Case Summary

Massachusetts Supreme Judicial Court Declares GPS Monitoring Strictly Illegal if Not Announced in Open Court At the Sentencing Hearing

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Case Summary for Commonwealth v. Grundman, ____Mass.___(March 22, 2018), SJC Docket No. 12264. 12264

SUMMARY: After the defendant pled guilty to multiple counts of child rape, he was sentenced to both incarceration and probation, but it was not announced at the sentencing hearing that he would have GPS (global positioning satellite) monitoring as part of his probation. Despite that, probation subjected him to GPS monitoring, and when the defendant moved to have the GPS removed ten months later as illegal, the court resentenced him to probation with GPS monitoring. On appeal, the SJC found that the GPS monitoring was illegal because it was not announced in open court at the original sentencing hearing, and that the resentencing was illegal as well; it ordered reversal and for the trial court to remove the GPS monitoring.

DECISION,JUDGES, WRITER: Unanimous 4-0 (quorum),  by Chief Justice Ralph D. Gants; Justice Frank M. Gaziano; Justice David A. Lowy; and Justice Kimberly S. Budd. Opinion written by Justice Lowy.

CONCLUSION: “We conclude that because the defendant here did not receive actual notice from the sentencing judge, at the time of sentencing, that GPS monitoring was included as a special condition of his 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), as appearing in 474 Mass. 1503 (2016), the belated imposition of GPS monitoring must be vacated.”

RELEVANT FACTS

  • Defendant pled guilty to five counts of rape of a child under G. L. c. 265, § 47.
  • G. L. c. 265, § 47 requires that a convicted defendant be put on GPS monitoring for any probation sentence.
  • The defendant was originally sentenced to, among other things, probation, but without GPS monitoring
  • GPS monitoring was not mentioned at all at either the sentencing or the plea hearing. Neither the clerk nor the sentencing judge announced explicitly the GPS monitoring at the hearing, although the clerk announced that the sentence  was “subject to the terms and conditions of the probation department.” Neither the Commonwealth nor the defense brought up the issue, and defense counsel never realized that GPS monitoring was part of the statute and never informed his client as such.
  • Within two days after the sentencing, the defendant signed a probation contract stating that he was required to “wear a GPS or comparable device in accordance with G. L. c. 265, § 47.” The probation contract was signed by a Superior Court judge different from the judge who sentenced the defendant. The defendant’s attorney was not present at this signing. The GPS monitoring condition was also memorialized on the docket.
  • Ten months after the original sentencing, Defendant to remove the GPS monitoring.
  • At the hearing on the motion, the trial court determined that the original sentence should have included GPS monitoring and did not, but that the court could correct its error, and therefore resentenced the defendant with GPS monitoring, also noting that the defendant had been on notice of the GPS requirement thanks to signing the contract with probation within two days after the original sentencing.

OPINION

  • Massachusetts has recognized that GPS monitoring is “singularly punative in effect”, and therefore a defendant must receive actual notice from the sentencing that he will be subject to GPS monitoring. Comonwealth v. Selavka, 469 Mass. 502, 505 n. 5 (2014).
  • The SJC also reiterated the established points of state law that a criminal as the right to be present at his own sentencing.
  • “The the oral pronouncement of a sentence [at the sentencing hearing] generally controls over the written expression where there exists a material conflict between the two…However, no material conflict exists where the defendant is on notice that he is subject to the terms included in the written judgment.” Commonwealth v. Williamson, 462 Mass. 676, 685 (2012).
  • Even though the statute mandated GPS monitoring, the sentencing judge still had a duty to advise the defendant of the GPS monitoring at the sentencing.
  • The clerk’s “general statement that his sentence was ‘subject to the terms and conditions of the probation department’ did not satisfy the requirement that GPS monitoring be specifically articulated at sentencing.
  • The signing of the probation contract did not give the actual notice because it was “that notice was given by the probation department, not the trial judge, after the defendant’s sentencewas imposed. Notice occurring shortly after the sentencing hearing, standing alone, is inadequate to satisfy the requirement that the defendant receive actual notice… from the sentencing judge at the time his sentence is imposed.”
  • The illegal sentence could have been corrected within sixty (60) days under Mass. R. Crim. P. 29 (a) (1) , but where modification occurs after the 60 days, a harsher modification such as GPS monitoring is barred by double jeopardy

ANALYSIS

  • GPS monitoring is considered a very harsh and serious consequence by the SJC, and so any application will be scrutinized closely.
  • At first glance, the SJC appears adamant that sentencing judges need to announce GPS monitoring when it is part of a sentence, and that the failure
  • However, he SJC appears to allow some possibility that the signing of the probation contract could be part of “actual notice” making GPS legal, but only if combined with more.
  • Note that the sentencing court has sixty days to correct the failure to orally notify the defendant of GPS monitoring.
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