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revision and are superseded by the advance sheets and bound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

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



       For example, the prohibitions on direct or indirect
       5

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 in-

court 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.
