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Commonwealth v. Selavka

Supreme Judicial Court of Massachusetts, Hampshire

August 25, 2014

Commonwealth
v.
Edgar L. Selavka

Argued February 4, 2014

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 bye 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.

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

OPINION

[14 N.E.3d 936] 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.

Page 503

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 [14 N.E.3d 937] 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 492, 496 (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

Page 504

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.

[14 N.E.3d 938] 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 ...


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