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15-P-663                                               Appeals Court

                COMMONWEALTH   vs.   MICHAEL C. GRUNDMAN.


                               No. 15-P-663.

           Barnstable.     June 9, 2016. - October 5, 2016.

              Present:   Carhart, Maldonado, & Henry, JJ.


Sex Offender. Global Positioning System Device. Practice,
     Criminal, Probation, Sentence, Double jeopardy.



     Indictments found and returned in the Superior Court
Department on October 19, 2012.

     A motion to correct a clerical error in sentence, filed
September 24, 2014, was heard by Gary A. Nickerson, J., and
motions for reconsideration were considered by him.


     Andrew S. Crouch for the defendant.
     Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.


    HENRY, J.     The defendant pleaded guilty to five counts of

rape of a child involving two children, in violation of G. L.

c. 265, § 23.    He was sentenced to two years committed in a

house of correction, and a probationary term of ten years

commencing concurrently with the committed sentence.        The
                                                                       2


sentencing judge imposed conditions of probation, including

global positioning system (GPS) monitoring as mandated for this

offense by G. L. c. 265, § 47, on the sentencing checklist.       See

Commonwealth v. Guzman, 469 Mass. 492, 493 (2014) (Section 47

"affords a sentencing judge no discretion whether to impose GPS

monitoring on a defendant sentenced, as here, to a probationary

term for an enumerated offense").    The docket reflected this

sentence as well.    However, the clerk did not read that GPS

monitoring was a condition of probation aloud in open court.

The clerk did read every other condition of probation during the

oral sentencing, fifteen in total.    The written conditions of

probation signed by the defendant on the day of sentencing did

include the GPS monitoring as a term of probation.

    Nearly one year after the imposition of his sentence, the

defendant sought to "correct" what the defendant characterized

as a "clerical error" in his sentence, pursuant to Mass.R.Civ.P.

42, as amended, 423 Mass. 1406 (1996), to remove the GPS

monitoring condition.   The matter is especially significant to

the defendant because he aspires to become a commercial diver

and that career is not compatible with GPS monitoring.     After a

hearing, the defendant's motion was denied, and the judge noted

that the failure to orally impose GPS monitoring was an

inadvertent error.   The judge ordered the defendant to appear in

court for a correct reading of his sentence on the record.       The
                                                                     3


defendant filed two motions for reconsideration that also were

denied.

     On appeal, the defendant challenges the GPS monitoring on

grounds that the sentencing judge lacked authority to add the

GPS monitoring condition, its imposition violated double

jeopardy principles, and the defendant did not receive actual

notice of the GPS monitoring condition from the court.     We

affirm.

     Background.    Pursuant to a plea agreement on September 23,

2013, the defendant pleaded guilty to five counts of rape of a

child involving two children, in violation of G. L. c. 265,

§ 23.1    At the time of the offenses the defendant was twenty

years old and a lifeguard at a community pool.    The victims were

two fourteen year olds.    The Commonwealth and the defendant

agreed to a sentencing recommendation of two years committed in

a house of correction, followed by a probationary term of ten

years.2    During the plea colloquy there was no mention of GPS

monitoring as a condition of probation.



     1
       Prior to the defendant's plea colloquy, the Commonwealth
entered nolle prosequis for five counts of rape of a child, two
counts of dissemination of harmful matter to a minor, and two
counts of open and gross lewdness. On the day of the colloquy,
the Commonwealth entered nolle prosequis for two counts of rape
of a child and one count of witness intimidation.
     2
       There is conflicting material as to whether the sentence
was a joint recommendation or the Commonwealth's recommendation.
                                                                   4


    The sentencing hearing was held on November 25, 2013,

before the same judge.   No overt discussion of GPS monitoring

occurred at the sentencing.   In arguing in favor of the joint

recommendation, the Commonwealth contended that the long period

of probation would provide time for supervision.   Defense

counsel argued for a more lenient sentence than the joint

recommendation, suggesting that the defendant could be

sufficiently punished through his served term of incarceration,

followed by a:

    "probationary term of five years with special conditions
    and the typical special conditions, and a stay-away from
    the victims, both of them and their families; and that he
    stay away from Sandwich High School; that he engage in
    counseling, including sex offender counseling and treatment
    as deemed appropriate by the probation department. And
    also, that he remain employed or enrolled as a full-time
    student at a college or vocational educational program."3

Defense counsel acknowledged that the defendant was subjected to

GPS monitoring while he was on bail; and the defendant was aware

that he would be required to register as a sex offender for the




However, this determination is unnecessary as it does not affect
our review of the plea sentencing or the terms of probation.
    3
       Although defense counsel requested that the defendant's
sentence include "special conditions and the typical special
conditions," defense counsel informed the judge, during the
September 29, 2014, motion hearing that he was unaware of the
GPS requirement in § 47 and did not inform the defendant of this
condition prior to his sentencing. As such, the defendant's
sentencing recommendation could not serve as proper notice for
the imposition of this condition.
                                                                  5


rest of his life and, as such, would affect "[his] employment

possibilities."

     The judge sentenced the defendant to a two-year period of

incarceration4 and a ten-year term of probation, to run

concurrently with the committed portion of the sentence.5

Notwithstanding the requirements of G. L. c. 265, § 47, GPS

monitoring was not orally stated as part of the defendant's

sentence.   However, the sentence specifically articulated:

"[T]he [c]ourt places you on probation, ten years, said

probation to run concurrently with the sentences imposed in

[c]ount [one] of [indictment] 136-01 and [c]ount [one] of

[indictment] 136-02, subject to the terms and conditions of the

probation department, with the following special conditions"

(emphasis supplied).   The clerk then read the sentence and every

special condition of probation except the provision requiring

GPS monitoring.6


     4
       The defendant was sentenced on count one of indictment
2012-136-01, rape of a child; and on count one of indictment
2012-136-02, rape of a child; two years concurrently on each
count, to be served in a house of correction.
     5
       The defendant was sentenced to ten-year probationary terms
to run concurrently for count two of indictment 2012-136-01, and
counts two and three of indictment 2012-136-02.
     6
       Those conditions included orders directing the defendant
to: (1) enroll in sexual abuse perpetrator counseling; (2) have
no contact with the victims or their families and to stay away
from Sandwich High School and other schools; (3) abstain from
living with children who are not his own; (4) have no contact
                                                                   6


     On the day of the sentencing hearing, the defendant signed

the acknowledgment of his probation order, which delineated the

terms and conditions of his probation.7   This probation check-off

sheet stated, within the special conditions of probation

section, under the sex offender registration heading:

     "You shall register with the Sex Offender Registry Board
     and local police in accordance with G. L. c. 6, § 178E,
     shall wear a GPS or comparable device in accordance with
     G. L. c. 265, § 47, shall abide by the geographic exclusion
     zones established by the Commissioner of Probation, and
     shall pay the required fees unless waived by the [c]ourt"
     (emphasis supplied).




with minor children without the supervision of an appropriate
adult caretaker approved by the court or the probation
department; (5) not harass the victims or their families; (6)
not be employed where he could have regular contact with minor
children; (7) not perform any volunteer activities that place
him in contact with minor children; (8) reimburse the victims
for any out-of-pocket expenses resulting from his offense; (9)
abstain from using alcohol or any illicit drugs; (10) submit to
random breathalyzer tests and urine screens; (11) maintain full-
time employment, job training, or employment search activities
or education; (12) report to the probation department within
forty-eight hours of release; and (13) assessment of fees. The
defendant was notified of his obligations to (1) provide a
deoxyribonucleic acid (DNA) sample within one year; and (2)
register as a sex offender.
     7
       In signing his acknowledgment of the order of probation,
the defendant averred that:

     "I have read and understand the conditions of probation,
     and I agree to obey them. I understand that if I violate
     any of these conditions, I may be arrested or ordered to
     appear in court, the conditions of my probation may be
     changed, the term of my probation may be extended, my
     probation may be revoked, and I may be incarcerated. I
     have received a copy of this order."
                                                                   7


The GPS monitoring condition also was included in the docket

entry, dated November 25, 2013, which listed the defendant's

sentence.

     The defendant filed a motion to revise and revoke his

sentence, pursuant to Mass.R.Crim.P. 29(a), 378 Mass. 899

(1979), on January 23, 2014, offering additional mitigating

information regarding the defendant's mental health, but he

failed to raise the question of GPS monitoring.   The motion

judge, who was also the plea and sentencing judge, denied the

motion on March 11, 2014.8

     On September 24, 2014, the defendant moved to correct a

"clerical mistake," pursuant to Mass.R.Civ.P. 42, as amended,

423 Mass. 1406 (1996), asserting that the imposition of the GPS

monitoring condition of his probation was in error, as this

condition was not imposed orally during the defendant's

sentencing hearing.   The judge denied the defendant's motion on

September 26, 2014, and directed the defendant to appear in

court for "the corrected reading of the sentence on the record."

That same day, the defendant filed a motion for postconviction

relief.


     8
       The judge explained that "[t]he [c]ourt was well aware of
the nature and extent of the defendant[']s mental health issues
at the time of sentencing. The attached materials do not
warrant a change in sentence." The defendant did not appeal the
denial of this motion.
                                                                   8


     During the hearing on the defendant's motion for

postconviction relief, defense counsel stated that he did not

believe that G. L. c. 265, § 47, requires GPS monitoring as a

probation condition for the defendant's convictions and,

similarly, the defendant was not aware of the requirement, as it

was not expressly stated during the sentencing hearing.    Defense

counsel argued that the defendant should not be subject to GPS

monitoring because he had already served his committed sentence

and hoped to become a commercial diver after his term of parole.9

The judge explained that G. L. c.   265, § 47, mandates such

monitoring and ordered the defendant to be resentenced, to

include the GPS monitoring probation condition on the record.

Defense counsel did not object to the resentencing or the oral

pronouncement.10

     The defendant filed a motion for reconsideration, pursuant

to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001),

on October 28, 2014.   In support of this motion, the defendant

     9
       Counsel represented that the defendant would not be able
to work as a commercial diver if he were obligated to wear the
GPS monitoring equipment, because the water would render the
equipment inoperable.
     10
       The oral resentencing pronouncement inadvertently
sentenced the defendant to probation to run "from and after the
committed sentences," rather than concurrently, as originally
ordered by the judge. That mistake was a subject of the
defendant's motion for reconsideration filed on October 28,
2014, and was subsequently corrected in the January 20, 2015,
memorandum and order.
                                                                        9


offered an affidavit from his counsel at the sentencing hearing

confirming that he had not discussed GPS monitoring with the

defendant and that counsel "was not aware GPS monitoring would

be required as part of [the defendant's] probationary sentence."

The judge denied the defendant's motion on January 20, 2015,

with respect to the GPS monitoring condition, and denied the

defendant's second motion to reconsider on April 3, 2015.        This

appeal followed.

    Discussion.    "A criminal defendant has the right to be

present at his own sentencing."    Commonwealth v. Williamson, 462

Mass. 676, 685 (2012), quoting from United States v. Vega-Ortiz,

425 F.3d 20, 22 (1st Cir. 2005).    "Consistent with [the] right

[to be present at sentencing], the oral pronouncement of a

sentence generally controls over the written expression where

there exists a 'material conflict' between the two."     Ibid.,

quoting from United States v. Ortiz-Torres, 449 F.3d 61, 74 (1st

Cir.), cert. denied sub nom. Cosme-Piri v. United States, 549

U.S. 941 (2006), cert. denied sub nom. Torres-Santiago v. United

States, 549 U.S. 967 (2006), and cert. denied sub nom. Mattei-

Albizu v. United States, 549 U.S. 1313 (2007).     The Supreme

Judicial Court has addressed an error in sentencing such as the

one here in two recent cases:     Commonwealth v. Selavka, 469

Mass. 502 (2014), and Williamson, supra.
                                                                   10


     The defendant argues that Selavka controls.    There, as

here, the defendant's oral sentence was illegal for its failure

to include GPS monitoring as required by G. L. c.    265, § 47.

In that case, after the defendant had completed his committed

sentence, the Commonwealth filed a motion for GPS monitoring of

the defendant, which was allowed.    Selavka appealed.   See

Selavka, supra at 503.

     The Supreme Judicial Court, in reviewing the legality of

the addition of the GPS monitoring, recognized that the

Commonwealth and sentencing judge must have a mechanism to

correct an illegal sentence and set a time limit of sixty days

to act.11   See id. at 508.   Within that timeframe, "a sentence

remains conditional rather than final in nature."    Ibid.

Although a judge is empowered to correct an illegal or incorrect

sentence,12 "even an illegal sentence will, with the passage of


     11
       Under Mass.R.Crim.P. 29(a), supra, "[t]he trial judge
upon his own motion or the written motion of a defendant filed
within sixty days after the imposition of a sentence . . . may
upon such terms and conditions as he shall order, revise and
revoke such a sentence if it appears that justice may have not
have been done." In Selavka, the Supreme Judicial Court
provided an equal time for the Commonwealth to seek correction
of an illegal sentence, because under rule 29(a), "a sentence
remains conditional rather than final in nature," and will
"reasonably balance[] the defendant's interest in finality
against society's interest in law enforcement." Selavka, supra
at 508, quoting from Aldoupolis v. Commonwealth, 386 Mass. 260,
275 (1982).
     12
       See Selavka, supra at 505, quoting from Goetzendanner v.
Superintendent, Mass. Correctional Inst., Norfolk, 71 Mass. App.
                                                                      11


time, acquire a finality that bars further punitive charges

detrimental to the defendant."    Id. at 509.     Because the

sentence correction in Selavka occurred outside that sixty-day

period, the court considered and concluded that the belated

imposition of GPS monitoring violated the principle of finality

and constituted impermissible multiple punishment in violation

of double jeopardy protections.     See id. at 514.

    In reaching this conclusion, the court specifically

rejected the Commonwealth's argument that G. L. c. 265, § 47,

operates automatically.   The court specifically stated:

    "The GPS monitoring mandated by G. L. c. 265, section 47,
    is not like other conditions of probation that a sentencing
    judge need not always articulate. . . . Unlike those
    routine conditions, which include compliance with all laws
    and orders of the court, contact with the probation officer
    at his request, and reasonable efforts to obtain and
    maintain employment, the imposition of GPS monitoring is
    singularly punitive in effect. See Commonwealth v. Cory,
    454 Mass. 559, 568-569 (2009). For this reason, a
    defendant must receive actual notice from the sentencing
    judge that his probation will be conditioned on such a
    harsh requirement."

Id. at 505 n.5.

    The other relevant case is Williamson.        In that case, the

defendant was sentenced to one year of incarceration in open

court.   See Williamson, 462 Mass. at 679.      Thereafter, a

community parole supervision for life (CPSL) condition was

entered on the docket.    Ibid.   The defendant moved to vacate the


Ct. 533, 537 (1985) ("illegal sentence is one that is 'in some
way contrary to the applicable statute'").
                                                                     12


CPSL condition.   Ibid.   The motion judge, who was the same judge

who heard the defendant's plea, denied the motion under the

mistaken belief that the CPSL condition was mandatory.     Ibid.

The Supreme Judicial Court held that the CPSL condition was not

mandatory and remanded for resentencing.    Id. at 683-384.    The

court rejected the defendant's argument that CPSL could not be

added to his sentence, reasoning that although the sentencing

judge did not include CPSL in the oral sentence, the defendant

had prior notice of the condition, as CPSL was part of the joint

sentencing recommendation and both the Commonwealth and plea

counsel explicitly mentioned the imposition of CPSL.     Id. at

685-686.   Additionally, the defendant expressed his concern

about the cost of CPSL monitoring to the sentencing judge after

the imposition of his sentence.    Ibid.   "Accordingly, given the

circumstances, although [GPS monitoring] was not imposed in open

court, there exists no conflict that is material between the

sentence orally imposed and that memorialized on the docket."

Id. at 686.

    The factual scenario here falls between Williamson and

Selavka.   In all three cases, the condition of probation at

issue was not expressly stated by the judge or clerk during the

sentencing hearing.   In Williamson, both counsel discussed the

probation term at issue in front of the defendant during

sentencing, which did not happen in this case.     However, here
                                                                    13


the motion judge found that the defendant had actual notice of

the GPS monitoring condition because the oral pronouncement of

his sentence expressly stated that the defendant's probationary

term was "subject to the terms and conditions of the probation

department."   That same day as the sentencing, the defendant

signed his acknowledgment of the conditions of probation, which

included mandatory GPS monitoring within the terms and

conditions of the defendant's probation.    The defendant averred

that he read and understood the probation terms and that he

received a copy.    This fact sets the case apart from Selavka,

where the defendant's written probation order did not mention

GPS monitoring.    See Selavka, supra at 503-504.   Because we

agree that the defendant received notice that his sentence was

subject to the conditions of the probation department, and

through the written probation conditions that included

contemporaneous notice of GPS monitoring, we conclude that

"there exists no conflict that is material between the sentence

orally imposed and that memorialized in the docket" and the GPS

condition "was properly imposed in the first instance."

Williamson, supra at 686.    As a result, double jeopardy was not

violated.   Nor was the sixty-day limit to change a sentence

under rule 29(a) violated.13


     13
       To be sure, the best practice is to state the condition
of GPS monitoring explicitly during the reading of the sentence.
                                                                   14


     Significantly, the defendant did not object to the GPS

monitoring condition when he received and signed his terms of

probation, nor did he object to the condition during his

resentencing hearing.14   Moreover, the defendant filed a motion

to revise and revoke his plea within sixty days of his

sentencing hearing, but failed to challenge the imposition of

GPS monitoring at that time.

     Conclusion.   The order denying the defendant's motion to

correct clerical mistake is affirmed.   The orders denying

defendant's motions for reconsideration are affirmed.15

                                    So ordered.




See Selavka, supra at 505 n.5.
     14
       The addition of GPS monitoring does not violate Federal
law. See e.g., Thompson v. United States, 495 F.2d 1304, 1306
(1st Cir. 1974) ("a trial court not only can alter a
statutorily-invalid sentence in a way which might increase its
severity, but must do so when the statute so provides"); Ortiz-
Torres, 449 F.3d at 74 ("no material conflict exists where the
defendant is on notice that he is subject to the terms included
in the written judgment"). See also Bozza v. United States, 330
U.S. 160, 166, 167 (1947) ("sentence, as corrected, imposes a
valid punishment"). Also, "if the original sentence was
erroneous, the Constitution contains no general rule prohibiting
a court from finding that sentence erroneous and holding that a
sentence of greater length was required by law." Espinoza v.
Sabol, 558 F.3d 83, 87 (1st Cir. 2009).
     15
       In light of our disposition, we do not reach the
Commonwealth's argument that the defendant's motions seeking to
remove a probation condition was essentially a motion to
resentence and remove a condition, thereby opening the sentence
for restructuring.
