Commonwealth v. Selavka

469 Mass. 502

14 N.E.3d 933

COMMONWEALTH

v.Edgar L. SELAVKA.

SJC–11461.

Supreme Judicial Court of Massachusetts, Hampshire.

Submitted Feb. 4, 2014.

Decided Aug. 25, 2014.

Kathryn Hayne Barnwell, Boston (Bonnie G. Allen, Springfield, with her) for the defendant.

Steven Greenbaum, Assistant District Attorney, for the Commonwealth.

William C. Newman, Northampton, & Matthew R. Segal, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.¹

Opinion

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, 469 Mass. 492, 496, 14 N.E.3d 946 (2014), G.L. c. 265, § 47, 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 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.

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.

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, 883 N.E.2d 1250 (2008), quoting Commonwealth v. Layne, 21 Mass.App.Ct. 17, 19, 483 N.E.2d 827 (1985) (illegal sentence is one that is “in some way contrary to the applicable statute”). As we held in Commonwealth v. Guzman, supra at 496, 14 N.E.3d 946, 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 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 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 be altered. See Commonwealth v. Woodward, 427 Mass. 659, 685, 694 N.E.2d 1277 (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, 995 N.E.2d 1094 (2013) (judge amended sentence on grounds other than those requested by defendant in his rule 30 ...