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SJC-11461

                COMMONWEALTH   vs.   EDGAR L. SELAVKA.



         Hampshire.     February 4, 2014. - August 25, 2014.

 Present:    Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
                             & Lenk, JJ.1


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


     Indictments found and returned in the Superior Court
Department on February 13, 2007.

     A motion to vacate a condition of probation, filed on
November 19, 2012, was heard by Mary-Lou Rup, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Kathryn Hayne Barnwell (Bonnie G. Allen with her) for the
defendant.
     Steven Greenbaum, Assistant District Attorney, for the
Commonwealth.
     William C. Newman & Matthew R. Segal, for American Civil
Liberties Union of Massachusetts, amicus curiae, submitted a
brief.



     1
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                    2


    LENK, J.   Fifteen months after child pornography was

discovered on his computer, the defendant pleaded guilty to

eleven counts of possessing child pornography in violation of

G. L. c. 272, § 29C.    In addition to a period of incarceration,

the defendant was sentenced to a term of probation.

Notwithstanding the provisions of G. L. c. 265, § 47, requiring

that defendants convicted of certain enumerated sex offenses,

including possession of child pornography, be subject to global

positioning system (GPS) monitoring as a condition of any term

of probation, such monitoring was not imposed as part of the

defendant's sentence.   Almost one year later, the Commonwealth

sought correction before the sentencing judge of what it termed

an illegal sentence by the addition of GPS monitoring as a

condition of the defendant's probation.    After a hearing, the

Commonwealth's motion was allowed and GPS monitoring was ordered

for the duration of the defendant's probationary period.

    The defendant now appeals from the denial of his subsequent

motion brought pursuant to Mass. R. Crim. P. 30 (a), as

appearing in 435 Mass. 1501 (2001) (rule 30[a]), to vacate the

addition of GPS monitoring to the conditions of his probation,

contending both that the judge lacked authority to modify his

sentence and that the delayed imposition of GPS monitoring

violated principles of double jeopardy.    As we determined in

Commonwealth v. Guzman, ante       (2014), G. L. c. 265, § 47,
                                                                        3


affords a sentencing judge no discretion as to the imposition of

GPS monitoring for probationers convicted of the specified

predicate offenses.     Accordingly, the defendant's initial

sentence was illegal insofar as it did not include GPS

monitoring as a condition of the defendant's probation.        In the

circumstances, however, the belated correction of that sentence

contravened the defendant's legitimate expectation of finality

in the terms of his initial sentence, and the imposition of GPS

monitoring on him cannot stand.

     1.   Background.    On April 22, 2008, the defendant, who was

then over fifty years old, pleaded guilty to eleven counts of

possession of child pornography, G. L. c. 272, § 29C.     Neither

during the plea colloquy that day nor at the subsequent

sentencing hearing on July 9, 2008, was any mention made of the

fact that G. L. c. 265, § 47, required the imposition of GPS

monitoring as a condition of any term of probation.     At the

sentencing hearing, the defendant was sentenced to two

concurrent terms of incarceration for two and one-half years,

each with one year to serve and the balance to be suspended

during a seven-year term of probation.     The judge accepted all

of the Commonwealth's recommended special conditions of

probation;2 GPS monitoring was not among them.    Moreover, the


     2
       The Commonwealth requested, and the judge ordered as
conditions of probation, that the defendant participate in sex
                                                                   4


defendant's probation contract did not mention GPS monitoring.

The defendant was released on parole on February 13, 2009.3

     On May 22, 2009, after the defendant had completed his

committed sentence and while he was serving his probationary

term, the Commonwealth filed a motion for GPS monitoring of

defendant, arguing that the sentencing judge had been required

to impose GPS monitoring as a condition of the defendant's

probation pursuant to G. L. c. 265, § 47.    After a hearing in

June, 2009, the judge allowed the motion over the defendant's

objection, but ordered that the defendant not be subject to any

geographic exclusion zones.4    On November 19, 2012, before a

different judge, the defendant moved pursuant to rule 30 (a) to

vacate the modified sentence.




offender treatment, continue taking his then-current
medications, participate in substance abuse treatment, and
attend Narcotics Anonymous. The judge also prohibited the
defendant from using the Internet, having unsupervised contact
with minor children, living with minor children, and obtaining
employment requiring unsupervised contact with minor children.
     3
       On September 8, 2008, the defendant filed a motion to
revise and revoke his sentence pursuant to Mass. R. Crim.
P. 29 (a), 378 Mass. 899 (1979) (rule 29 [a]); he sought a
reduction of the period of incarceration from one year to six
months. The sentencing judge denied the motion.
     4
       General Laws c. 265, § 47, provides that the Commissioner
of Probation (commissioner) may prohibit a defendant from
entering certain geographic areas throughout the term of his
probation, if applicable. Here, the commissioner did not
propose any exclusion zones.
                                                                    5


    While this motion was under advisement, the defendant

visited a movie theater during his probation and while wearing

the GPS device.   Upon leaving the theater, he received voicemail

messages from the Department of Probation, instructing him to

telephone the electronic monitoring company.    Although the

monitoring company told the defendant that he was "all set,"

police officers arrested him for purportedly violating the

conditions of his probation, and detained him for four days.

Seeking release, the defendant moved to dismiss the asserted

violation and to stay the execution of GPS monitoring.    The

motion judge dismissed the alleged violation without prejudice,

but declined to stay the imposition of GPS monitoring.

Subsequently, the judge denied the rule 30 (a) motion as well as

a motion to reconsider.

    2.   Discussion.   The defendant contends, first, that the

sentencing judge lacked authority to alter the terms of his

probation, and, second, that the belated imposition of GPS

monitoring as a condition of his probation violated the

principles of double jeopardy.   The Commonwealth maintains that

the defendant's initial sentence was illegal for its failure to

include GPS monitoring, and that the passage of time did not

prevent the judge from correcting that error.    The Commonwealth

further urges that the defendant had no legitimate expectation

of finality in his illegal sentence.
                                                                   6


     We begin by noting that the defendant's initial sentence

was, in fact, illegal for its failure to include GPS monitoring.

See Goetzendanner v. Superintendent, Mass. Correctional Inst.,

Norfolk, 71 Mass. App. Ct. 533, 537 (2008), quoting Commonwealth

v. Layne, 21 Mass. App. Ct. 17, 19 (1985) (illegal sentence is

one that is "in some way contrary to the applicable statute").

As we held in Commonwealth v. Guzman, supra at     , G. L.

c. 265, § 47, requires a sentencing judge to impose GPS

monitoring where a defendant has been convicted of an enumerated

offense and has been sentenced to a term of probation.    The

defendant here pleaded guilty to possession of child

pornography, a qualifying offense under G. L. c. 6, § 178C, and

was sentenced to a seven-year probationary term.   Pursuant to

G. L. c. 265, § 47, therefore, the defendant's initial sentence

was illegal insofar as it did not include GPS monitoring,5 and


     5
       The Commonwealth contends, separately, that the
defendant's initial sentence did, in fact, include global
positioning system (GPS) monitoring as a condition of probation.
Because G. L. c. 265, § 47, operates automatically, the
Commonwealth maintains, the sentencing judge need not
specifically have ordered such monitoring.

     We reject this interpretation. The GPS monitoring mandated
by G. L. c. 265, § 47, is not like other conditions of probation
that a sentencing judge need not always articulate. See Rule 56
of the Rules of the Superior Court (2012) (enumerating
conditions applicable to all terms of probation and stating that
"[a]ny other condition shall be presumed to be in addition to
the foregoing"). 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
                                                                    7


the subsequent imposition of GPS monitoring constituted a

revision of that illegal sentence.

    Given this premise, we consider whether the sentencing

judge had the authority to correct the defendant's illegal

sentence, then examine whether he was time barred from doing so

under the principles of double jeopardy.   We conclude that,

although the judge was empowered to correct the defendant's

sentence, he was not permitted to do so nearly one year after

the defendant received that sentence, where the defendant

already had served his entire period of incarceration and had a

legitimate expectation of finality in the sentence as initially

imposed.   We therefore vacate the order insofar as it imposes

GPS monitoring on the defendant as a condition of his probation.

    a.     Judge's authority to modify the defendant's sentence.

The defendant contends that the judge lacked authority to alter

his sentence in response to the Commonwealth's motion for GPS

monitoring.   Notably, the Commonwealth filed that motion without

making reference to any rule of criminal procedure that would



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. Cf.
Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 65-66 (2008);
Mass. R. Crim. P. 12 (c) (3) (B), as appearing in 442 Mass. 1511
(2004) (judge required to inform defendant, during plea
colloquy, of maximum possible sentence for his offense as well
as any mandatory minimum sentence).
                                                                   8


have permitted it to do so.   Neither Mass. R. Crim. P. 29 (a),

378 Mass. 899 (1979) (rule 29 [a]), nor rule 30 (a), the usual

mechanisms for altering the terms of a defendant's sentence,

have application in these circumstances.   The defendant urges

the view that, absent authorization under these or any other

rules of criminal procedure, the judge's modification of his

sentence by the addition of GPS monitoring as an additional

condition of probation was invalid.   We do not agree.

    The Massachusetts Rules of Criminal Procedure provide two

means by which a judge may alter the terms of a defendant's

sentence.   Under the caption, "Revision or Revocation of

Sentence," rule 29 (a) provides:

         "The 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 or revoke such
    sentence if it appears that justice may not have been
    done."

Rule 30 (a) concerns postconviction relief, and provides:

         "Any person who is imprisoned or whose liberty is
    restrained pursuant to a criminal conviction may at any
    time, as of right, file a written motion requesting the
    trial judge to release him or her or to correct the
    sentence then being served upon the ground that the
    confinement or restraint was imposed in violation of the
    Constitution or laws of the United States or of the
    Commonwealth of Massachusetts."

    It is plain that neither rule 29 (a) nor rule 30 (a)

expressly permits the Commonwealth to file a motion to correct

an illegal sentence or otherwise ask that a defendant's sentence
                                                                   9


be altered.   See Commonwealth v. Woodward, 427 Mass. 659, 685

(1998).   Indeed, "there is no rule of criminal procedure that

permits the Commonwealth to take such an appeal."6   Id.

     In this regard, although the defendant earlier had filed a

timely motion pursuant to rule 29 (a) seeking revision or

revocation of his sentence, see note 3, supra, the Commonwealth

did not urge the judge to take that opportunity to correct his

error of law, and the sixty-day period contemplated by that rule

had long since run when the judge did take such action.     Nor did

the defendant file a rule 30 (a) motion prior to the

Commonwealth filing its motion for GPS monitoring that would

have afforded the judge a similar opportunity.   Contrast

Commonwealth v. Cumming, 466 Mass. 467, 471 (2013) (judge

amended sentence on grounds other than those requested by

defendant in his rule 30 [a] motion; defendant had "knowingly

exposed himself to the possibility that his entire sentencing

scheme might be restructured").

     But it cannot be the case that a judge lacks the authority

to correct an illegal sentence simply because we have not

determined a mechanism by which the Commonwealth may prompt such

     6
       The Commonwealth did not petition the county court
pursuant to G. L. c. 211, § 3, to correct an illegal sentence.
Contrast Commonwealth v. Galvin, 466 Mass. 286, 289 (2013);
Commonwealth v. Goodwin, 458 Mass. 11, 14-15 (2010). It is in
any event far preferable that such matters be addressed in the
first instance by a judge of the trial court, particularly where
the sentencing judge is available.
                                                                   10


action.   "A sentencing judge has flexibility to respond

appropriately" where he discovers an error in the defendant's

initial sentence.   Dunbrack v. Commonwealth, 398 Mass. 502, 506

(1986).   Here, as noted, the failure of the judge to impose GPS

monitoring on the defendant as a condition of his probation

violated the terms of G. L. c. 265, § 47, and rendered the

resulting sentence unlawful.    See Commonwealth v. McGuinness,

421 Mass. 472, 475 (1995) (sentence unlawful where "premised on

a major misunderstanding of the sentencing judge as to the legal

bounds of his authority").     The Commonwealth must have some

recourse by which to prompt judicial action in these

circumstances, and a judge must have the ability to take

appropriate action to rectify the error.     See 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").

    We note that the Commonwealth occasionally has sought to

correct a purportedly illegal sentence by encouraging the

sentencing judge to exercise his or her authority under

rule 29 (a).   See, e.g., Commonwealth v. Galvin, 466 Mass. 286,

288 & n.7 (2013).   Cf. Commonwealth v. Sitko, 372 Mass. 305, 311

(1977), S.C., 379 Mass. 921 (1980) (Commonwealth sought, by

means of rule 29 [a], to increase defendant's sentence).
                                                                     11


Although nothing in the text of rule 29 (a) explicitly permits

such requests, it is appropriate that the Commonwealth be

permitted to contest an invalid sentence by means of essentially

the same mechanism for adjusting sentences that is available to

the defendant and the sentencing judge.     The sixty-day period

set forth in rule 29 (a) implicates certain of our common-law

protections against double jeopardy, discussed in greater detail

below.     Specifically, while subject to revocation and revision

within the time frame and under the terms of rule 29 (a), a

sentence remains conditional rather than final in nature.     This

"reasonably balances the defendant's interest in finality

against society's interest in law enforcement."     Aldoupolis v.

Commonwealth, 386 Mass. 260, 275 (1982), S.C., 390 Mass. 438

(1983) (Aldoupolis).     Requiring that the Commonwealth now adhere

to a uniform procedure further ensures that a defendant need

not, based on the ongoing possibility of heightened punishment,

"live in a constant state of anxiety and insecurity."     Id. at

274.

       For these reasons, we determine that rule 29 (a), with its

sixty-day time frame, is the proper vehicle by which the

Commonwealth may challenge illegal sentences,7 as here, and


       7
       As at present, the Commonwealth may not use rule 29 (a) as
a vehicle to contest a legal sentence with which it is
dissatisfied. When the Commonwealth proves that the sentence
challenged is illegal, however, correction of the sentence is
                                                                   12


request this court's standing advisory committee on the rules of

criminal procedure to propose an amendment to rule 29 (a)

reflecting this conclusion.

    b.   Double jeopardy and the defendant's legitimate

expectation of finality.    We turn now to the novel question

before us:    whether the belated correction of a defendant's

initial sentence, invalid for its failure to have imposed a

punitive probationary term required by statute, violates the

double jeopardy protection against multiple punishments for the

same crime.    The defendant maintains that the belated addition

of GPS monitoring to the conditions of his probation constituted

the impermissible imposition of a new and harsher sentence at a

time when his initial sentence, while invalid, had nevertheless

become final.    The Commonwealth, on the other hand, contends

that double jeopardy was not violated by the correction of an

illegal sentence nearly one year after that sentence first had

been imposed given that the initial sentence was not final by

virtue of illegality.    For the reasons we discuss, we conclude

that even an illegal sentence will, with the passage of time,

acquire a finality that bars further punitive changes

detrimental to the defendant.    Accordingly, in the circumstances

here, the delayed correction of the defendant's initial



mandatory and satisfies the rule's proviso that "justice may not
have been done."
                                                                  13


sentence, in which he by then had a legitimate expectation of

finality, violated double jeopardy and cannot stand.

     The guarantee against double jeopardy consists of three

independent protections.   "It protects against a second

prosecution for the same offense after acquittal.   It protects

against a second prosecution for the same offense after

conviction.   And it protects against multiple punishments for

the same offense."   Aldoupolis, supra at 271-272, quoting North

Carolina v. Pearce, 395 U.S. 711, 717 (1969).   These

proscriptions "represent[] a constitutional[8] policy of finality

for the defendant's benefit" in criminal proceedings,

Aldoupolis, supra at 274, quoting United States v. Jorn, 400

U.S. 470, 479 (1971) (plurality).   See Commonwealth v. Goodwin,

458 Mass. 11, 19 (2010) (Goodwin), quoting United States v.

Fogel, 829 F.2d 77, 88 (D.C. Cir. 1987) ("primary purpose of

[double jeopardy] is to protect the finality of judgments").

Since the defendant here was not twice prosecuted for the same

offense, we consider only whether he was subjected to multiple

punishments for the same crime.




     8
       The Massachusetts Declaration of Rights does not, in
contrast to the United States Constitution, contain a double
jeopardy clause, but we consider our common law to embrace the
same principles and protections. See Aldoupolis v.
Commonwealth, 386 Mass. 260, 271 n.14 (1982), S.C., 390 Mass.
438 (1983).
                                                                  14


     Despite the seemingly straightforward language of our

double jeopardy principles, the scope of the protection against

"multiple punishments for the same offense" is far from clear.9

We have, however, repeatedly defined "multiple punishments" as

those "in excess of what a Legislature intended to be the

punishment for a particular offense," Aldoupolis, supra at 272,

citing Albernaz v. United States, 450 U.S. 333, 344 (1981).      For

example, in Gallinaro v. Commonwealth, 362 Mass. 728, 729 n.2

(1973), two defendants were sentenced to a term of imprisonment

as well as required to pay a fine under a statute that permitted

only one or the other such penalty, not both.   These sentences

constituted multiple punishments, we concluded, because they

violated the Legislature's stated intent that a defendant

undergo but one of the two alternative statutory penalties.      Id.

at 732-733.   See Ex parte Lange, 18 Wall. 163, 175-176 (1873)

(judge prohibited from sentencing defendant to both fine and

imprisonment where statute permitted only fine or imprisonment).

Similarly, unless the Legislature has specifically authorized

cumulative punishments, we have long prohibited separately

penalizing a defendant for each of two convictions where one

     9
       Then Justice Rehnquist observed that "the decisional law
in the area is a veritable Sargasso Sea which could not fail to
challenge the most intrepid judicial navigator." Albernaz v.
United States, 450 U.S. 333, 343 (1981). See Marshall v.
Commonwealth, 463 Mass. 529, 534 (2012) (addressing "web of
jurisprudence" concerning double jeopardy principles in
Commonwealth).
                                                                   15


crime is a lesser included offense of the other.    See

Commonwealth v. Suero, 465 Mass. 215, 223 (2013); Morey v.

Commonwealth, 108 Mass. 433, 434 (1871).   See also Brown v.

Ohio, 432 U.S. 161, 169 (1977) ("the Fifth Amendment

forbids . . . cumulative punishment for a greater and lesser

included offense").

    The present case, however, does not resemble any of these

situations.   Given that the imposition of GPS monitoring on the

defendant was necessary to bring his initial sentence into

compliance with G. L. c. 265, § 47, it cannot be said, by virtue

of his corrected sentence, that the defendant endured a greater

penalty than the Legislature had envisioned for his particular

offense.   See United States v. DiFrancesco, 449 U.S. 117, 139

(1980) (no multiple punishment where defendants' increased

sentence remained within statutory boundaries).    Indeed, as

corrected, the defendant's sentence was exactly the sentence

that the Legislature mandated:   the use of a GPS device as a

mandatory condition of his probationary term.     See Bozza v.

United States, 330 U.S. 160, 165-167 (1947) (judge permitted to

correct initial sentence so as to include statutorily mandated

fine).

    It is precisely because an illegal sentence contravenes the

intention of the Legislature that the modification of an illegal

sentence, in itself, has not been seen as subjecting a defendant
                                                                  16


to multiple punishments.   To the contrary, "[t]he sentence, as

corrected, [merely] imposes a valid punishment for an offense

instead of an invalid punishment for that offense."   Id. at 166-

167 & n.2 (double jeopardy not implicated where judge, five

hours after initial imposition of sentence, corrected erroneous

omission from sentence).   Even where a corrected sentence is

harsher than its previous iteration, a defendant is not punished

twice where the sentencing judge "only set[s] aside what [he or

she] had no authority to do, and substitute[s] directions

required by the law to be done upon the conviction of the

offender."   Id., quoting In re Bonner, 151 U.S. 242, 260 (1894).

See generally Commonwealth v. Cowan, 422 Mass. 546 (1996) (no

discussion of double jeopardy where judge corrected sentence to

incorporate statutory minimum requirement, subjecting defendant

to harsher penalty).

    This principle, however, does not resolve the case before

us, which involves not merely the correction of an illegal

sentence, but the long-delayed correction of such a sentence.

Although it has been said that the rectification of an illegal

sentence does not implicate the notion of multiple punishment

since such a sentence is void and must be set aside, cases to

that effect have not addressed whether substantial delay may

render even an illegal sentence final for the purposes of double

jeopardy analysis.   See, e.g., Bozza v. United States, supra at
                                                                     17


166 ("five-hour interim" between initial sentence and subsequent

correction); Commonwealth v. Cowan, supra at 549-550 (no

discussion of double jeopardy where judge's correction of

illegal sentence occurred within sixty-day period of

rule 29 [a]).

    We have held, outside the context of illegal sentences,

that the addition of a sufficiently punitive term to a

defendant's initial sentence may constitute multiple punishment

if the revision adding a new and harsher penalty occurs after

that sentence becomes final.     In Goodwin, supra at 11-12, we

considered whether a judge permissibly could modify the

conditions of a defendant's probation by the addition of GPS

monitoring.     Ordinarily, reasonable additions to the conditions

of a defendant's probation do not constitute the revision or

revocation of a sentence under rule 29 (a).     Id. at 16, citing

Buckley v. Quincy Div. of the Dist. Court Dep't, 395 Mass. 815,

818-819 (1985).    However, as we noted in Goodwin, supra at 19,

certain modifications are "so punitive as to increase

significantly the severity of the original probation," and, by

virtue of their harshness, amount to sentence revisions within

the meaning of rule 29 (a).     Where such punitive amendments are

at issue, we concluded, 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.     Goodwin,
                                                                    18


supra.   Because the defendant's initial sentence had become

final upon the expiration of the rule 29 (a) deadline, the

addition of GPS monitoring -- a "serious, affirmative restraint"

on a defendant's liberty -- as a condition of probation would

constitute multiple punishment.     Id. at 22-23, quoting

Commonwealth v. Cory, 454 Mass. 559, 570 (2009).

    Similarly, in Commonwealth v. Bruzzese, 437 Mass. 606, 613

(2002) (Bruzzese), a judge had sentenced a defendant to four

concurrent sentences, each consisting of two and one-half years

of incarceration.    After the defendant had served those two and

one-half years on the first three convictions, the judge revoked

his probation as to the fourth, and ordered that he remain

incarcerated for an additional year.     Id. at 614.   We barred

this revision, which subjected the defendant to greater

punishment than the initial sentencing scheme had contemplated,

as an impermissible multiple punishment in violation of double

jeopardy.   Id.   The entire concurrent sentencing scheme was

subject to the terms of rule 29 (a), we noted, and "could not be

changed" once the sixty-day deadline set forth by that rule had

expired.    Id.   Cf. Commonwealth v. Woodward, 427 Mass. 659, 685-

686, 690 (1998) (affirming denial of Commonwealth's

postconviction request to vacate and remand lawful sentence for

possible increase where defendant's expectation of finality in
                                                                  19


initial sentence would render new, harsher sentence

impermissible multiple punishment).

     The circumstances of Goodwin and Bruzzese are, plainly,

distinct in certain respects from those in the present case.

Here, the modification requested was mandatory rather than

discretionary in nature insofar as it was to remedy the

erroneous sentence initially imposed.    Goodwin and Bruzzese, on

the other hand, both involved discretionary modifications to a

defendant's sentence.   See Goodwin, supra at 18 n.9 ("We address

here only discretionary modifications of probation").     Moreover,

whereas the defendant's initial sentence here was invalid for

its noncompliance with G. L. c. 265, § 47, the sentences at

issue in Goodwin and Bruzzese complied with all relevant

statutes, both initially and as modified.

     These factual differences notwithstanding, however, we have

never indicated that the principles of finality on which Goodwin

and Bruzzese relied are inapplicable where illegal sentences are

concerned, or that an illegal sentence may never become final

for the purposes of double jeopardy.    Far from holding that the

Commonwealth may correct an illegal sentence at any time without

regard for a defendant's expectation of finality,10 we have said


     10
       Although a judge may correct, at any time, clerical
errors and other technical flaws in a defendant's sentence, see
Mass. R. Crim. P. 42, 378 Mass. 919 (1979) ("[C]lerical
mistakes . . . may be corrected by the court at any time of its
                                                                    20


that a sentencing judge may correct a defendant's illegal

sentence only when the error "is discovered in a timely manner."

Dunbrack v. Commonwealth, 398 Mass. 502, 506 (1986);

Commonwealth v. Weymouth, 2 Allen 144, 145 (1861) (court may

correct defendant's sentence within same term that it initially

issued).   Cf. Commonwealth v. O'Brien, 175 Mass. 37, 39-40

(1899) (judge may "correct any illegality or error in a

sentence, provided it then remains wholly unexecuted").     To be

sure, a defendant's legitimate expectation of finality may well

be diminished when his sentence is illegal.   See Commonwealth v.

Woodward, supra at 687.   But, by the same token, that principle

does not afford carte blanche to correct erroneous sentences at

any point subsequent to their initial imposition.   See Breest v.

Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978) ("the power of a

sentencing court to correct even a statutorily invalid sentence

must be subject to some temporal limit").

    The rationale underlying both Goodwin and Bruzzese thus

applies with substantial force to the facts before us.    Where a

defendant's expectation of finality in his initial sentence has

"crystallized" after enough time, United States v. Lundien, 769

F.2d 981, 987 (4th Cir. 1985), cert. denied, 474 U.S. 1064

(1986), the invalidity of that sentence does not render its


own initiative . . ."), and Commonwealth v. Miranda, 415 Mass.
1, 5 (1993), "errors of substance" that "trample the defendant's
rightful expectations" are not considered clerical. See id.
                                                                   21


subsequent correction by way of increased penalties immune to a

double jeopardy challenge.    Such an approach would undermine the

notion of finality, which animates our common-law protections

against double jeopardy and prevents the Commonwealth from

"shatter[ing] the defendant's repose and threaten[ing] him with

grievous harm."   Double Jeopardy, 91 Harv. L. Rev. 101, 102

(1977).   Even where a defendant's original sentence, as here,

unquestionably is erroneous, his "interest in repose" remains,

and may suffice to prohibit the addition of even those punitive

terms necessary to bring the sentence into compliance with a

relevant statute (citation omitted).    See Aldoupolis, supra at

272.

       In the future, as discussed, the Commonwealth will be

obliged to discern and seek to correct sentencing errors within

the sixty-day time period of rule 29 (a).    Even 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).   Here, as was the case in Goodwin, supra, and

Bruzzese, supra, the sixty-day period set forth in rule 29 (a)

had long since expired when the Commonwealth requested the

defendant's initial sentence be amended.    We acknowledge that,

at the time GPS monitoring was imposed on the defendant, we had

not yet concluded that rule 29 (a) provided the relevant
                                                                   22


deadline for the correction of illegal sentences.     Nevertheless,

in the circumstances, we conclude that the belated imposition of

GPS monitoring on the defendant violated the principle of

finality and constituted an impermissible multiple punishment.

    A defendant's expectation of finality in his sentence

increases once he has begun to serve that sentence.      See Fine v.

Commonwealth, 312 Mass. 252, 256 (1942); Commonwealth v.

Weymouth, supra at 147.   Prior to the Commonwealth's request

that GPS monitoring be imposed, the defendant had served

approximately seven months of incarceration before being

released on parole and, having completed his committed sentence,

had begun serving his seven-year term of probation.      During that

time, the defendant had every reason to believe that his

sentence would remain fixed; he could not have anticipated that

the judge might revisit his initial sentencing decision and

"impose[] new burdens" on him.   Goodwin, supra at 19.     Contrast

Commonwealth v. Cumming, 466 Mass. 467, 471 (2013) (defendant

who filed rule 30 [a] motion to alter sentence diminished any

expectation of finality he previously had in that sentence);

United States v. DiFrancesco, 449 U.S. 117, 139 (1980) (judge

permitted to increase defendant's initial sentence; defendant

lacked expectation of finality in that sentence where statute

provided that sentence was subject to appeal).
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    Moreover, the defendant was given no opportunity to

withdraw his guilty plea upon the addition of GPS monitoring to

the conditions of his probation, see Mass. R. Crim.

P. 12 (c) (2), as appearing in 442 Mass. 1511 (2004), even

though this revision did not "conform to [his] legitimate

sentence expectation."   Goodwin, supra at 21, quoting Reporters'

Notes (Revised, 2004) to Rule 12, Mass. Ann. Laws Court Rules,

Rules of Criminal Procedure, at 1429 (LexisNexis 2008-2009).

Defendants who tender such pleas on the prosecutor's

recommendation do so to achieve a measure of certainty in their

sentences.   "It would be unfair and contrary to the spirit of

rule 12 (c) (2) for a judge to accept a plea bargain and impose

the recommended sentence, and then, after the defendant has lost

the opportunity to withdraw his plea, increase the sentence by

adding a new or modified probationary condition so severe as to

significantly increase the recommended sentence."     Goodwin,

supra.

    In these circumstances, therefore, the imposition of GPS

monitoring on the defendant was not timely enough to protect his

interest in the finality of his initial punishment.    The judge

did not require the defendant to wear a GPS device until nearly

one year after he first received his sentence.   As discussed, by

then the defendant had served his entire term of incarceration

and had been given no notice that the conditions of his
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probation might change.   Disrupting, at such a late date, the

defendant's reasonable expectation of finality as to the

conditions of his probation would engender precisely the

"anxiety and insecurity" that our principles of double jeopardy

guard against.   Aldoupolis, supra at 274.

    3.   Conclusion.   Nearly one year after the defendant

received his initial sentence, the judge allowed the

Commonwealth's motion to impose GPS monitoring as an additional

condition of the defendant's probation.   The defendant filed a

rule 30 (a) motion seeking to vacate this addition to his

initial sentence, and appealed from the denial of that motion.

For the reasons discussed, the order imposing GPS monitoring on

the defendant was impermissible and is therefore vacated.    All

other terms and conditions of the defendant's sentence were

unaffected by the defendant's motion, and remain valid and

unchanged.

                                   So ordered.
