proceeding	Resentencing was not requested, so counsel not required	If 2008 was resentencing, Pacheco had a right to counsel and opportunity to be heard; none were afforded	Court: resentencing requires appointed counsel; transcript shows no notice or waiver, so if resentencing had occurred it would be structural error; but here record does not show resentencing occurred
Notice and opportunity to be heard re: changed sentence	Commonwealth contends judge’s remarks and clerk’s statements sufficed to effect changes	Pacheco lacked meaningful notice that his aggregate punishment was being changed and had no chance to present mitigation	Court: statements at hearing were insufficient to notify defendant of any increase; ambiguity construed for defendant
Double jeopardy bar to 2015 resentencing after sentence completion	Commonwealth sought correction in 2015 to reflect alleged 2008 restructuring	Pacheco argued any attempt in 2015 to add consecutive probation violated double jeopardy because sentence had fully expired	Court: Because all parts of sentence had been completed before the 2015 motion, imposing additional probation then would violate double jeopardy; 2015 order vacated and motion dismissed as moot

Key Cases Cited

Commonwealth v. Pagan, 445 Mass. 161 (Pagan held CPSL unconstitutional as applied to first-time offenders)
Commonwealth v. Cumming, 466 Mass. 467 (vacatur of CPSL permits restructuring only without increasing aggregate punishment)
Commonwealth v. Sallop, 472 Mass. 568 (resentencing to probation allowed in place of CPSL but cannot increase total punishment)
Commonwealth v. Cole, 468 Mass. 294 (resentencing occurs only when Commonwealth moves for it; otherwise court should simply vacate CPSL)
Osborne v. Commonwealth, 378 Mass. 104 (right to counsel at sentencing is a critical stage)
Mempa v. Rhay, 389 U.S. 128 (assistance of counsel required at sentencing; denial is structural error)
McConnell v. Rhay, 393 U.S. 2 (defendant deprived of counsel at sentencing entitled to resentencing)