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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
                                                                     2


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,
                                                                   3


a different Superior Court judge sentenced the defendant to a

consecutive term of probation of eight years.   The defendant

appealed, and we allowed his motion for direct appellate review.

    The defendant argues that he was not resentenced to a term

of consecutive probation when the original sentencing judge

vacated the CPSL portion of his sentence; the proceedings at

that hearing lacked the procedural protections of a sentencing

hearing; and principles of double jeopardy bar the imposition of

a consecutive term of probation by a different judge, almost

eight years later, at a hearing conducted after the completion

of the defendant's original sentence.   We agree and,

accordingly, reverse.

    1.   Facts and prior proceedings.   In September, 2004, the

defendant was indicted on three charges of rape of a child by

force, in violation of G. L. c. 265, § 22A; kidnapping, in

violation of G. L. c. 265, § 26; indecent assault and battery on

a person age fourteen or older, in violation of G. L. c. 265,

§ 13H; and assault and battery, in violation of G. L. c. 265,

§ 13A, for the September 11, 2014, attack on his then long-term

girl friend's fifteen year old niece, who knew him as her

"godfather."

    On May 26, 2005, the defendant pleaded guilty to all of the

indictments.   A Superior Court judge sentenced him to a term of

imprisonment of from ten years to ten years and one day on each
                                                                     4


of the convictions of rape, to be served concurrently.     On the

conviction of kidnapping, the judge sentenced the defendant to a

term of probation of eight years,1 to be served concurrently with

his committed sentence, and ordered that, "while incarcerated

[the defendant] submit[] for sexual offender evaluation,

offender evaluation and treatment as ordered by and through the

institutions."2   When asked if he agreed with those conditions,

the defendant answered, "Yes."     The judge also ordered that the

defendant be placed on CPSL.     The two other convictions were

placed on file.

     On June 16, 2008, having served approximately three and

one-half years of both his ten-year term of incarceration and

his concurrent eight-year probationary term, the defendant

filed, pro se, a "Motion To Vacate Sentences Pursuant to

Massachusetts Rule of Criminal Procedure 30(a)[, as appearing in

435 Mass. 1501 (2001)]," seeking to vacate so much of his

sentence as imposed CPSL, in light of this court's decision in

Pagan, 445 Mass. at 162.

     1
       Taking into account the sentence credit that the defendant
received for time served awaiting trial, the period of probation
ended within one month of the period of incarceration.
     2
       The entry on the docket sheet indicates that the defendant
was sentenced to "Probation 8 yrs., . . . this sentence to be
served concurrently with the sentence imposed this day in
[counts nos. 001, 002, and 003, indictments charging rapes of a
child with force]. Def[endant] to submit to evaluation and
treatment for sexual offenders, defendant agrees in open court."
                                                                    5


    On July 23, 2008, the sentencing judge conducted a hearing

on the defendant's pro se motion to vacate.    At the hearing,

where the defendant was not represented by counsel, the

prosecutor agreed that the CPSL portion of the defendant's

sentence had been determined to be unconstitutional, but asked

the court "to add some special conditions of [the defendant’s]

probationary period when he in fact is released from [S]tate

prison."

    The prosecutor, who was not the prosecutor at the plea

hearing, did not request that the defendant's sentence be

restructured, or that his sentence of probation be modified to

be served consecutively to his sentence of incarceration.

Rather, the prosecutor gave the sentencing judge the erroneous

impression that the defendant previously had been sentenced to a

consecutive eight-year term of probation.     The prosecutor said

that the additional special conditions of probation she was

requesting had not been sought originally as part of the

probationary sentence "so not to interfere with any of the

conditions that community parole, or what would be involved with

the community parole statute."   She also stated, incorrectly,

that the original sentence included a requirement that, upon

release, the defendant "submit to sex offender evaluation and

any treatment that is recommended as a result of that sex

offender evaluation."
                                                                    6


    The sentencing judge announced her ruling on the

defendant's motion to vacate as follows:

         "[T]he sentence that was imposed back on . . .
    May 26, 2005 . . . will remain in effect, but the
    additional provision of lifetime community parole will be
    deleted or vacated from the original sentence. In its
    place this [c]ourt agrees that the conditions of probation
    that include staying away from the victim and her family,
    staying away from children under the age of [sixteen], and
    then all the usual probation conditions will apply.
    Furthermore, it is now mandatory, but at that time in
    [2005] it was discretionary, this [c]ourt will, under my
    discretion, add the condition of a [global positioning
    system (GPS)] device during the probationary
    period . . . ."

After a further brief discussion between the prosecutor and

judge, the defendant asked, "Will they send me a paper?"    The

clerk then announced the court's ruling:

         "[A]ll conditions that are imposed on May [26, 2005,]
    stand, except the lifetime community parole is revoked.
    Special conditions, no contact with the victim or the
    family, no contact with a child under the age of [sixteen]
    years of age, plus the [c]ourt orders that you be -- you
    wear the [global positioning] system, and the fee for the
    GPS system is waived until you become gainfully employed."

The defendant then said, "So the earlier parole --," and the

judge interjected, "Yes.   The parole is vacated."   Other than

this, the defendant did not say anything during the hearing.

    The defendant completed his original eight-year sentence of

probation on May 26, 2013, and his ten-year prison sentence on

September 15, 2014.   On November 3, 2015, the Commonwealth filed
                                                                      7


a "Motion to Correct and Clarify the Sentence."3     On December 9,

2015, a different Superior Court judge (the plea judge having

retired), conducted a hearing on the Commonwealth's motion and

then allowed it, imposing a term of eight years of probation "to

run from and after the committed sentence[es]" that had been

imposed at the defendant's initial sentencing.     The motion judge

did so because she determined that, in 2008, the sentencing

judge both had vacated the imposition of CPSL and had

resentenced the defendant, modifying the eight-year sentence of

probation from a concurrent to a consecutive term.     The

defendant appealed, and we allowed his petition for direct

appellate review.

     2.     Discussion.   In 2005, this court concluded that first-

time sex offenders could not be sentenced to CPSL, because the

statutory guidelines for sentencing such offenders to CPSL were

unconstitutionally vague.     See Pagan, 445 Mass. at 162.

Consequently, any first-time sex offender who was sentenced to

CPSL is entitled to have the CPSL portion of the sentence

vacated.4    See id. at 169-173;   Commonwealth v. Cumming, 466

Mass. 467, 469 (2013), citing Pagan, supra at 161.     Where CPSL

     3
       The defendant remained in custody after the completion of
his prison sentence because of the previously imposed sentence
on an unrelated case.
     4
       In 2014, we determined that imposition of community parole
supervision for life is unconstitutional. See Commonwealth v.
Cole, 468 Mass. 294, 295 (2014).
                                                                      8


is vacated, and a defendant is still serving the original

sentence, a judge may choose to resentence the defendant and

"restructure the over-all sentence to provide a lengthy period

of probation supervision in place of parole supervision that

would have been provided with CPSL," "provided that the total

length of incarceration imposed on the defendant for that

conviction is not increased."     Commonwealth v. Sallop, 472 Mass.

568, 569, 570 (2015).

       The requirement that the over-all length of the sentence

may not be increased arises as a result of the protection

against double jeopardy.    See id.; Cumming, 466 Mass. at 473-

474.   A judge may not restructure the sentence in a way that

"increase[s] the aggregate punishment imposed under the original

sentence" (quotations omitted).    Sallop, supra.   See Cumming,

supra.   In Sallop, supra at 571-572, for instance, we determined

that a defendant whose sentence of CPSL had been vacated

properly could be resentenced to a shorter term of

incarceration, with ten years of probation to be served

consecutively.   If the defendant violated a condition of

probation, however, the defendant could be sentenced to a period

of incarceration of no longer than two years, in order to avoid

unlawfully increasing the aggregate punishment beyond the

initial ten-year period of incarceration.     Id. at 569, 572.    See

Commonwealth v. Parrillo, 468 Mass. 318, 321 (2014) (double
                                                                   9


jeopardy considerations prohibit resentencing defendant to any

additional period of incarceration or probation if, at time of

resentencing, defendant has served entire sentence other than

CPSL component); Cumming, supra (defendant who violated term of

probation could not be required to serve more than initial ten-

year sentence).5

     In this case, the parties dispute the effect of the

judge's 2008 order, issued at the hearing on the defendant's

motion to vacate CPSL, and whether the order was, indeed, a

resentencing.   The Commonwealth contends that the sentencing

judge vacated the CPSL portion of the sentence and implicitly

resentenced the defendant to an consecutive eight-year term of

probation.   The defendant maintains that the sentencing judge

merely vacated the imposition of CPSL, and that, accordingly,

there was no error in the absence of counsel at the proceedings.

The defendant argues further that, had the judge intended to

resentence him at that point, any attempt at resentencing was


     5
       Here, the defendant initially was sentenced to ten years
of incarceration on the rape charges, with eight years of
concurrent probation on the charge of kidnapping. The offense
of rape of a child by force permits a maximum sentence of up to
life in prison, see G. L. c. 265, § 22A, and the maximum term of
incarceration for the offense of kidnapping (without extortion)
is ten years. See G. L. c. 265, § 26. Therefore, under the
terms of the 2015 sentence, were the defendant to have violated
the terms of probation, he could have been subject to an
additional term of ten years' imprisonment, which the court
could have imposed consecutively to any prison sentence the
defendant was then serving.
                                                                  10


structural error, because the judge did not comply with the due

process requirements for resentencing.   Both sides agree that,

if the defendant was not resentenced at the 2008 hearing, the

motion judge could not permissibly have allowed the

Commonwealth's motion to "clarify the sentence" in 2015, after

the defendant had served both the committed portion of the

sentence and the eight-year term of probation.

    In considering whether the resentencing in 2015 was in

violation of the protections against double jeopardy, we turn

first to the sentencing judge's actions at the 2008 hearing on

the defendant's motion to vacate.

    Where there is a direct conflict between an oral

pronouncement of a sentence and the written judgment and

commitment, "the oral pronouncement, as correctly reported, must

control.   The only sentence that is legally cognizable is the

actual oral pronouncement in the presence of the defendant."

United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993),

quoting United States v. Munoz-Dela Rosa, 495 F.2d 253, 256 (9th

Cir. 1974).

    When the parties appeared before the sentencing judge in

July, 2008, on the defendant's pro se motion to vacate CPSL, the

Commonwealth did not move for resentencing, and did not provide

the defendant with notice of that possibility.   See Commonwealth

v. Cole, 468 Mass. 294, 311 (2014) ("resentencing need only
                                                                   11


occur where the Commonwealth moves for resentencing; in the

absence of such a motion, a judge would simply allow the

defendant’s motion to vacate the CPSL sentence and leave the

remainder of the sentence unchanged").   The pro se defendant was

not asked if he wanted counsel, nor if he waived his right to

counsel.   He also was not asked if he wished to introduce any

evidence in mitigation before any new sentence was pronounced.

    Nor was the defendant provided notice of any change in his

sentence other than the statement by the prosecutor, "we're just

adding the conditions now, in lieu of the lifetime community

parole, of stay away from the victim, the victim's family, and

any child under the age of [sixteen]"; the statement by the

clerk that "all conditions that are imposed on May [26, 2005,]

stand, except the lifetime community parole is revoked"; and the

response by the judge to the defendant's question, "So the

earlier parole --" that "Yes.   The parole is vacated."    After

stating that all previously imposed conditions stood except for

CPSL, the clerk restated the "special conditions" imposed at the

hearing, and then added, "plus the [c]ourt orders that you be --

you wear the GPS system, and the fee for the GPS system is

waived until you become gainfully employed."   If indeed the

judge meant by these rulings that the defendant's sentence had

been increased by a period of eight years of probation, these

statements were not calculated to inform the defendant of that
                                                                   12


order, particularly given that he previously had been subject to

GPS monitoring as one of the conditions of CPSL.

     On the other hand, it is clear from the transcript of the

hearing on the motion to vacate that the judge did not

immediately recall the sentence she had imposed in 2005, asking

the prosecutor, for instance, whether the committed sentence had

been for ten and one-half years.   When the prosecutor later

stated, "I would just note also for the record that I do see in

the docket sheet a condition that upon the defendant's release

he is also to submit to sex offender evaluation and any

treatment that is recommended as a result of that sex offender

evaluation," the judge stated, "For the record any condition

that was imposed at that time will remain."   Thus, it may well

be, as the defendant contends, that the judge did not appoint

counsel because she had no intention of restructuring the

sentence, something that the Commonwealth had not requested, and

did not in fact intend any change in the concurrent probationary

period.

     Moreover, at the hearing in December, 2015, on the

Commonwealth's November, 2015, motion to clarify the defendant's

sentence,6 the Commonwealth misinterpreted the sentencing judge's

statements at the plea colloquy in 2005.   The prosecutor argued


     6
       At that point, the defendant was scheduled to be released
from custody in January, 2016.
                                                                   13


that the sentencing judge plainly had intended that the

defendant be subject to ongoing treatment after release.   She

stated that the sentencing judge had imposed the probationary

condition of completion of sex offender treatment while the

defendant was incarcerated because of safety concerns that the

defendant would pose upon being released.

    The transcript of the 2005 plea colloquy makes clear,

however, that the sentencing judge ordered the defendant to

attend sex offender treatment as a condition of probation, to be

imposed while the defendant was incarcerated, at the

Commonwealth's urging.   The parties, the judge, and the session

clerk discussed in some detail how the sentence could be

structured such that the defendant would be required to, as the

Commonwealth requested, "submit to a [s]ex [o]ffender

[t]reatment [p]rogram while he is incarcerated" or, in the

judge's phrasing, "take advantage of sex offender treatment if

available in any place he's incarcerated" and "for whatever

length of time he's in [S]tate prison."   The judge explicitly

declined the defendant's counsel's suggestion that a requirement

of completion of the sex offender treatment program be imposed

as a condition of probation on one of the charges with a shorter

period of incarceration -- such as assault and battery -- rather

than sentencing the defendant to probation on the rape charge,

which carries a maximum sentence of life in prison, as a means
                                                                    14


of deterring a repeat offense.    The judge noted that the real

incentive to complete such a program, if an incarcerated

defendant chose to do so, was in an effort to avoid possible

future civil commitment as a sexually dangerous person.

    The Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights guarantee a

criminal defendant the right to counsel at all "critical" stages

of a criminal prosecution.   See Commonwealth v. Neary-French,

475 Mass. 167, 170-171 (2016), and cases cited.    It is well

established that sentencing is a critical stage at which there

is a right to counsel.   See Osborne v. Commonwealth, 378 Mass.

104, 114 (1979); Mass R. Crim. P. 28 (b), 378 Mass. 898 (1979).

"[T]he necessity for the aid of counsel in marshalling the

facts, introducing evidence of mitigating circumstances and in

general aiding and assisting the defendant to present his case

as to sentencing is apparent."    Osborne, supra, quoting Mempa v.

Rhay, 389 U.S. 128, 135 (1967).    A defendant who is deprived of

the assistance of counsel at sentencing has a right to have the

sentence vacated and to be resentenced after a hearing at which

the defendant and defense counsel are present.    See McConnell v.

Rhay, 393 U.S. 2, 3 (1968); Osborne, supra, at 114-115.

    The Commonwealth argues that the defendant did not have the

right to counsel at the July, 2008, hearing, because his motion

to vacate CPSL was a motion for postconviction relief.     See
                                                                  15


Parker v. Commonwealth, 448 Mass. 1021, 1023 (2007).   The

Commonwealth claimed also before the motion judge, as it does

before us, that in July, 2008, the sentencing judge

"restructured" the defendant's 2005 sentence, arguing, "it is

clear from the record that the intent of [the sentencing judge]

was to add the additional conditions of probation for the

defendant upon release from probation."

    The defendant maintains that, in July, 2008, the sentencing

judge did not resentence him to a consecutive term of probation

from and after his committed sentence.    The defendant argues, in

the alternative, that if the sentencing judge indeed resentenced

him to a consecutive term of probation of eight years from and

after his committed sentence, she did not provide him with

notice of the resentencing hearing or a meaningful opportunity

to be heard.

    While, in many postconviction proceedings, a judge has

discretion to decide whether to assign counsel to represent a

defendant, see Parker, 448 Mass. at 1023; Mass. R. Crim. P.

30 (c) (5), as appearing in 435 Mass. 1501 (2001), there is no

such discretion at a hearing on a motion for resentencing, where

a judge is required to appoint counsel to represent an indigent

defendant.   Further, whether acting pro se or through an

attorney, a defendant has a right to be present at sentencing

(or resentencing) and to present information in an effort to
                                                                  16


mitigate the sentence.   Green v. United States, 365 U.S. 301,

304 (1961).   Commonwealth v. Williamson, 462 Mass. 676, 685

(2012).   See Commonwealth v. Jones, 14 Mass. App. Ct. 991, 991

(1982), quoting Mass. R. Crim. P. 28 (b) (either defendant or

defendant's attorney must be allowed to be heard at sentencing).

Where a defendant is not afforded the right to be heard at

sentencing, the defendant is entitled to seek resentencing.

Commonwealth v. Whitford, 16 Mass. App. Ct. 448, 455 (1983),

citing Katz v. Commonwealth, 379 Mass. 305, 315-316 (1979).

    Similarly, although there is no per se requirement that a

judge or clerk announce all components of a defendant's sentence

in open court in order for the sentence to be effective, a

defendant must have notice of its terms at the time the sentence

is imposed.   See Williamson, 462 Mass. at 685; Commonwealth v.

Power, 420 Mass. 410, 421 (1995), cert. denied, 516 U.S. 1042

(1996).

         "'A criminal defendant has the right to be present at
    his own sentencing.' United States v. Vega–Ortiz, 425 F.3d
    20, 22 (1st Cir. 2005). Consistent with this right, the
    oral pronouncement of a sentence generally controls over
    the written expression where there exists a 'material
    conflict' between the two. United States v. Ortiz–Torres,
    449 F.3d 61, 74 (1st Cir. [2006]) . . . . However, 'no
    material conflict exists where the defendant is on notice
    that he is subject to the terms included in the written
    judgment.' Id."

Williamson, supra.   See Commonwealth v. MacDonald, 435 Mass.

1005, 1006 (2001).   Any ambiguity in the terms of probation will
                                                                   17


be construed in favor of the defendant.    Commonwealth v. Ruiz,

453 Mass. 474, 481-482 (2009).

    Here, at the hearing on the defendant's motion to vacate

CPSL, the judge ordered that "1) The original sentence on [May

26, 2005,] stands except the lifetime community parole was

vacated.   2) Additional special conditions of probation:    a) No

contact with the victim or her family[;] b) No contact with

children under sixteen years of age[;] c) GPS upon release on

probation[;] d) GPS fee is waived."

    We need not engage in the speculation that both parties

urge concerning the sentencing judge's intent when she allowed

the defendant's motion to vacate CPSL.    As the defendant

concedes, because his sentence had not been completed at that

point, the judge permissibly could have restructured it, albeit

not in such a way so as to increase the over-all scheme of

punishment.   See Sallop, 472 Mass. at 570-572.   Nothing in our

review of the transcripts indicates that the judge stated an

intention to impose an additional eight-year term of probation.

It is also clear that the unrepresented defendant was not

provided notice, and was not provided an opportunity to present

any evidence in mitigation.   If the judge intended to

restructure the defendant's sentence, and did so without counsel

present and without the defendant's waiver of counsel, that

would have been structural error requiring resentencing.     See
                                                                  18


Osborne, 378 Mass. at 114, quoting Mempa v. Rhay, 389 U.S. at

135; Commonwealth v. Brennick, 14 Mass. App. Ct. 952, 953

(1982), and cases cited.   At this stage, however, it would be

impossible to discern what the now-retired judge would have

intended had she not been under a misapprehension concerning the

terms of the sentence she previously had imposed.

    Moreover, the defendant had completed both his term of

probation and his term of incarceration well before the

Commonwealth's November, 2015, motion to "clarify" the

defendant's sentence.   Thus, any attempt in 2015 to require an

additional term of probation would have been in violation of the

prohibitions against double jeopardy.   "[T]he constitutional

guarantee against double jeopardy protects a defendant not only

against a second prosecution for the same offense after

acquittal or conviction but also against multiple punishments

for the same offense" (quotations and citation omitted).

Commonwealth v. Goodwin, 458 Mass. 11, 19 (2010).   For this

reason, a defendant cannot be resentenced for the same offense

after completion of the original sentence.   Id. at 19-20.

    In this case, because the defendant's sentence was not

restructured in July, 2008, whatever the judge's intent at that

hearing, the defendant's eight-year sentence of probation, which

began in May, 2005, terminated in 2013.   The defendant's ten-

year sentence of incarceration, also begun in May, 2005,
                                                                   19


terminated in 2014.7    Therefore, because all parts of the

defendant's sentence had been completed at the time of the

November, 2015, motion, at that point the sentence could not

have been modified in any way.    Id.

     3.   Conclusion.   The order allowing the Commonwealth's

motion to correct and clarify the sentence is vacated and set

aside.    The matter is remanded to the Superior Court for entry

of an order dismissing the motion as moot, on the ground that

the defendant's sentence had been completed before the motion

was filed.

                                     So ordered.




     7
       The defendant received credit for the time he was held in
pretrial detention, beginning in 2004.
