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SJC-12264
COMMONWEALTH vs. MICHAEL C. GRUNDMAN.
Barnstable. November 9, 2017. - March 22, 2018.
Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ.
Sex Offender. Global Positioning System Device. Practice,
Criminal, Sentence, Probation.
Indictments found and returned in the Superior Court
Department on October 19, 2012.
A motion to correct a clerical error in sentence, filed on
September 24, 2014, was heard by Gary A. Nickerson, J., and
motions for reconsideration were considered by him.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Andrew S. Crouch for the defendant.
Elizabeth M. Carey, Assistant District Attorney, for the
Commonwealth.
LOWY, J. The defendant pleaded guilty to two indictments
charging five counts of rape of a child and was sentenced to a
term of incarceration and a term of probation. Despite the
provisions of G. L. c. 265, § 47, mandating that defendants
2
convicted of certain sex offenses, including rape of a child, be
subject to global positioning system (GPS) monitoring as a
condition of any term of probation, that condition was not
announced in open court when the defendant's sentence was
imposed.1 At issue here is whether the judge erred in
resentencing the defendant to include the GPS monitoring
condition approximately ten months after the defendant was
originally sentenced. We conclude that because the defendant
here did not receive actual notice from the sentencing judge, at
the time of sentencing, that GPS monitoring was included as a
special condition of his probation, and because the resentencing
occurred after the sixty-day period in which an illegal sentence
may be corrected under Mass. R. Crim. P. 29 (a) (1), as
appearing in 474 Mass. 1503 (2016), the belated imposition of
GPS monitoring must be vacated. See Commonwealth v. Selavka,
469 Mass. 502, 513-514 (2014).
Background. Following a plea colloquy, the defendant
pleaded guilty to five counts of rape of a child, involving two
victims. The defendant's sentencing hearing occurred
approximately two months later, when a Superior Court judge
1 General Laws c. 265, § 47, states that any person who is
"placed on probation for any offense listed within the
definition of 'sex offense,' a 'sex offense involving a child'
or a 'sexually violent offense,' as defined in [G. L. c. 6,
§ 178C], shall, as a requirement of any term of probation, wear
a global positioning system device."
3
sentenced him to a term of two years in a house of correction
and a ten-year term of probation (with special conditions) to be
served concurrently with his term of incarceration. In open
court, the clerk announced that the defendant's sentence would
be " subject to the terms and conditions of the probation
department," with certain special conditions. The clerk then
announced approximately fifteen special conditions of the
defendant's probation including that he register as a sex
offender, complete sexual abuse perpetrator counselling, and
have no contact with the victims or their families. However,
the clerk did not articulate that GPS monitoring was a special
condition of the defendant's probation. Similarly, neither the
judge nor the parties had mentioned a GPS monitoring condition
during the sentencing hearing or the plea colloquy, and it was
not included in the Commonwealth's recommended sentence.
Shortly after sentencing, the defendant signed a probation
contract stating that he was required to "wear a GPS or
comparable device in accordance with G. L. c. 265, § 47." The
probation contract was signed by a Superior Court judge
different from the judge who sentenced the defendant. That
judge's signature was dated two days after the defendant's
sentencing hearing. The GPS monitoring condition was also
memorialized on the docket.
4
Approximately ten months after the defendant's sentence was
imposed, he filed a motion to remove the GPS monitoring
condition from the docket, claiming it had been erroneously
entered. Although the condition had not been announced at
sentencing, the judge determined that he could correct this
mistake because the defendant's guilty plea to the rape of a
child was subject to mandatory GPS monitoring as a condition of
probation under § 47. The judge then resentenced the defendant
to include GPS monitoring as a special condition of probation.
The defendant filed a motion for reconsideration, which the
judge denied, concluding that the defendant had actual notice of
the condition because he signed the probation contract
contemporaneously with the sentencing hearing, in addition to
the fact that GPS monitoring is statutorily mandated for the
crime of rape of a child.
The defendant again moved for reconsideration, this time
supported by an affidavit from his plea counsel stating that
counsel was unaware that § 47 mandated GPS monitoring in the
defendant's circumstances, and that he had not discussed GPS
monitoring as a probationary condition with the defendant.
Additionally, counsel was not present with the defendant when he
signed the probation contract, which likely occurred after the
sentencing hearing, while the defendant was in custody. The
judge denied this motion. The defendant appealed, and the
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Appeals Court affirmed the decision of the sentencing judge.
See Commonwealth v. Grundman, 90 Mass. App. Ct. 403, 404 (2016).
We granted the defendant's application for further appellate
review.
Discussion. The defendant acknowledges in his brief that
because he pleaded guilty to the rape of a child, § 47 required
that his probation include GPS monitoring. Nevertheless, the
defendant contends that because the judge failed to announce the
GPS monitoring condition, and the defendant did not have actual
notice of that condition at sentencing, the judge erred in
resentencing him to include the GPS monitoring condition after
his sentence became final. 2 We agree.
"A criminal defendant has the right to be present at his
own sentencing." Commonwealth v. Williamson, 462 Mass. 676,
685 (2012), quoting United States v. Vega-Ortiz, 425 F.3d 20, 22
(1st Cir. 2005). In accordance with this right, "the oral
pronouncement of a sentence [at the sentencing hearing]
generally controls over the written expression where there
exists a material conflict between the two" (quotation and
citation omitted). Williamson, supra. "However, no material
conflict exists where the defendant is on notice that he is
2 Given that clerks are authorized to announce a defendant's
sentence in court, in the presence of the sentencing judge, the
clerk's announcement of the defendant's sentence would
constitute actual notice of the terms that were announced.
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subject to the terms included in the written judgment"
(quotation and citation omitted). Id.
Because "the imposition of GPS monitoring is singularly
punitive in effect. . . . a defendant must receive actual notice
from the sentencing judge that his probation will be conditioned
on such a harsh requirement." Selavka, 469 Mass. at 505 n.5,
citing Commonwealth v. Cory, 454 Mass. 559, 568-569 (2009). See
Commonwealth v. Pacheco, 477 Mass. 206, 215 (2017) (sentence
invalid unless defendant receives notice of its terms when
sentence imposed). Actual notice of GPS monitoring at
sentencing is particularly important for a defendant who has
tendered a guilty plea because, at the sentencing hearing, the
defendant is still entitled to withdraw the guilty plea if the
judge decides to impose a sentence that exceeds the recommended
or agreed-on sentence. See Selavka, supra at 514-515 (defendant
may plead guilty to achieve measure of certainty in sentence);
Mass. R. Crim. P. 12 (c) (6) (B), as appearing in 470 Mass. 1501
(2015). Notice that the defendant's probation includes GPS
monitoring, at some point after the defendant's sentence has
been imposed and after he has lost the opportunity to withdraw
the plea, is insufficient. See Selavka, supra at 515.
Even though § 47 mandates GPS monitoring, the judge's duty
to announce that condition at sentencing is not obviated.
Selavka, 469 Mass. at 505 n.5 (unlike ordinary probationary
7
conditions, judge must articulate GPS monitoring). Where the
judge fails to announce this condition despite the statutory
mandate, the defendant's sentence is illegal "insofar as it did
not include GPS monitoring as a condition of the defendant's
probation." Id. at 503.3
This type of illegal sentence may be corrected under Mass.
R. Crim. P. 29 (a) (1) by resentencing the defendant to include
the GPS monitoring condition within sixty days from when the
sentence was imposed. See Selavka, 469 Mass. at 513-514. Where
the modification is "so punitive as to increase significantly the
severity of the original probation. . . . our common-law
principles of double jeopardy bar the imposition of what is
essentially a new, harsher sentence once the rule 29 period has
expired" (quotations and citation omitted). Id. at 511. For
that reason, "[e]ven an illegal sentence will become final for
the purposes of double jeopardy after the expiration of that
time period, and no longer will be subject to revision or
revocation within the terms of rule 29 (a)." Id. at 514.
Here, the record is devoid of evidence indicating that the
defendant had actual notice of the GPS monitoring condition of
3 The fact that the defendant's sentence was illegal because
it did not include global positioning system (GPS) monitoring as
a special condition of probation (as required by the statute)
does not affect the legitimacy of the special conditions of the
defendant's probation that were announced at sentencing or his
term of incarceration.
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probation when he was sentenced. Contrast Williamson, 462 Mass.
at 685-686 (ample notice at sentencing hearing that probation
included community parole supervision for life). GPS monitoring
was never discussed as a condition of probation during the plea
colloquy or announced in open court at the sentencing hearing.
When the defendant's sentence was announced, the statement that
his sentence was "subject to the terms and conditions of the
probation department, with the following special conditions,"
gave notice of the special conditions that were specifically
articulated in addition to the general conditions applicable to
all terms of probation. See Selavka, 469 Mass. at 505 n.5,
citing Rule 56 of the Rules of the Superior Court (2012).
Accordingly, the general statement that his sentence was
"subject to the terms and conditions of the probation
department" did not satisfy the requirement that GPS monitoring
be specifically articulated at sentencing. See id. The
Commonwealth's recommended sentence, which the judge accepted,
also did not include the GPS monitoring condition. Moreover,
the affidavit from the defendant's plea counsel stated that
counsel was unaware that GPS monitoring was a mandated condition
of probation under § 47 in these circumstances, and that he had
never discussed it with the defendant.
In addition, the sentencing judge's determination that the
defendant had actual notice of the GPS monitoring condition
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based on his contemporaneous signing of the probation contract,
which was recorded on the docket, is misplaced. To the extent
that the probation contract gave the defendant notice of the GPS
monitoring condition, that notice was given by the probation
department, not the trial judge, after the defendant's sentence
was imposed. Notice occurring shortly after the sentencing
hearing, standing alone, is inadequate to satisfy the
requirement that the defendant receive actual notice of the GPS
monitoring condition from the sentencing judge at the time his
sentence is imposed, where oral pronouncement of the sentence in
open court is required. See Selavka, 469 Mass. at 505 n.5;
Williamson, 462 Mass. at 685. Accordingly, the judge exceeded
his authority in imposing the GPS monitoring condition on the
defendant after the passage of the sixty-day deadline to correct
the sentence under rule 29 (a)(1). See Selavka, supra at 513-
514.
Conclusion. The denial of the defendant's motion is
reversed, and the matter is remanded to the Superior Court to
vacate the GPS monitoring condition of the defendant's probation
from the docket.
So ordered.