Court eliminates a probation requirement for rapist of girlfriend’s niece in 2004 case
A man convicted of raping, kidnapping and assaulting a 15-year-old girl in Cambridge in 2004 cannot be required to serve eight years of probation after his prison term, the Supreme Judicial Court ruled Tuesday. Prosecutors had sought to add the probation to Andres Pacheco’s sentence.
The court struck down a 2015 ruling by a lower court – after Pacheco’s term had ended – that imposed the additional requirement. The decision said its imposition after Pacheco had finished his sentence subjected him to double jeopardy: punishing him twice for the same crime.
It was not clear whether Pacheco is still in custody. A spokeswoman for the state Department of Correction said an inmate by that name was released in 2013 but she could not say definitely if it is the same person without the reporter providing his date of birth. Meghan Kelly, spokeswoman for Middlesex District Attorney Marian Ryan, said her office is prohibited by the state criminal records law from providing the information. An official in the records room at the Suffolk County House of Corrections said no one by that name was in the jail. Pacheco’s attorney, Rebecca Kiley, was asked Tuesday by email whether he is still imprisoned, and did not respond.
His status is unclear because Pacheco was on probation for an earlier conviction of assault with intent to rape “and related crimes” in Suffolk County when indicted in 2004 for the Cambridge rape, prosecutors said in their brief to the SJC. He was ordered to serve an additional four years in prison for violating his probation, to start after his prison term in the Cambridge rape case ended.
Pacheco pleaded guilty in May 2005 to assaulting the niece of his longtime girlfriend. According to Middlesex County prosecutors, the victim considered him her “godfather.” He accosted her in September 2004 as she was walking home from her aunt’s house in Cambridge, forced her into an apartment and violently raped her.
He was sentenced to 10 years in state prison and, unusually, was ordered to serve eight years of probation incarcerated. The sentencing judge structured the term that way to ensure he got sex offender treatment while in prison, according to court papers.
The judge also sentenced him to lifetime community parole after he got out of prison. But a few months after the judge imposed the sentence, the SJC ruled that first-time sex offenders could not be subjected to lifetime community parole.
It was after this event that Pacheco’s case began to travel a confusing path through the court system.
After the SJC decision, Pacheco filed an appeal in 2008 seeking to vacate his community parole sentence. The judge who had sentenced him agreed, but imposed additional conditions at the request of prosecutors, including that he stay away from the victim and her family, not have contact with anyone under 16 and wear a GPS monitor. According to court papers, the judge apparently did not remember that she had ordered Pacheco to serve his probation while incarcerated, and prosecutors did not remind her. Pacheco did not have a lawyer and needed an interpreter at the hearing.
In November 2015, after Pacheco’s 10-year prison term in the Cambridge rape had ended and he was presumably serving additional time for the probation violation in the Suffolk County case, Middlesex prosecutors filed a motion to “correct and clarify” the 2008 decision. They sought to make it clear that his eight-year probation term was to begin after he finished his term, not while he was in prison.
Another judge – the original Superior Court judge who sentenced him had retired – agreed, saying it was obvious from the 2008 ruling that the sentencing judge intended that he be on probation after his prison term ended.
The SJC vacated this decision on Monday and ordered that the Superior Court dismiss the motion as moot.