Argued February 4, 2014
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 7, 2013.
The case was reported by Lenk, J.
Thomas E. Bocian, Assistant Attorney General ( Timothy J. Wyse, Assistant Attorney General, with him) for the Commonwealth.
Ryan M. Schiff, Committee for Public Counsel Services, for the defendant.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
[14 N.E.3d 948] Lenk, J.
In the case before us, a Superior Court judge declined to include global positioning system (GPS) monitoring as a condition of the probationary portion of the sentence she imposed
following the defendant's pleas of guilty to several offenses. One of those offenses was the dissemination of visual material depicting a child in a state of nudity or sexual conduct, one of the " sex offense[s] involving a child" enumerated in G. L. c. 265, § 47, that requires a defendant convicted of such an offense to be subject to GPS monitoring as a condition of any term of probation, during " the length of his probation for any such offense." We are called upon to decide whether the imposition of GPS monitoring in such circumstances is mandatory and, if so, whether such statutory mandate either constitutes an unreasonable search and seizure pursuant to the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, or violates substantive and procedural due process pursuant to the Fourteenth Amendment to the United States Constitution [14 N.E.3d 949] and arts. 1, 10, 11, and 12 of the Massachusetts Declaration of Rights.
It is plain that G. L. c. 265, § 47, affords a sentencing judge no discretion whether to impose GPS monitoring on a defendant sentenced, as here, to a probationary term for an enumerated offense. Although, given the inadequate record before us, we do not reach the defendant's Fourth Amendment claim, we conclude that G. L. c. 265, § 47, does not violate the defendant's right to due process. Because the statute applied to the defendant in the circumstances, and because there was no constitutional bar to its application, the failure to include GPS monitoring as a condition of the defendant's probation was error.
On August 15, 2011, a Suffolk County grand jury issued two indictments charging dissemination or possession
of obscene matter, G. L. c. 272, § 29; two indictments charging dissemination of visual material depicting a child in a state of nudity or sexual conduct, G. L. c. 272, § 29B, a predicate offense under G. L. c. 265, § 47; and one indictment charging purchase or possession of visual material depicting a child involved in sexual conduct, G. L. c. 272, § 29C. The defendant, who had no previous convictions of a sex offense, had acquired child pornography through LimeWire, an Internet-based file sharing system. The allegation that the defendant engaged in distribution stemmed from the fact that the defendant's use of LimeWire's default settings permitted other users to access his files.
In conjunction with a proposed plea agreement, the Commonwealth submitted a sentencing memorandum proposing that the defendant be sentenced to from four to five years in State prison followed by ten years of probation. After conducting two lobby conferences and reviewing an expert forensic evaluation of the materials found on the defendant's computer, the judge convened a plea and sentencing hearing on December 10, 2012. During the defendant's plea colloquy, the judge and both counsel discussed whether the defendant would be required to wear a GPS device as one of the conditions of his probation. A member of the court staff informed the judge that the imposition of GPS monitoring as a condition of probation was discretionary. The judge then sentenced the [14 N.E.3d 950] defendant to a one-year term of incarceration for his convictions under G. L. c. 272, ...