The background was as follows. The defendant pleaded guilty to several counts of rape of a child and was sentenced to a term of incarceration and a term of probation. “In open court, the clerk announced that the defendant’s sentence would be ‘subject to the terms and conditions of the probation department.’…. The clerk then announced … fifteen special conditions.” However, “[d]espite the provisions of G.L. c.265, §47, mandating that defendants 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,” the clerk did not announce that condition. “Similarly, neither the judge nor the parties had mentioned a GPS monitoring condition during the sentencing hearing or the plea colloquy…. Shortly after sentencing, the defendant signed a probation contract stating that he was required to ‘wear a GPS … device in accordance with … 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. 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 [c.265,] §47. The judge then resentenced the defendant to include GPS monitoring as a special condition of probation.”
In its decision, the SJC “conclude[d] that because the defendant … did not receive actual notice from the sentencing judge, at the time of sentencing [by oral pronouncement in open court], that GPS monitoring was included as a special condition of … 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), … the belated imposition of GPS monitoring must be vacated.” The Court stated that “[e]ven though [G.L. c.265,] §47[,] mandates GPS monitoring, the judge’s duty to announce that condition at sentencing is not obviated…. Where the judge fails to announce this condition despite the statutory mandate, the defendant’s sentence is illegal…. 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…. Where [as here] 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). [Commonwealthv. Selavka, 469 Mass. 502,] 511 [2014].”
If you or a loved one is facing a probationary sentence, or have already been sentenced to probation, it is of critical importance that you have an experienced attorney to determine whether the conditions imposed are lawful, and to make sure that you receive all of the protections you deserve under the law. Attorney Daniel Cappetta is a skilled attorney who will work with you to get the best possible outcome for your case. Call him for a free consultation today.