Opinion
No. 15–P–1745.
10-19-2016
COMMONWEALTH v. Michael S. GOMES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, acting pro se, appeals from the denial of his motion to modify the conditions of his probation. We reverse.
Background. On August 3, 2001, a Superior Court jury convicted the defendant of rape and indecent assault and battery on a person fourteen years or older. On August 9, 2001, the defendant was sentenced to State prison on the rape conviction and five years of probation on the indecent assault and battery conviction, to commence from and after his release on the rape charge. Monitoring by a global positioning system device (GPS) was not a condition of the defendant's probation.
In 2006, the Legislature enacted G.L. c. 265, § 47. See St.2006, c. 303, § 8. That statute mandates GPS monitoring of “[a]ny person who is placed on probation for any offense listed within the definition of ‘sex offense,’ a ‘sex offense involving a child,’ or a ‘sexually violent offense,’ as defined in [G.L. c. 6, § 178C ].” In October, 2013, the defendant was resentenced on his August, 2001 convictions following a remand from the Supreme Judicial Court. See Commonwealth v. Gomes, 465 Mass. 1003 (2013). The defendant's probationary sentence was unchanged, except that the conditions of his probation now included “wear[ing] a GPS or comparable device in accordance with G.L. c. 265[, § ] 47, [and] ... abid[ing] by geographical exclusion zones.”
In September, 2015, the defendant moved to modify the conditions of his probation by removing the condition requiring GPS monitoring. He argued that enforcing § 47, against him violates the constitutional prohibition against ex post facto punishment. The Commonwealth opposed the motion on the basis that “the condition was properly imposed by the sentencing judge in an exercise of discretion independent of [G.L. c.] 265, [§ ] 47.” The judge denied the motion “for the reasons stated in the Commonwealth's opposition .” The defendant appeals.
Discussion. We review the denial of the defendant's motion for an abuse of discretion. See Commonwealth v. Morales, 70 Mass.App.Ct. 839, 842 (2007). There is no doubt that § 47 applies retroactively to the defendant; he was convicted of the crimes in 2001 and was “placed on probation” in October, 2013 as a result of his original sentences being vacated. See Commonwealth v. Cory, 454 Mass. 559, 563–564 (2009). GPS monitoring is punitive, and “because § 47 operates retroactively with respect to the defendant, its application to him is impermissible under the ex post facto provisions of the United States and Massachusetts Constitutions.” Id. at 572. The fact that prior to the enactment of § 47 the original sentencing judge may have had “the discretionary power to impose GPS monitoring as a condition of probation does not affect our analysis.” Ibid. The Commonwealth's assertion that the resentencing judge exercised her discretion to impose GPS monitoring is belied by the record. In any event, the October, 2013 order of probation conditions clearly states that the defendant is required to “wear a GPS or comparable device in accordance with G.L. c. 265[, § ] 47.”
The Commonwealth relies on the transcript of the resentencing hearing to support its contention that the judge exercised discretion in imposing GPS monitoring. A transcript from the resentencing hearing is not included in the record; the Commonwealth did not append the transcript to its brief, see Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997), and it did not seek to supplement the record pursuant to Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979). It was the Commonwealth's burden to settle the record if it considered its arguments to be supported by the missing transcript. See Commonwealth v. Woody, 429 Mass. 95, 99 (1999). Because the “assertions in the [Commonwealth's] brief find no support in the appendix ... [, they] are valueless” to us. Perry v. Schlaikjer, 5 Mass.App.Ct. 866, 867 (1977).
Order entered October 27, 2015, denying motion to modify special condition of probation reversed.