Opinion
13-P-1296
06-04-2014
COMMONWEALTH v. GEORGE SALLOP.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At issue is whether the resentencing of the defendant, George Sallop, to include global positioning system (GPS) monitoring as a condition of probation was proper. We hold that it was, and accordingly affirm.
Background. On January 4, 2002, the defendant pleaded guilty to a variety of serious changes, to wit (1) two counts of rape of a child by force; (2) assault and battery by means of a dangerous weapon; (3) open and gross lewdness and lascivious behavior; and (4) two counts of assault and battery. On the first charge, he was sentenced to State prison for ten to fifteen years. On the second, he was sentenced to State prison for nine to ten years. On the third, he was sentenced to State prison for two to three years. On the fourth, he was sentenced to two and one-half years in the house of correction. All sentences were to run concurrently. Pursuant to G. L. c. 265, § 45, and G. L. c. 275, § 18, the defendant was placed on community parole supervision for life (CPSL).
On February 8, 2008, the defendant moved to vacate the CPSL requirement, pursuant to Commonwealth v. Pagan, 445 Mass. 161, 162 (2005). On April 16, 2009, a judge in the Superior Court allowed his motion and restructured his sentence to include a ten-year probationary term on counts two and three with a special condition of GPS monitoring, which was to be in effect over the term of ten years. The defendant was permitted to petition the court after three years to have the condition removed if there were no subsequent violations. The imposition of GPS monitoring was, according to the judge, warranted by the circumstances of the crimes committed.
In Pagan, the Supreme Judicial Court held that sentencing a defendant as a repeat offender without indicting him as such violates art. 12 of the Massachusetts Declaration of Rights. Furthermore, G. L. c. 275, § 18, was found to be unconstitutionally vague as applied to first-time offenders. See Pagan, 445 Mass. at 162-163.
On appeal, the defendant argues that the judge abused her discretion by adding the condition of GPS monitoring to his restructured sentence because (1) the imposition of GPS monitoring increased the severity of the original punishment, and (2) the defendant had fully served particular counts of his sentence.
Discussion. A judge has the authority to vacate and restructure the entire sentencing scheme if the CPSL portion of the sentence is vacated and 'the imposition of CPSL was part of an interdependent sentencing scheme.' Commonwealth v. Cumming, 466 Mass. 467, 468 (2013). 'A judge's sentencing scheme for a defendant convicted of multiple offenses . . . is typically an integrated plan and not a mechanical formation of separate sanctions.' Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 735 (2012). See Commonwealth v. Talbot, 444 Mass. 586, 597-598 (2005) (judge may restructure sentence if CPSL requirement is eliminated).
Here, the defendant argues that it was an abuse of discretion for the judge to include the condition of GPS monitoring, as there was no 'material change in circumstances' warranting an increase in the severity of his sentence. As an initial matter, the defendant offers no salient reasons why the condition of GPS monitoring is more severe than the original imposition of CPSL. His argument, indeed, is based on the erroneous notion that the judge was adding additional punishment to his sentence. Instead, the judge was substituting, not adding.
A separate material change in circumstances is not required where an unlawful CPSL requirement was imposed. See Commonwealth v. Cumming, 466 Mass. at 471 (judge has authority under Mass.R.Crim.P. 30[a], as appearing in 435 Mass. 1501 [2001], to vacate unlawful CPSL and restructure sentences accordingly).
Under CPSL, a defendant, for the balance of his or her life, remains 'subject to the jurisdiction, supervision, and control of the parole board, exactly as if such person were a parolee.' Commonwealth v. Renderos, 440 Mass. 422, 429 (2003). In contrast, the defendant here could petition for the removal of GPS monitoring after three years.
The defendant further argues that the condition of GPS monitoring is 'unfairly burdensome' because it 'added from-andafter probationary terms to sentences which were or would be served in full before the disputed GPS condition would begin.' Since this double jeopardy argument was not made in the trial court, we need not consider it on appeal. Commonwealth v. Fico, 462 Mass. 737, 745 (2012). Even if we were to consider it, the defendant would fare no better. The matter is controlled, contrary to the defendant's interests, by Commonwealth v. Cumming, 466 Mass. at 471-472, and Commonwealth v. Leggett, 82 Mass. App. Ct. at 735-736. As for the fear of inappropriately serving additional time in the event of a violation of probation, the Commonwealth acknowledges that Cumming, supra, controls and prevents this.
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In the present case, the judge determined in her discretion that the integrated sentence should now include GPS monitoring. In so deciding, she appropriately considered the 'hostile nature of the offense and the brutality of the attack.' There was no error.
For the foregoing reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Order denying motion to vacate condition of probation affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),