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SJC-11753

                  COMMONWEALTH   vs.   GEORGE SALLOP.



       Middlesex.       March 5, 2015. - September 3, 2015.

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


Sex Offender. Community Parole Supervision for Life.
     Constitutional Law, Sentence, Sex offender, Double
     jeopardy. Practice, Criminal, Sentence, Double jeopardy.



     Indictments found and returned in the Superior Court
Department on November 9, 2000.

     A motion to vacate a condition of probation, filed on April
9, 2013, was considered by Diane M. Kottmyer, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Iris Alkalay for the defendant.
     Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.


    GANTS, C.J.     In this appeal, we consider whether a newly

restructured sentence imposed on a defendant after he has

successfully moved to vacate community parole supervision for
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life (CPSL) violates our double jeopardy doctrine.     We conclude

that, where a defendant sentenced to committed time on a

conviction is resentenced to a term of probation, the new

sentence violates double jeopardy where the defendant already

has completed the original sentence on that conviction before

the resentencing.   But where the defendant has yet to complete

the original sentence on a conviction, resentencing to a term of

probation does not violate double jeopardy, provided that the

total length of incarceration imposed on the defendant for that

conviction is not increased.     Consequently, if the defendant's

probation were to be revoked, the defendant may not be sentenced

to a term of incarceration longer than the time remaining on his

original uncompleted sentence.

    Background.     In 2002, the defendant, George Sallop, pleaded

guilty to two indictments charging rape of a child with force

(counts 1 and 2), one indictment charging assault and battery by

means of a dangerous weapon (count 3), one indictment charging

open and gross lewdness and lascivious behavior (count 4), and

two indictments charging assault and battery (counts 5 and 6).

He was sentenced to concurrent committed terms as follows: on

counts 1 and 2, from ten to fifteen years in the State prison;

on count 3, from nine to ten years in the State prison; on count

4, from two to three years in the State prison; and on counts 5

and 6, two and one-half years in the house of correction.     In
                                                                   3


addition, on count 1, the defendant was sentenced to CPSL to be

served from and after his release.

     After we held that the CPSL statute was unconstitutionally

vague as applied to first-time sex offenders, Commonwealth v.

Pagan, 445 Mass. 161, 162 (2005),1 the defendant moved to correct

his sentences.    In 2009, after the defendant had served

approximately eight years in prison,2 a different judge3 vacated

the sentence of CPSL on count 1.     The judge also restructured

the sentence by vacating the sentences of committed time on

counts 3 and 4 and replacing those sentences with two concurrent

terms of ten years of probation to run from and after the

completion of his sentences on counts 1 and 2, with global

positioning system (GPS) monitoring a condition of probation.

At the time of his resentencing, the defendant had fully served

his original sentence as to count 4 and had approximately two

years remaining to the end date of his original sentence as to

count 3.

     1
       We have since struck the community parole supervision for
life (CPSL) statute in its entirety because it "violates our
separation of powers doctrine, articulated in art. 30 of the
Massachusetts Declaration of Rights, by improperly delegating to
the parole board, an entity of the executive branch, the
exercise of the judicial power to impose sentences."
Commonwealth v. Cole, 468 Mass. 294, 295 (2014).
     2
       At the time of the original sentencing, Sallop received
313 days of jail credit.
     3
         The original sentencing judge had retired.
                                                                   4


     The defendant moved to vacate and correct the revised

sentence, arguing that the GPS condition was improper.    That

motion was denied.     The defendant again challenged the GPS

condition, this time in a motion to vacate conditions of

probation.   That motion was likewise denied.   A panel of the

Appeals Court affirmed the denial in a decision pursuant to its

rule 1:28.   See Commonwealth v. Sallop, 85 Mass. App. Ct. 1123

(2014).

     We granted the defendant's application for further

appellate review, limited to an issue briefly addressed by the

Appeals Court panel:     the "propriety of resentencing the

defendant by imposing a term of probation to run from and after

committed sentences that either had been fully served at the

time of the resentencing or will have been fully served before

the probationary term is due to begin."     Commonwealth v. Sallop,

469 Mass. 1110 (2014).4    Although this was not an issue addressed

in the order appealed from, we address it out of concern that an

injustice might otherwise arise in these circumstances from a

violation of double jeopardy.




     4
       As our limitation of the scope of further appellate review
suggests, we are not reexamining the imposition of the probation
condition of global positioning system (GPS) monitoring. The
order denying Sallop's motion to vacate that condition stands as
affirmed by the Appeals Court.
                                                                    5


     Discussion.   The resentencing judge was not obligated

merely to vacate the CPSL portion of the defendant's sentence,

but was permitted to restructure the over-all sentence to

provide a lengthy period of probation supervision in place of

the parole supervision that would have been provided with CPSL,

provided the sentence did not violate double jeopardy.   See

Commonwealth v. Cole, 468 Mass. 294, 310 (2014) ("The vacating

of CPSL sentences permits the possibility of resentencing,

except where barred by double jeopardy").   Under double jeopardy

principles, the new sentence on a conviction must not "increase

the 'aggregate punishment' imposed under the original sentence."

Id., quoting Commonwealth v. Cumming, 466 Mass. 467, 468 (2013).

In particular, double jeopardy principles bar resentencing on

any conviction for which the defendant has already fully served

his sentence.   See Commonwealth v. Parrillo, 468 Mass. 318, 321-

322 (2014), citing Cumming, supra at 473-474 (remanding with

instructions not to resentence defendant on convictions as to

which sentence had been fully served); Cole, supra at 311 (where

defendant already served original sentence, "any resentencing .

. . necessarily would violate principles of double jeopardy").5


     5
       The Commonwealth, relying on Commonwealth v. Leggett, 82
Mass. App. Ct. 730, 734-738 (2012), disputes this proposition,
arguing that so long as the aggregate sentence arising from the
sentencing scheme is not increased, a defendant has suffered no
violation of double jeopardy even if he is resentenced on a
conviction for which he has completed the original sentence.
                                                                    6


The defendant, as noted, had fully served his original sentence

as to count 4 when the resentencing judge vacated that sentence

and replaced it with a ten-year term of probation.   This

necessarily increased his sentence on that count, violating

double jeopardy principles.

    As to count 3, the defendant had not fully served his

original sentence at the time of resentencing; he had served

approximately eight years on a sentence of from nine to ten

years in prison.   Resentencing therefore did not necessarily

increase the defendant's punishment on this count.   The

resentencing judge, in her sound discretion, was permitted to

impose a new sentence for count 3, so long as this did not

otherwise violate double jeopardy principles.   See Parrillo, 468

Mass. at 321; Cumming, 466 Mass. at 470-474 (upholding, with

modification, imposition of ten years of probation in place of

committed terms where original sentences were not completed at

time of resentencing).   The practical effect of the resentencing

judge's decision as to count 3 was to replace the unserved

portion of the defendant's sentence -- approximately one to two

years in the State prison -- with ten years of probation.     The


However, as the Appeals Court more recently has recognized, "the
breadth of [Leggett's] holding" is no longer governing law after
Commonwealth v. Parrillo, 468 Mass. 318 (2014), Commonwealth v.
Cole, 468 Mass. 294 (2014), and Commonwealth v. Cumming, 466
Mass. 467 (2013), all issued after Leggett. Commonwealth v.
Scott, 86 Mass. App. Ct. 812, 814-815 (2015).
                                                                   7


resentencing judge was within her discretion to determine that

this was consistent with the original sentencing scheme and that

it did not increase the defendant's punishment as to count 3.

     However, in Cumming, we recognized that the replacement of

a CPSL sentence with a term of probation has the potential to

increase the aggregate punishment imposed on a defendant if the

defendant's probation were later revoked and the defendant were

sentenced to a period of incarceration on that conviction that

exceeds the time remaining on his original uncompleted sentence.6

See Cumming, 466 Mass. at 473-474.   We noted that, whereas the

statute prescribed certain limited periods of confinement for

violating a condition of CPSL, see G. L. c. 127, §§ 133D (c),

149, "a violation of the conditions of his probation might

subject the defendant to incarceration for the maximum . . .

sentence attributable to each of the underlying . . . offenses."

Cumming, supra at 473.   To avoid increasing the defendant's

punishment "in the peculiar circumstances of" Cumming, we ruled

that "the maximum period of incarceration to which the defendant

may be subject for violating a condition of his probation is the

period of time between the defendant's resentencing . . . and

the ten-year maximum period of confinement remaining under the

six- to ten-year sentences originally imposed on the indictments

     6
       In its brief, the Commonwealth invites us to revisit this
aspect of Cumming. We decline to do so.
                                                                   8


on which he was resentenced."   Id. at 474.   The same "peculiar

circumstances" are present in this case.   Accordingly, the

maximum period of incarceration to which the defendant may be

subject for violating a condition of his probation on count 3 is

the period of time between his resentencing on April 16, 2009,

and the ten-year maximum period remaining under the nine- to

ten-year sentence originally imposed on count 3.

    Conclusion.   The order denying the defendant's motion to

vacate the GPS condition of probation is affirmed for the

reasons stated by the Appeals Court in its decision.    The case

is remanded to the Superior Court for resentencing consistent

with this opinion.   The original sentence on count 4, which the

defendant has already fully served, shall be reinstated, and the

probationary sentence on count 3 shall be amended to make clear

that, if at any time during the probationary term the defendant

violates his probation and his probation is revoked, he may not

be sentenced to a term longer than the time remaining as of his

resentencing on April 16, 2009, until the end date of his nine-

to ten-year sentence originally imposed on count 3.

                                    So ordered.
