Massachusetts Appeals Court Upholds Dismissal of Probation Violation Against Child Rapist

The Massachusetts Appeals Court today upheld a superior court judge’s decision to dismiss a child rapist’s alleged probation violations, concluding the defendant’s probation had expired while he was involuntarily committed to the Massachusetts Treatment Center.  The name of the case is Commonwealth v. Pacheco

In 1997, the defendant pled guilty to three sex crimes against a child: indecent assault and battery on a child under the age of 14; child rape; and assault with intent to rape a child under the age of 14.  A superior court judge sentenced him to serve 6-9 years in state prison on the child rape conviction, with 10 years of probation (on the remaining charges) to begin at the conclusion of the prison sentence.  The defendant served his prison sentence and was scheduled to be released in 2005.  However, the Commonwealth moved to involuntarily commit the defendant to the Massachusetts Treatment Center.  If the Commonwealth can prove a defendant has been incarcerated for a sex crime and is a sexually dangerous person, he can be indefinitely committed to the Treatment Center, which is a locked facility that is the functional equivalent of a jail.  A sexually dangerous person is defined as somebody who suffers from a personality disorder or mental abnormality which makes him likely to commit further sex crimes if he is not locked up in a secure facility.  Every 12 months, the defendant may petition for release, and a trial will be held to determine whether he continues to pose a danger as a sexually dangerous person.  In this case, the defendant was committed to the Treatment Center in 2005 and was not released until a jury found him to be not sexually dangerous in 2015.

In 2017, the probation department claimed the defendant violated the terms of his probation by failing to report to his probation officer, failing to seek sex offender treatment, and failing to pay probation supervision fees.  The defendant argued he was no longer on probation, because his 10-year probationary period began in 2005 (when he was released from prison and committed to the Treatment Center) and had expired in 2015.  The Commonwealth argued his probation began when he was released from the Treatment Center and into the community (which would have started the clock in 2015).  The Appeals Court ultimately concluded the sentence imposed by the judge was unambiguous – the defendant’s probation was to begin “from and after the release of incarceration [for the child rape conviction].”  While the defendant continued to be locked up on the civil commitment after 2005, he was no longer incarcerated for the criminal offense.  Therefore, the defendant served his entire period of probation while he was committed to the Treatment Center and the probation department no longer had jurisdiction over him beginning in 2015.

The Commonwealth further argued the defendant should be precluded from arguing he was no longer on probation (as of 2015), because he had argued to the jury that decided he was no longer sexually dangerous that he would be on probation if he was released.  He took the opposite position in front of the jury that he took in the probation violation proceedings.  Although the Court expressed concern about the defendant’s inconsistent arguments, it held that the length of an already-imposed sentence could not be extended based on the defendant’s inaccurate argument in front of the jury.  Accordingly, the defendant is no longer on probation and will not be subject to punishment for alleged probation violations.