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Commonwealth v. Grundman

Appeals Court of Massachusetts, Barnstable

October 5, 2016

COMMONWEALTH
v.
MICHAEL C. GRUNDMAN.

          Heard: June 9, 2016.

         Indictments found and returned in the Superior Court Department on October 19, 2012.

         A motion to correct a clerical error in sentence, filed September 24, 2014, was heard by Gary A. Nickerson, J., and motions for reconsideration were considered by him.

          Andrew S. Crouch for the defendant.

          Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

          Present: Carhart, Maldonado, & Henry, JJ.

          HENRY, J.

         The defendant pleaded guilty to five counts of rape of a child involving two children, in violation of G. L. c. 265, § 23. He was sentenced to two years committed in a house of correction, and a probationary term of ten years commencing concurrently with the committed sentence. The sentencing judge imposed conditions of probation, including global positioning system (GPS) monitoring as mandated for this offense by G. L. c. 265, § 47, on the sentencing checklist. See Commonwealth v. Guzman, 469 Mass. 492, 493 (2014) (Section 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"). The docket reflected this sentence as well. However, the clerk did not read that GPS monitoring was a condition of probation aloud in open court. The clerk did read every other condition of probation during the oral sentencing, fifteen in total. The written conditions of probation signed by the defendant on the day of sentencing did include the GPS monitoring as a term of probation.

         Nearly one year after the imposition of his sentence, the defendant sought to "correct" what the defendant characterized as a "clerical error" in his sentence, pursuant to Mass.R.Civ.P. 42, as amended, 423 Mass. 1406 (1996), to remove the GPS monitoring condition. The matter is especially significant to the defendant because he aspires to become a commercial diver and that career is not compatible with GPS monitoring. After a hearing, the defendant's motion was denied, and the judge noted that the failure to orally impose GPS monitoring was an inadvertent error. The judge ordered the defendant to appear in court for a correct reading of his sentence on the record. The defendant filed two motions for reconsideration that also were denied.

         On appeal, the defendant challenges the GPS monitoring on grounds that the sentencing judge lacked authority to add the GPS monitoring condition, its imposition violated double jeopardy principles, and the defendant did not receive actual notice of the GPS monitoring condition from the court. We affirm.

         Background.

         Pursuant to a plea agreement on September 23, 2013, the defendant pleaded guilty to five counts of rape of a child involving two children, in violation of G. L. c. 265, § 23.[1] At the time of the offenses the defendant was twenty years old and a lifeguard at a community pool. The victims were two fourteen year olds. The Commonwealth and the defendant agreed to a sentencing recommendation of two years committed in a house of correction, followed by a probationary term of ten years.[2] During the plea colloquy there was no mention of GPS monitoring as a condition of probation.

         The sentencing hearing was held on November 25, 2013, before the same judge. No overt discussion of GPS monitoring occurred at the sentencing. In arguing in favor of the joint recommendation, the Commonwealth contended that the long period of probation would provide time for supervision. Defense counsel argued for a more lenient sentence than the joint recommendation, suggesting that the defendant could be sufficiently punished through his served term of incarceration, followed by a:

"probationary term of five years with special conditions and the typical special conditions, and a stay-away from the victims, both of them and their families; and that he stay away from Sandwich High School; that he engage in counseling, including sex offender counseling and treatment as deemed appropriate by the probation department. And also, that he remain employed or enrolled as a full-time student at a college or vocational educational program."[3]

         Defense counsel acknowledged that the defendant was subjected to GPS monitoring while he was on bail; and the defendant was aware that he would be required to register as a sex offender for the rest of his life and, as such, would affect "[his] employment possibilities."

         The judge sentenced the defendant to a two-year period of incarceration[4] and a ten-year term of probation, to run concurrently with the committed portion of the sentence.[5]Notwithstanding the requirements of G. L. c. 265, § 47, GPS monitoring was not orally stated as part of the defendant's sentence. However, the sentence specifically articulated: "[T]he [c]ourt places you on probation, ten years, said probation to run concurrently with the sentences imposed in [c]ount [one] of [indictment] 136-01 and [c]ount [one] of [indictment] 136-02, subject to the terms and conditions of the probation department, with the following ...


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