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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 

 

5 For example, the prohibitions on direct or indirect 

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 incourt 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.