Heard: June 9, 2016.
found and returned in the Superior Court Department on
October 19, 2012.
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.
S. Crouch for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Present: Carhart, Maldonado, & Henry, JJ.
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.
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
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
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, §
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. During the plea colloquy there was no
mention of GPS monitoring as a condition of probation.
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
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]
judge sentenced the defendant to a two-year period of
incarceration and a ten-year term of probation, to run
concurrently with the committed portion of the
sentence.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 ...