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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
                                                                     5


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.
                                                                    6


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.
                                                                      8


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
                                                                   9


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.
