COMMONWEALTH vs. EDGAR L. SELAVKA.
Supreme Judicial Court of Massachusetts
Hampshire. February 4, 2014. - August 25, 2014.
469 Mass. 502 (2014)
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
Sex Offender. Global Positioning System Device. Practice, Criminal, Sentence, Probation, Double jeopardy, Duplicative punishment.
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 by 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.
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
The defendant now appeals from the denial of his subsequent motion brought pursuant to
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,
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
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 terms of his probation; and
We begin by noting that the defendant‘s initial sentence was, in fact, illegal for its failure to include GPS monitoring. See Goetzendanner v. Superintendent, Mass. Correctional Inst., Norfolk, 71 Mass. App. Ct. 533, 537 (2008), quoting Commonwealth v. Layne, 21 Mass. App. Ct. 17, 19 (1985) (illegal sentence is one that is “in some way contrary to the applicable statute“). As we held in Commonwealth v. Guzman, supra at 496,
Given this premise, we consider whether the sentencing judge had the authority to correct the defendant‘s illegal sentence, then
a. Judge‘s authority to modify the defendant‘s sentence. The defendant contends that the judge lacked authority to alter his sentence in response to the Commonwealth‘s motion for GPS monitoring. Notably, the Commonwealth filed that motion without making reference to any rule of criminal procedure that would have permitted it to do so. Neither
The Massachusetts Rules of Criminal Procedure provide two means by which a judge may alter the terms of a defendant‘s sentence. Under the caption, “Revision or Revocation of Sentence,” rule 29 (a) provides:
“The trial judge upon his own motion or the written motion of a defendant filed within sixty days after the imposition of a sentence . . . may upon such terms and conditions as he shall order, revise or revoke such sentence if it appears that justice may not have been done.”
Rule 30 (a) concerns postconviction relief, and provides:
“Any person who is imprisoned or whose liberty is restrained pursuant to a criminal conviction may at any time, as of right, file a written motion requesting the trial judge to release him or her or to correct the sentence then being served upon the ground that the confinement or restraint was imposed in violation of the Constitution or laws of the United States or of the Commonwealth of Massachusetts.”
It is plain that neither rule 29 (a) nor rule 30 (a) expressly permits the Commonwealth to file a motion to correct an illegal
In this regard, although the defendant earlier had filed a timely motion pursuant to rule 29 (a) seeking revision or revocation of his sentence, see note 3, supra, the Commonwealth did not urge the judge to take that opportunity to correct his error of law, and the sixty-day period contemplated by that rule had long since run when the judge did take such action. Nor did the defendant file a rule 30 (a) motion prior to the Commonwealth filing its motion for GPS monitoring that would have afforded the judge a similar opportunity. Contrast Commonwealth v. Cumming, 466 Mass. 467, 471 (2013) (judge amended sentence on grounds other than those requested by defendant in his rule 30 [a] motion; defendant had “knowingly exposed himself to the possibility that his entire sentencing scheme might be restructured“).
But it cannot be the case that a judge lacks the authority to correct an illegal sentence simply because we have not determined a mechanism by which the Commonwealth may prompt such action. “A sentencing judge has flexibility to respond appropriately” where he discovers an error in the defendant‘s initial sentence. Dunbrack v. Commonwealth, 398 Mass. 502, 506 (1986). Here, as noted, the failure of the judge to impose GPS monitoring on the defendant as a condition of his probation violated the terms of
For these reasons, we determine that rule 29 (a), with its sixty-day time frame, is the proper vehicle by which the Commonwealth may challenge illegal sentences,7 as here, and request this court‘s standing advisory committee on the rules of criminal procedure to propose an amendment to rule 29 (a) reflecting this conclusion.
b. Double jeopardy and the defendant‘s legitimate expectation of finality. We turn now to the novel question before us: whether the belated correction of a defendant‘s initial sentence, invalid for its failure to have imposed a punitive probationary term required by statute, violates the double jeopardy protection against multiple punishments for the same crime. The defendant maintains that the belated addition of GPS monitoring to the conditions of
The guarantee against double jeopardy consists of three independent protections.8 “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Aldoupolis, supra at 271-272, quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969). These proscriptions “represent[ ] a constitutional policy of finality for the defendant‘s benefit” in criminal proceedings, Aldoupolis, supra at 274, quoting United States v. Jorn, 400 U.S. 470, 479 (1971) (plurality). See Commonwealth v. Goodwin, 458 Mass. 11, 19 (2010) (Goodwin), quoting United States v. Fogel, 829 F.2d 77, 88 (D.C. Cir. 1987) (“primary purpose of [double jeopardy] is to protect the finality of judgments“). Since the defendant here was not twice prosecuted for the same offense, we consider only whether he was subjected to multiple punishments for the same crime.
Despite the seemingly straightforward language of our double jeopardy principles, the scope of the protection against “multiple punishments for the same offense” is far from clear.9 We have, however, repeatedly defined “multiple punishments” as those “in
The present case, however, does not resemble any of these situations. Given that the imposition of GPS monitoring on the defendant was necessary to bring his initial sentence into compliance with
It is precisely because an illegal sentence contravenes the intention of the Legislature that the modification of an illegal sentence, in itself, has not been seen as subjecting a defendant to multiple punishments. To the contrary, “[t]he sentence, as corrected, [merely] imposes a valid punishment for an offense instead of an invalid punishment for that offense.” Id. at 166-167 & n.2 (double jeopardy not implicated where judge, five hours after
This principle, however, does not resolve the case before us, which involves not merely the correction of an illegal sentence, but the long-delayed correction of such a sentence. Although it has been said that the rectification of an illegal sentence does not implicate the notion of multiple punishment since such a sentence is void and must be set aside, cases to that effect have not addressed whether substantial delay may render even an illegal sentence final for the purposes of double jeopardy analysis. See, e.g., Bozza v. United States, supra at 166 (“five-hour interim” between initial sentence and subsequent correction); Commonwealth v. Cowan, supra at 549-550 (no discussion of double jeopardy where judge‘s correction of illegal sentence occurred within sixty-day period of rule 29 [a]).
We have held, outside the context of illegal sentences, that the addition of a sufficiently punitive term to a defendant‘s initial sentence may constitute multiple punishment if the revision adding a new and harsher penalty occurs after that sentence becomes final. In Goodwin, supra at 11-12, we considered whether a judge permissibly could modify the conditions of a defendant‘s probation by the addition of GPS monitoring. Ordinarily, reasonable additions to the conditions of a defendant‘s probation do not constitute the revision or revocation of a sentence under rule 29 (a). Id. at 16, citing Buckley v. Quincy Div. of the Dist. Court Dep‘t, 395 Mass. 815, 818-819 (1985). However, as we noted in Goodwin, supra at 19, certain modifications are “so punitive as to increase significantly the severity of the original probation,” and, by virtue of their harshness, amount to sentence revisions within the meaning of rule 29 (a). Where such punitive amendments are at issue, we concluded, our common-law principles of double jeopardy bar the imposition of “what is essentially a new, harsher sentence” once the rule 29 period has expired. Goodwin, supra. Because the defendant‘s initial sentence had become final upon
Similarly, in Commonwealth v. Bruzzese, 437 Mass. 606, 613 (2002) (Bruzzese), a judge had sentenced a defendant to four concurrent sentences, each consisting of two and one-half years of incarceration. After the defendant had served those two and one-half years on the first three convictions, the judge revoked his probation as to the fourth, and ordered that he remain incarcerated for an additional year. Id. at 614. We barred this revision, which subjected the defendant to greater punishment than the initial sentencing scheme had contemplated, as an impermissible multiple punishment in violation of double jeopardy. Id. The entire concurrent sentencing scheme was subject to the terms of rule 29 (a), we noted, and “could not be changed” once the sixty-day deadline set forth by that rule had expired. Id. Cf. Commonwealth v. Woodward, 427 Mass. 659, 685-686, 690 (1998) (affirming denial of Commonwealth‘s postconviction request to vacate and remand lawful sentence for possible increase where defendant‘s expectation of finality in initial sentence would render new, harsher sentence impermissible multiple punishment).
The circumstances of Goodwin and Bruzzese are, plainly, distinct in certain respects from those in the present case. Here, the modification requested was mandatory rather than discretionary in nature insofar as it was to remedy the erroneous sentence initially imposed. Goodwin and Bruzzese, on the other hand, both involved discretionary modifications to a defendant‘s sentence. See Goodwin, supra at 18 n.9 (“We address here only discretionary modifications of probation“). Moreover, whereas the defendant‘s initial sentence here was invalid for its noncompliance with
These factual differences notwithstanding, however, we have never indicated that the principles of finality on which Goodwin and Bruzzese relied are inapplicable where illegal sentences are concerned, or that an illegal sentence may never become final for the purposes of double jeopardy. Far from holding that the Commonwealth may correct an illegal sentence at any time without
The rationale underlying both Goodwin and Bruzzese thus applies with substantial force to the facts before us. Where a defendant‘s expectation of finality in his initial sentence has “crystallized” after enough time, United States v. Lundien, 769 F.2d 981, 987 (4th Cir. 1985), cert. denied, 474 U.S. 1064 (1986), the invalidity of that sentence does not render its subsequent correction by way of increased penalties immune to a double jeopardy challenge. Such an approach would undermine the notion of finality, which animates our common-law protections against double jeopardy and prevents the Commonwealth from “shatter[ing] the defendant‘s repose and threaten[ing] him with grievous harm.” Double Jeopardy, 91 Harv. L. Rev. 101, 102 (1977). Even where a defendant‘s original sentence, as here, unquestionably is erroneous, his “interest in repose” remains, and may suffice to prohibit the addition of even those punitive terms necessary to bring the sentence into compliance with a relevant statute (citation omitted). See Aldoupolis, supra at 272.
In the future, as discussed, the Commonwealth will be obliged to discern and seek to correct sentencing errors within the sixty
A defendant‘s expectation of finality in his sentence increases once he has begun to serve that sentence. See Fine v. Commonwealth, 312 Mass. 252, 256 (1942); Commonwealth v. Weymouth, supra at 147. Prior to the Commonwealth‘s request that GPS monitoring be imposed, the defendant had served approximately seven months of incarceration before being released on parole and, having completed his committed sentence, had begun serving his seven-year term of probation. During that time, the defendant had every reason to believe that his sentence would remain fixed; he could not have anticipated that the judge might revisit his initial sentencing decision and “impose[ ] new burdens” on him. Goodwin, supra at 19. Contrast Commonwealth v. Cumming, 466 Mass. 467, 471 (2013) (defendant who filed rule 30 [a] motion to alter sentence diminished any expectation of finality he previously had in that sentence); United States v. DiFrancesco, 449 U.S. 117, 139 (1980) (judge permitted to increase defendant‘s initial sentence; defendant lacked expectation of finality in that sentence where statute provided that sentence was subject to appeal).
Moreover, the defendant was given no opportunity to withdraw his guilty plea upon the addition of GPS monitoring to the conditions of his probation, see
In these circumstances, therefore, the imposition of GPS monitoring on the defendant was not timely enough to protect his interest in the finality of his initial punishment. The judge did not require the defendant to wear a GPS device until nearly one year after he first received his sentence. As discussed, by then the defendant had served his entire term of incarceration and had been given no notice that the conditions of his probation might change. Disrupting, at such a late date, the defendant‘s reasonable expectation of finality as to the conditions of his probation would engender precisely the “anxiety and insecurity” that our principles of double jeopardy guard against. Aldoupolis, supra at 274.
3. Conclusion. Nearly one year after the defendant received his initial sentence, the judge allowed the Commonwealth‘s motion to impose GPS monitoring as an additional condition of the defendant‘s probation. The defendant filed a rule 30 (a) motion seeking to vacate this addition to his initial sentence, and appealed from the denial of that motion. For the reasons discussed, the order imposing GPS monitoring on the defendant was impermissible and is therefore vacated. All other terms and conditions of the defendant‘s sentence were unaffected by the defendant‘s motion, and remain valid and unchanged.
So ordered.
Notes
We reject this interpretation. The GPS monitoring mandated by