Opinion
20-P-1380
04-01-2022
COMMONWEALTH v. George WAMBOLDT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his motion to modify (i.e., eliminate) certain special conditions of probation to which he agreed as part of a plea. We affirm.
In 2018, the defendant pleaded guilty to two counts of rape of a child, and one count of unnatural acts with a child under the age of sixteen. In consideration of the plea, the Commonwealth nolle prossed so much of the rape indictments that alleged aggravation based on age difference. The defendant received a sentence of concurrent terms of eight to ten years on the rape charges, and three years of supervised probation on the unnatural acts conviction, to run after his release from incarceration. As part of the plea, the defendant agreed to several special conditions of probation.
Two years later, in 2020, the defendant moved to modify three of the special conditions. Specifically, he challenged (1) the condition that he attend sex offender treatment at his own expense as directed by the probation officer and ordered by the court; (2) the condition that he not reside in a household with minor children, including his own, without court permission; and (3) the condition that he be subject to global positioning system (GPS) monitoring with exclusion zones as to the victim. In a detailed and thoughtful memorandum, the motion judge (who had also been the plea judge) denied the motion, explaining the reasons he left each of the conditions in place.
The defendant has not shown that the judge abused his discretion in denying the motion. We begin by noting that the defendant has not provided a transcript of the plea hearing, nor has he provided in the appellate record any other information concerning the factual bases for the charges, the plea, or the original imposition of the special conditions of probation. The defendant has, accordingly, given no bases upon which to second-guess the motion judge's discretionary evaluation of whether the special probation conditions should be left undisturbed in light of the circumstances for which they were originally imposed. See Commonwealth v. Pike, 428 Mass. 393, 402-403 (1998) (provided conditions are reasonably related to the goals of sentencing and probation, judges are permitted "great latitude" in imposing conditions of probation, even where they infringe constitutional rights).
In any event, even were we to overlook the inadequacy of the record, the defendant's arguments fare no better. As to the condition that the defendant engage in sex offender treatment while on probation, the judge stated that he continued to hold a concern that treatment remained necessary when the defendant would be released into the community. The judge noted that, although the defendant had participated in sex offender treatment while incarcerated, he offered no documentation that he had been "professionally discharged by an approved sex offender therapist." We discern no abuse of discretion with respect to this condition.
Similarly, the defendant has failed to show an abuse of discretion with respect to the special condition that he not reside with minor children, including his own, without court permission. See Commonwealth v. Lapointe, 435 Mass. 455, 461 (2001) (probationary residency restrictions did not impermissibly infringe on constitutional rights, nor parenting rights). As the judge noted, the defendant provided no details concerning his planned living arrangements upon release. On appeal, the defendant argues that he intends to pursue an interstate transfer to be permitted to live with his family, including his children, in another state. As presented, these amorphous plans are not such as to persuade us that the judge abused his discretion in not modifying or eliminating the special residency condition.
Finally, as to the imposition of GPS monitoring, the judge recognized that -- after the defendant's plea -- the Supreme Judicial Court had announced a framework for determining the imposition of GPS monitoring as a condition of probation. See Commonwealth v. Feliz, 481 Mass. 689 (2019). The judge then considered and balanced the various factors of the Feliz framework, and concluded that GPS monitoring remained an appropriate special condition. Specifically, the judge considered the fact that the defendant had been convicted of three contact sex offenses, and that GPS monitoring -- with an exclusion zone for the victim -- was necessary to assure compliance with the requirement that he have no contact with the victim. The judge was not required to accept the defendant's view that GPS monitoring was no longer necessary given his hope to move out of state upon his release from incarceration.
For these reasons, we affirm the order denying the defendant's motion to modify the special conditions of his probation.
So ordered.
Affirmed