COMMONWEALTH vs. MICHAEL C. GRUNDMAN.

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.

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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. [Note 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. [Note 2] During

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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." [Note 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 [Note 4] and a ten-year term of probation, to run concurrently with the committed portion of the sentence. [Note 5] Notwithstanding the requirements of G. L. c. 265, § 47, GPS monitoring was

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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 special conditions" (emphasis supplied). The clerk then read the sentence and every special condition of probation except the provision requiring GPS monitoring. [Note 6]

On the day of the sentencing hearing, the defendant signed the acknowledgment of his probation order, which delineated the terms and conditions of his probation. [Note 7] This probation check-off sheet stated, within the special conditions of probation section, under the sex offender registration heading:

"You shall register with the Sex Offender Registry Board and local police in accordance with G. L. c. 6, § 178E, shall wear a GPS or comparable device in accordance with G. L. c. 265, § 47, shall abide by the geographic exclusion zones established by the Commissioner of Probation, and shall pay the required fees unless waived by the [c]ourt" (emphasis supplied).

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The GPS monitoring condition also was included in the docket entry, dated November 25, 2013, which listed the defendant's sentence.

The defendant filed a motion to revise and revoke his sentence, pursuant to Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), on January 23, 2014, offering additional mitigating information regarding the defendant's mental health, but he failed to raise the question of GPS monitoring. The motion judge, who was also the plea and sentencing judge, denied the motion on March 11, 2014. [Note 8]

On September 24, 2014, the defendant moved to correct a "clerical mistake," pursuant to Mass.R.Civ.P. 42, as amended, 423 Mass. 1406 (1996), asserting that the imposition of the GPS monitoring condition of his probation was in error, as this condition was not imposed orally during the defendant's sentencing hearing. The judge denied the defendant's motion on September 26, 2014, and directed the defendant to appear in court for "the corrected reading of the sentence on the record." That same day, the defendant filed a motion for postconviction relief.

During the hearing on the defendant's motion for postconviction relief, defense counsel stated that he did not believe that G. L. c. 265, § 47, requires GPS monitoring as a probation condition for the defendant's convictions and, similarly, the defendant was not aware of the requirement, as it was not expressly stated during the sentencing hearing. Defense counsel argued that the defendant should not be subject to GPS monitoring because he had already served his committed sentence and hoped to become a commercial diver after his term of parole. [Note 9] The judge explained that G. L. c. 265, § 47, mandates such monitoring and ordered the defendant to be resentenced, to include the GPS monitoring probation condition on the record. Defense counsel did not object to the resentencing or the oral pronouncement. [Note 10]

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The defendant filed a motion for reconsideration, pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), on October 28, 2014. In support of this motion, the defendant offered an affidavit from his counsel at the sentencing hearing confirming that he had not discussed GPS monitoring with the defendant and that counsel "was not aware GPS monitoring would be required as part of [the defendant's] probationary sentence." The judge denied the defendant's motion on January 20, 2015, with respect to the GPS monitoring condition, and denied the defendant's second motion to reconsider on April 3, 2015. This appeal followed.

Discussion. "A criminal defendant has the right to be present at his own sentencing." Commonwealth v. Williamson, 462 Mass. 676 , 685 (2012), quoting from United States v. Vega-Ortiz, 425 F.3d 20, 22 (1st Cir. 2005). "Consistent with [the] right [to be present at sentencing], the oral pronouncement of a sentence generally controls over the written expression where there exists a 'material conflict' between the two." Ibid., quoting from United States v. Ortiz-Torres, 449 F.3d 61, 74 (1st Cir.), cert. denied sub nom. Cosme-Piri v. United States, 549 U.S. 941 (2006), cert. denied sub nom. Torres-Santiago v. United States, 549 U.S. 967 (2006), and cert. denied sub nom. Mattei-Albizu v. United States, 549 U.S. 1313 (2007). The Supreme Judicial Court has addressed an error in sentencing such as the one here in two recent cases: Commonwealth v. Selavka, 469 Mass. 502 (2014), and Williamson, supra.

The defendant argues that Selavka controls. There, as here, the defendant's oral sentence was illegal for its failure to include GPS monitoring as required by G. L. c. 265, § 47. In that case, after the defendant had completed his committed sentence, the Commonwealth filed a motion for GPS monitoring of the defendant, which was allowed. Selavka appealed. See Selavka, supra at 503.

The Supreme Judicial Court, in reviewing the legality of the addition of the GPS monitoring, recognized that the Commonwealth and sentencing judge must have a mechanism to correct an illegal sentence and set a time limit of sixty days to act. [Note 11] See id.

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at 508. Within that timeframe, "a sentence remains conditional rather than final in nature." Ibid. Although a judge is empowered to correct an illegal or incorrect sentence, [Note 12] "even an illegal sentence will, with the passage of time, acquire a finality that bars further punitive charges detrimental to the defendant." Id. at 509. Because the sentence correction in Selavka occurred outside that sixty-day period, the court considered and concluded that the belated imposition of GPS monitoring violated the principle of finality and constituted impermissible multiple punishment in violation of double jeopardy protections. See id. at 514.

In reaching this conclusion, the court specifically rejected the Commonwealth's argument that G. L. c. 265, § 47, operates automatically. The court specifically stated:

"The GPS monitoring mandated by G. L. c. 265, section 47, is not like other conditions of probation that a sentencing judge need not always articulate. . . . Unlike those routine conditions, which include compliance with all laws and orders of the court, contact with the probation officer at his request, and reasonable efforts to obtain and maintain employment, the imposition of GPS monitoring is singularly punitive in effect. See Commonwealth v. Cory, 454 Mass. 559 , 568-569 (2009). For this reason, a defendant must receive actual notice from the sentencing judge that his probation will be conditioned on such a harsh requirement."

Id. at 505 n.5.

The other relevant case is Williamson. In that case, the defendant was sentenced to one year of incarceration in open court. See Williamson, 462 Mass. at 679. Thereafter, a community parole supervision for life (CPSL) condition was entered on the docket. Ibid. The defendant moved to vacate the CPSL condition. Ibid. The motion judge, who was the same judge who heard the defendant's

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plea, denied the motion under the mistaken belief that the CPSL condition was mandatory. Ibid. The Supreme Judicial Court held that the CPSL condition was not mandatory and remanded for resentencing. Id. at 683-384. The court rejected the defendant's argument that CPSL could not be added to his sentence, reasoning that although the sentencing judge did not include CPSL in the oral sentence, the defendant had prior notice of the condition, as CPSL was part of the joint sentencing recommendation and both the Commonwealth and plea counsel explicitly mentioned the imposition of CPSL. Id. at 685-686. Additionally, the defendant expressed his concern about the cost of CPSL monitoring to the sentencing judge after the imposition of his sentence. Ibid. "Accordingly, given the circumstances, although [GPS monitoring] was not imposed in open court, there exists no conflict that is material between the sentence orally imposed and that memorialized on the docket." Id. at 686.

The factual scenario here falls between Williamson and Selavka. In all three cases, the condition of probation at issue was not expressly stated by the judge or clerk during the sentencing hearing. In Williamson, both counsel discussed the probation term at issue in front of the defendant during sentencing, which did not happen in this case. However, here the motion judge found that the defendant had actual notice of the GPS monitoring condition because the oral pronouncement of his sentence expressly stated that the defendant's probationary term was "subject to the terms and conditions of the probation department." That same day as the sentencing, the defendant signed his acknowledgment of the conditions of probation, which included mandatory GPS monitoring within the terms and conditions of the defendant's probation. The defendant averred that he read and understood the probation terms and that he received a copy. This fact sets the case apart from Selavka, where the defendant's written probation order did not mention GPS monitoring. See Selavka, supra at 503-504. Because we agree that the defendant received notice that his sentence was subject to the conditions of the probation department, and through the written probation conditions that included contemporaneous notice of GPS monitoring, we conclude that "there exists no conflict that is material between the sentence orally imposed and that memorialized in the docket" and the GPS condition "was properly imposed in the first instance." Williamson, supra at 686. As a result, double jeopardy was not violated. Nor was the sixty-day limit to change a sentence under

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rule 29(a) violated. [Note 13]

Significantly, the defendant did not object to the GPS monitoring condition when he received and signed his terms of probation, nor did he object to the condition during his resentencing hearing. [Note 14] Moreover, the defendant filed a motion to revise and revoke his plea within sixty days of his sentencing hearing, but failed to challenge the imposition of GPS monitoring at that time.

Conclusion. The order denying the defendant's motion to correct clerical mistake is affirmed. The orders denying defendant's motions for reconsideration are affirmed. [Note 15]

So ordered.