COMMONWEALTH v. JOSUE TORRES ALBERTO (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Boston Municipal Court, the defendant was convicted of one charge of violating an abuse prevention order issued pursuant to G. L. c. 209A, § 7 (209A order). He was acquitted of other charges, including one other charge of violating a 209A order. The defendant received ninety days of sentence credit based on the time he spent incarcerated while awaiting trial. He filed a motion to correct the mittimus, arguing for more sentence credit, which the judge denied. The defendant appeals that order and his conviction,¹ arguing that (1) his right against double jeopardy was violated, (2) the Commonwealth's presentation of the evidence created a risk that he was convicted of a crime for which he was not charged, and (3) fairness required the judge to credit more time towards his sentence. We affirm.

Background. The victim was dating the defendant for a few months, but the relationship deteriorated, and she ended it in the fall of 2022. In December 2022, after a series of events making her fear for the safety of herself and her children, a criminal complaint (first complaint) issued against the defendant. On December 30, 2022, the victim obtained a temporary 209A order against the defendant. The 209A order required the defendant not to contact or abuse the victim and was extended for one year on January 9, 2023, with the defendant present. At least once after the 209A order was extended, the defendant contacted the victim via text or voice message on social media.

In February 2023, another criminal complaint (second complaint) issued alleging that the defendant violated the 209A order on December 30, 2022. The Commonwealth later submitted a bill of particulars, clarifying that the 209A order violation charged in the second complaint involved text messages and Facebook messages the defendant sent the victim on January 29, 2023, and February 2, 2023, when he approached her at the courthouse (instead of December 30, 2022).

In July 2023, the complaint (third complaint) issued on which the defendant was later convicted. It charged the defendant with violating the 209A order on February 2, 2023. In a bill of particulars, the Commonwealth later clarified the date of offense to reflect a range from January 9, 2023, through February 2, 2023.

In August 2023, the three complaints were joined for trial. Before trial, the defendant moved to strike the bills of particulars on the grounds that that the offense dates in both differed from those in the second and third complaints. He emphasized that there was no 209A order in effect on December 30, 2022, the date of offense alleged in the second complaint. The judge allowed the defendant's motion to strike the bills of particulars, explaining to the parties that the dates of offense in the complaints would be read to the jury.²

After the Commonwealth rested, the defendant moved for a required finding of not guilty on the 209A violation charged in the second complaint, again arguing there was no evidence of a 209A order in effect on December 30, 2022, the date of offense alleged in the second complaint. The judge allowed the defendant's motion and dismissed the 209A order violation charge alleged in the second complaint, finding that the Commonwealth had not met its burden of proof. Before final instructions, the judge told the jury it would be deliberating on only one of the 209A violation charges. The judge did not specify which 209A violation charge had been dismissed, or require the jury to unanimously decide which alleged act constituted the remaining charge. The jury found the defendant guilty of violating the 209A order charged in the third complaint, which alleged a date of offense of February 2, 2023, and acquitted him of all remaining charges. The judge sentenced the defendant and credited him ninety days towards his sentence. The defendant filed a motion to correct the mittimus, which the judge denied, and the defendant appealed.

Discussion. On appeal, the defendant challenges his conviction and the amount of sentence credit he received. He argues that his right against double jeopardy was violated because at trial the Commonwealth did not link the evidence of alleged violations to a particular complaint, and the judge did not distinguish or require the jurors to agree on which act was a violation. He continues that the victim's imprecise testimony impermissibly broadened the possible bases for conviction beyond those charged in the third complaint, without providing the necessary guidance for the jury. Finally, he argues that the judge erred in denying his motion for sentence credit where fairness demanded more credit.

1. Double jeopardy. The Fifth Amendment, applied to the States through the Fourteenth Amendment to the United States Constitution, protects against “a second prosecution for the same offense after acquittal.” Commonwealth v. Taylor, 486 Mass. 469, 477 (2020). The defendant bears the burden of proving that retrial should have been barred by double jeopardy principles. Id. “The prohibition against double jeopardy is not implicated unless jeopardy attached in the first proceeding.” Id. at 479. Jeopardy attached here when the jury was empaneled and sworn. Id.

“An acquittal occurs where there is a ruling on the facts and merits” -- including “a ruling by the court that the evidence is insufficient to convict” -- and any other ruling relating “to the ultimate question of guilt or innocence” (quotations and citations omitted). Taylor, 486 Mass. at 481. Here, the judge entered a finding of not guilty on all three counts in the second complaint (charging the December 30, 2022, 209A order violation) on the ground that the Commonwealth had not proved each element beyond a reasonable doubt. This dismissal operated as an acquittal on those charges. See id. As such, the issue here is whether the defendant's acquittal on the offenses alleged in the second complaint is, given the Commonwealth's presentation of the case, effectively also an acquittal of the offense alleged in the third complaint. We conclude that it is not.

The defendant argues that because the Commonwealth distinguished his violations as two separate crimes based on the offense dates in the complaints, the evidence presented at trial should have been linked to each complaint. Because it was not, the defendant argues the jurors may have convicted him of a crime for which jeopardy had already terminated -- the dismissed 209A violation charge in the second complaint.³

“To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (1) a valid G. L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order.” Edge v. Commonwealth, 451 Mass. 74, 76 (2008). While there must have been a valid 209A order in effect on the date of the alleged violation, that date is not an element of the offense that the Commonwealth must prove beyond a reasonable doubt. See id.

In the second complaint, the defendant was charged with violating an abuse prevention order, offense date December 30, 2022. While the Commonwealth had submitted a bill of particulars reflecting an offense date after the order was extended, the judge struck this before trial and retained the original offense date. After the Commonwealth rested, the judge allowed the defendant's motion for a required finding of not guilty on the charges in the second complaint, including the 209A order violation, and dismissed the second complaint. The judge found the Commonwealth had not proven every element of the charge; as such, the defendant could not have violated a 209A order pertaining to this victim on December 30, 2022.

The defendant's argument on appeal fails for the same reason his motion for a required finding of not guilty succeeded: given the evidence presented, there was no risk that he was convicted of violating a 209A order on the operative date alleged in the second complaint. His dismissal argument succeeded because the Commonwealth had not produced evidence of a 209A order in effect on the date alleged in the second complaint, December 30, 2022. The defendant's trial proceeded, and he was convicted of the 209A order violation charged in the third complaint, which alleged an offense date of February 2, 2023. Now, he argues that our double jeopardy analysis should be governed not by the date of offense alleged in the third complaint (February 2, 2023), but by the date of offense alleged in its stricken bill of particulars (January 29, 2023).

The defendant claims that the judge's dismissal of the charges in the second complaint terminated jeopardy “for the January 29 violations of the 209A order” and that “[t]he Commonwealth's failure to sufficiently distinguish the separate and particular violations ․ [placed him] in additional jeopardy of being convicted of the January 29 violations in this case.” This argument fails. The defendant was neither charged with, nor acquitted of, any 209A order violation with an offense date of January 29, 2023. That date appeared only in a bill of particulars which the judge ordered stricken.⁴ The Commonwealth acknowledges that the victim did not testify to specific dates on which the defendant contacted her, but argues this is inconsequential because only one 209A order violation charge went to the jury. We agree and conclude the defendant's right against double jeopardy was not violated.⁵

2. Conviction for a crime not charged. The defendant's argument that the Commonwealth's presentation of evidence “resulted in a substantial risk that [he] was convicted of a crime, the alleged January 29 violations, for which he was not charged in this case” similarly fails. The date is not an element of the offense of violating an abuse prevention order under G. L. c. 209A, § 7, and the Commonwealth presented unambiguous evidence that the defendant contacted the victim after January 9, 2023, when he learned of the order at the extension hearing. Because the operative complaint for the jury's deliberations, the third complaint, charged an offense date of February 2, 2023, we cannot conclude that the defendant may have been convicted of a crime for which he was not charged in the complaint.

3. Sentence credit. The defendant challenges the denial of his motion to correct the mittimus.⁶ He argues that the judge erred in denying his motion where fairness demanded credit for 135 days of “dead time” he served while awaiting trial on all three joined cases, as they were related.

We review the denial of a motion to correct the mittimus for an abuse of discretion. See Commonwealth v. Pearson, 95 Mass. App. Ct. 724, 729 (2019). Pursuant to G. L. c. 279, § 33A, a judge imposing a sentence of incarceration shall order that the defendant “be deemed to have served a portion of said sentence,” equal to the number of days spent in confinement before sentencing and during trial. But “time spent in custody awaiting trial for one crime generally may not be credited against a sentence for an unrelated crime.” Commonwealth v. Milton, 427 Mass. 18, 24 (1998).

The defendant claims to have spent 225 days in custody awaiting trial in the three cases. He received ninety days of sentence credit based on time served in confinement awaiting trial on the third complaint, in which he was charged with the 209A order violation for which he was ultimately convicted. The defendant argues the judge erred in declining to award him credit for the other 135 days he spent in jail awaiting trial.

Because the cases charged in second and third complaints stemmed from the same course of criminal conduct as those alleged in the first complaint, and all three were joined, the defendant contends they were “related,” such that he was entitled to sentence credit for his pretrial confinement in all three cases. The Commonwealth responds that the 209A violations charged in the second and third complaints each stemmed from separate violations the defendant committed after the offenses charged in the first complaint, and we agree.

Here, the 209A order violation charges did not involve a single occurrence, but an ongoing course of the defendant's conduct. The victim testified that the defendant contacted her multiple times on social media after the 209A order was extended. Although the second complaint alleged an offense date of December 30, 2022, the acquittal on this charge was because the Commonwealth did not meet its burden of proof -- not because the charge was duplicative. Each contact by a defendant subject to a 209A order to the complainant may constitute a separate offense, if charged accordingly. See G. L. c. 209A, § 7. And the fact that the events leading to the charges in the first complaint prompted the victim to obtain the 209A order -- of which the second and third complaints alleged violations -- is not reason enough for us to conclude that the judge abused his discretion in refusing the defendant more credit. See Pearson, 95 Mass. App. Ct. at 728 n.8 (standard for joinder is distinct from jail credit analysis); Commonwealth v. Carter, 10 Mass. App. Ct. 618, 620 (1980) (defendant should be awarded credit exclusively for time spent in presentence confinement “which relates to the criminal episode for which the prisoner is sentenced”).

Finally, the defendant contends that fairness mandates additional sentence credit because to do otherwise would result in his having served “dead time.” See Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387, 396-397 (1997) (defining dead time as time served under invalid sentence for which no credit is given). In ordering a sentence of eighteen months in a house of correction with six months to be served, the balance suspended for two years, and ninety days of jail credit, the judge considered the time the defendant was held awaiting trial on all three complaints. See Commonwealth v. Amirault, 415 Mass. 112, 117 n.9 (1993). On this record, we discern no abuse of discretion.⁷

Judgment affirmed.

Order denying the defendant's motion to correct mittimus affirmed.

FOOTNOTES

1.   The defendant timely filed a motion for reconsideration of the motion for more sentence credit, but he did not file a notice of appeal from the denial of that motion. As such, the denial of the defendant's motion for reconsideration is not before us.

2.   The second complaint was not read to the jury because, as discussed, the judge allowed the defendant's motion for a required finding of not guilty on the charges alleged in that complaint.

3.   The defendant did not file a motion to dismiss based on double jeopardy during his trial and raises it for the first time on appeal. The Commonwealth argues that the defendant's double jeopardy claim is therefore waived. We disagree and consider the claim. See generally Commonwealth v. Adams, 485 Mass. 663, 668-670 (2020) (concluding that double jeopardy claims must be considered even if first raised after retrial and noting routine appellate review of claims from denial of motion to dismiss on double jeopardy grounds brought between mistrial and retrial).

4.   The Commonwealth appears to have attempted to elicit the victim's testimony about January 29, 2023, but she could not recall the precise dates of the defendant's messages -- only that they occurred after the January 2023 extension hearing.

5.   Moreover, the doctrine of judicial estoppel prevents a party “from improperly manipulating the machinery of the judicial system” by “adopt[ing] one position, secur[ing] a favorable decision, and then tak[ing] a contradictory position in search of legal advantage” (quotations and citation omitted). Taylor, 486 Mass. at 478. We will not tolerate such inconsistent posturing as the defendant's, an additional reason we affirm his conviction. See id.

6.   Because the denial of the defendant's motion for reconsideration is not before us, we look to the defendant's original motion for sentence credit.

7.   The defendant's motion to correct the mittimus was denied after a hearing; the defendant has failed to provide a transcript of the hearing.