Commonwealth v. Selavka , 469 Mass. 502 ( 2014 )

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SJC-11461
COMMONWEALTH vs. EDGAR L. SELAVKA.
Hampshire. February 4, 2014. - August 25, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1
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.
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
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
G. L. c. 272, § 29C. In addition to a period of incarceration,
the defendant was sentenced to a term of probation.
Notwithstanding the provisions of G. L. c. 265, § 47, requiring
that defendants convicted of certain enumerated sex offenses,
including possession of child pornography, be subject to global
positioning system (GPS) monitoring as a condition of any term
of probation, such monitoring was not imposed as part of the
defendant's sentence. Almost one year later, the Commonwealth
sought correction before the sentencing judge of what it termed
an illegal sentence by the addition of GPS monitoring as a
condition of the defendant's probation. After a hearing, the
Commonwealth's motion was allowed and GPS monitoring was ordered
for the duration of the defendant's probationary period.
The defendant now appeals from the denial of his subsequent
motion brought pursuant to Mass. R. Crim. P. 30 (a), as
appearing in 435 Mass. 1501 (2001) (rule 30[a]), to vacate the
addition of GPS monitoring to the conditions of his probation,
contending both that the judge lacked authority to modify his
sentence and that the delayed imposition of GPS monitoring
violated principles of double jeopardy. As we determined in
Commonwealth v. Guzman, ante (2014), G. L. c. 265, § 47,
3
affords a sentencing judge no discretion as to the imposition of
GPS monitoring for probationers convicted of the specified
predicate offenses. Accordingly, the defendant's initial
sentence was illegal insofar as it did not include GPS
monitoring as a condition of the defendant's probation. In the
circumstances, however, the belated correction of that sentence
contravened the defendant's legitimate expectation of finality
in the terms of his initial sentence, and the imposition of GPS
monitoring on him cannot stand.
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, G. L. c. 272, § 29C. Neither
during the plea colloquy that day nor at the subsequent
sentencing hearing on July 9, 2008, was any mention made of the
fact that G. L. c. 265, § 47, required the imposition of GPS
monitoring as a condition of any term of probation. At the
sentencing hearing, the defendant was sentenced to two
concurrent terms of incarceration for two and one-half years,
each with one year to serve and the balance to be suspended
during a seven-year term of probation. The judge accepted all
of the Commonwealth's recommended special conditions of
probation;2 GPS monitoring was not among them. Moreover, the
2
The Commonwealth requested, and the judge ordered as
conditions of probation, that the defendant participate in sex
4
defendant's probation contract did not mention GPS monitoring.
The defendant was released on parole on February 13, 2009.3
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 G. L. c. 265, § 47. After a hearing in
June, 2009, the judge allowed the motion over the defendant's
objection, but ordered that the defendant not be subject to any
geographic exclusion zones.4 On November 19, 2012, before a
different judge, the defendant moved pursuant to rule 30 (a) to
vacate the modified sentence.
offender treatment, continue taking his then-current
medications, participate in substance abuse treatment, and
attend Narcotics Anonymous. The judge also prohibited the
defendant from using the Internet, having unsupervised contact
with minor children, living with minor children, and obtaining
employment requiring unsupervised contact with minor children.
3
On September 8, 2008, the defendant filed a motion to
revise and revoke his sentence pursuant to Mass. R. Crim.
P. 29 (a), 378 Mass. 899 (1979) (rule 29 [a]); he sought a
reduction of the period of incarceration from one year to six
months. The sentencing judge denied the motion.
4
General Laws c. 265, § 47, provides that the Commissioner
of Probation (commissioner) may prohibit a defendant from
entering certain geographic areas throughout the term of his
probation, if applicable. Here, the commissioner did not
propose any exclusion zones.
5
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, second, that the belated imposition of GPS
monitoring as a condition of his probation violated the
principles of double jeopardy. The Commonwealth maintains that
the defendant's initial sentence was illegal for its failure to
include GPS monitoring, and that the passage of time did not
prevent the judge from correcting that error. The Commonwealth
further urges that the defendant had no legitimate expectation
of finality in his illegal sentence.
6
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 , G. L.
c. 265, § 47, requires a sentencing judge to impose GPS
monitoring where a defendant has been convicted of an enumerated
offense and has been sentenced to a term of probation. The
defendant here pleaded guilty to possession of child
pornography, a qualifying offense under G. L. c. 6, § 178C, and
was sentenced to a seven-year probationary term. Pursuant to
G. L. c. 265, § 47, therefore, the defendant's initial sentence
was illegal insofar as it did not include GPS monitoring,5 and
5
The Commonwealth contends, separately, that the
defendant's initial sentence did, in fact, include global
positioning system (GPS) monitoring as a condition of probation.
Because G. L. c. 265, § 47, operates automatically, the
Commonwealth maintains, the sentencing judge need not
specifically have ordered such monitoring.
We reject this interpretation. The GPS monitoring mandated
by G. L. c. 265, § 47, is not like other conditions of probation
that a sentencing judge need not always articulate. See Rule 56
of the Rules of the Superior Court (2012) (enumerating
conditions applicable to all terms of probation and stating that
"[a]ny other condition shall be presumed to be in addition to
the foregoing"). 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
7
the subsequent imposition of GPS monitoring constituted a
revision of that illegal sentence.
Given this premise, we consider whether the sentencing
judge had the authority to correct the defendant's illegal
sentence, then examine whether he was time barred from doing so
under the principles of double jeopardy. We conclude that,
although the judge was empowered to correct the defendant's
sentence, he was not permitted to do so nearly one year after
the defendant received that sentence, where the defendant
already had served his entire period of incarceration and had a
legitimate expectation of finality in the sentence as initially
imposed. We therefore vacate the order insofar as it imposes
GPS monitoring on the defendant as a condition of his probation.
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
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. Cf.
Commonwealth v. Murphy, 73 Mass. App. Ct. 57, 65-66 (2008);
Mass. R. Crim. P. 12 (c) (3) (B), as appearing in 442 Mass. 1511(2004) (judge required to inform defendant, during plea
colloquy, of maximum possible sentence for his offense as well
as any mandatory minimum sentence).
8
have permitted it to do so. Neither Mass. R. Crim. P. 29 (a),
378 Mass. 899 (1979) (rule 29 [a]), nor rule 30 (a), the usual
mechanisms for altering the terms of a defendant's sentence,
have application in these circumstances. The defendant urges
the view that, absent authorization under these or any other
rules of criminal procedure, the judge's modification of his
sentence by the addition of GPS monitoring as an additional
condition of probation was invalid. We do not agree.
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 sentence or otherwise ask that a defendant's sentence
9
be altered. See Commonwealth v. Woodward, 427 Mass. 659, 685
(1998). Indeed, "there is no rule of criminal procedure that
permits the Commonwealth to take such an appeal."6 Id.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
6
The Commonwealth did not petition the county court
pursuant to G. L. c. 211, § 3, to correct an illegal sentence.
Contrast Commonwealth v. Galvin, 466 Mass. 286, 289 (2013);
Commonwealth v. Goodwin, 458 Mass. 11, 14-15 (2010). It is in
any event far preferable that such matters be addressed in the
first instance by a judge of the trial court, particularly where
the sentencing judge is available.
10
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 G. L. c. 265, § 47, and rendered the
resulting sentence unlawful. See Commonwealth v. McGuinness,
421 Mass. 472, 475 (1995) (sentence unlawful where "premised on
a major misunderstanding of the sentencing judge as to the legal
bounds of his authority"). The Commonwealth must have some
recourse by which to prompt judicial action in these
circumstances, and a judge must have the ability to take
appropriate action to rectify the error. See Thompson v. United
States, 495 F.2d 1304, 1306 (1st Cir. 1974) ("a trial court not
only can alter a statutorily-invalid sentence in a way which
might increase its severity, but must do so when the statute so
provides").
We note that the Commonwealth occasionally has sought to
correct a purportedly illegal sentence by encouraging the
sentencing judge to exercise his or her authority under
rule 29 (a). See, e.g., Commonwealth v. Galvin, 466 Mass. 286,
288 & n.7 (2013). Cf. Commonwealth v. Sitko, 372 Mass. 305, 311
(1977), S.C., 379 Mass. 921 (1980) (Commonwealth sought, by
means of rule 29 [a], to increase defendant's sentence).
11
Although nothing in the text of rule 29 (a) explicitly permits
such requests, it is appropriate that the Commonwealth be
permitted to contest an invalid sentence by means of essentially
the same mechanism for adjusting sentences that is available to
the defendant and the sentencing judge. The sixty-day period
set forth in rule 29 (a) implicates certain of our common-law
protections against double jeopardy, discussed in greater detail
below. Specifically, while subject to revocation and revision
within the time frame and under the terms of rule 29 (a), a
sentence remains conditional rather than final in nature. This
"reasonably balances the defendant's interest in finality
against society's interest in law enforcement." Aldoupolis v.
Commonwealth, 386 Mass. 260, 275 (1982), S.C., 390 Mass. 438(1983) (Aldoupolis). Requiring that the Commonwealth now adhere
to a uniform procedure further ensures that a defendant need
not, based on the ongoing possibility of heightened punishment,
"live in a constant state of anxiety and insecurity." Id. at
274.
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
7
As at present, the Commonwealth may not use rule 29 (a) as
a vehicle to contest a legal sentence with which it is
dissatisfied. When the Commonwealth proves that the sentence
challenged is illegal, however, correction of the sentence is
12
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 his probation constituted
the impermissible imposition of a new and harsher sentence at a
time when his initial sentence, while invalid, had nevertheless
become final. The Commonwealth, on the other hand, contends
that double jeopardy was not violated by the correction of an
illegal sentence nearly one year after that sentence first had
been imposed given that the initial sentence was not final by
virtue of illegality. For the reasons we discuss, we conclude
that even an illegal sentence will, with the passage of time,
acquire a finality that bars further punitive changes
detrimental to the defendant. Accordingly, in the circumstances
here, the delayed correction of the defendant's initial
mandatory and satisfies the rule's proviso that "justice may not
have been done."
13
sentence, in which he by then had a legitimate expectation of
finality, violated double jeopardy and cannot stand.
The guarantee against double jeopardy consists of three
independent protections. "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[8] 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.
8
The Massachusetts Declaration of Rights does not, in
contrast to the United States Constitution, contain a double
jeopardy clause, but we consider our common law to embrace the
same principles and protections. See Aldoupolis v.
Commonwealth, 386 Mass. 260, 271 n.14 (1982), S.C., 390 Mass.
438 (1983).
14
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 excess of what a Legislature intended to be the
punishment for a particular offense," Aldoupolis, supra at 272,
citing Albernaz v. United States, 450 U.S. 333, 344 (1981). For
example, in Gallinaro v. Commonwealth, 362 Mass. 728, 729 n.2
(1973), two defendants were sentenced to a term of imprisonment
as well as required to pay a fine under a statute that permitted
only one or the other such penalty, not both. These sentences
constituted multiple punishments, we concluded, because they
violated the Legislature's stated intent that a defendant
undergo but one of the two alternative statutory penalties. Id.
at 732-733. See Ex parte Lange, 18 Wall. 163, 175-176 (1873)
(judge prohibited from sentencing defendant to both fine and
imprisonment where statute permitted only fine or imprisonment).
Similarly, unless the Legislature has specifically authorized
cumulative punishments, we have long prohibited separately
penalizing a defendant for each of two convictions where one
9
Then Justice Rehnquist observed that "the decisional law
in the area is a veritable Sargasso Sea which could not fail to
challenge the most intrepid judicial navigator." Albernaz v.
United States, 450 U.S. 333, 343 (1981). See Marshall v.
Commonwealth, 463 Mass. 529, 534 (2012) (addressing "web of
jurisprudence" concerning double jeopardy principles in
Commonwealth).
15
crime is a lesser included offense of the other. See
Commonwealth v. Suero, 465 Mass. 215, 223 (2013); Morey v.
Commonwealth, 108 Mass. 433, 434 (1871). See also Brown v.
Ohio, 432 U.S. 161, 169 (1977) ("the Fifth Amendment
forbids . . . cumulative punishment for a greater and lesser
included offense").
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 G. L. c. 265, § 47, it cannot be said, by virtue
of his corrected sentence, that the defendant endured a greater
penalty than the Legislature had envisioned for his particular
offense. See United States v. DiFrancesco, 449 U.S. 117, 139
(1980) (no multiple punishment where defendants' increased
sentence remained within statutory boundaries). Indeed, as
corrected, the defendant's sentence was exactly the sentence
that the Legislature mandated: the use of a GPS device as a
mandatory condition of his probationary term. See Bozza v.
United States, 330 U.S. 160, 165-167 (1947) (judge permitted to
correct initial sentence so as to include statutorily mandated
fine).
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
16
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 initial imposition of sentence, corrected erroneous
omission from sentence). Even where a corrected sentence is
harsher than its previous iteration, a defendant is not punished
twice where the sentencing judge "only set[s] aside what [he or
she] had no authority to do, and substitute[s] directions
required by the law to be done upon the conviction of the
offender." Id., quoting In re Bonner, 151 U.S. 242, 260 (1894).
See generally Commonwealth v. Cowan, 422 Mass. 546 (1996) (no
discussion of double jeopardy where judge corrected sentence to
incorporate statutory minimum requirement, subjecting defendant
to harsher penalty).
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
17
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,
18
supra. Because the defendant's initial sentence had become
final upon the expiration of the rule 29 (a) deadline, the
addition of GPS monitoring -- a "serious, affirmative restraint"
on a defendant's liberty -- as a condition of probation would
constitute multiple punishment. Id. at 22-23, quoting
Commonwealth v. Cory, 454 Mass. 559, 570 (2009).
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
19
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 G. L. c. 265, § 47, the sentences at
issue in Goodwin and Bruzzese complied with all relevant
statutes, both initially and as modified.
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
regard for a defendant's expectation of finality,10 we have said
10
Although a judge may correct, at any time, clerical
errors and other technical flaws in a defendant's sentence, see
Mass. R. Crim. P. 42, 378 Mass. 919 (1979) ("[C]lerical
mistakes . . . may be corrected by the court at any time of its
20
that a sentencing judge may correct a defendant's illegal
sentence only when the error "is discovered in a timely manner."
Dunbrack v. Commonwealth, 398 Mass. 502, 506 (1986);
Commonwealth v. Weymouth, 2 Allen 144, 145 (1861) (court may
correct defendant's sentence within same term that it initially
issued). Cf. Commonwealth v. O'Brien, 175 Mass. 37, 39-40
(1899) (judge may "correct any illegality or error in a
sentence, provided it then remains wholly unexecuted"). To be
sure, a defendant's legitimate expectation of finality may well
be diminished when his sentence is illegal. See Commonwealth v.
Woodward, supra at 687. But, by the same token, that principle
does not afford carte blanche to correct erroneous sentences at
any point subsequent to their initial imposition. See Breest v.
Helgemoe, 579 F.2d 95, 101 (1st Cir. 1978) ("the power of a
sentencing court to correct even a statutorily invalid sentence
must be subject to some temporal limit").
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
own initiative . . ."), and Commonwealth v. Miranda, 415 Mass.
1, 5 (1993), "errors of substance" that "trample the defendant's
rightful expectations" are not considered clerical. See id.21
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-day time period of rule 29 (a). Even an illegal
sentence will become final for the purposes of double jeopardy
after the expiration of that time period, and no longer will be
subject to revision or revocation within the terms of
rule 29 (a). Here, as was the case in Goodwin, supra, and
Bruzzese, supra, the sixty-day period set forth in rule 29 (a)
had long since expired when the Commonwealth requested the
defendant's initial sentence be amended. We acknowledge that,
at the time GPS monitoring was imposed on the defendant, we had
not yet concluded that rule 29 (a) provided the relevant
22
deadline for the correction of illegal sentences. Nevertheless,
in the circumstances, we conclude that the belated imposition of
GPS monitoring on the defendant violated the principle of
finality and constituted an impermissible multiple punishment.
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).
23
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 Mass. R. Crim.
P. 12 (c) (2), as appearing in 442 Mass. 1511 (2004), even
though this revision did not "conform to [his] legitimate
sentence expectation." Goodwin, supra at 21, quoting Reporters'
Notes (Revised, 2004) to Rule 12, Mass. Ann. Laws Court Rules,
Rules of Criminal Procedure, at 1429 (LexisNexis 2008-2009).
Defendants who tender such pleas on the prosecutor's
recommendation do so to achieve a measure of certainty in their
sentences. "It would be unfair and contrary to the spirit of
rule 12 (c) (2) for a judge to accept a plea bargain and impose
the recommended sentence, and then, after the defendant has lost
the opportunity to withdraw his plea, increase the sentence by
adding a new or modified probationary condition so severe as to
significantly increase the recommended sentence." Goodwin,
supra.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
24
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.