Commonwealth v. Grundman (Lawyers Weekly No. 10-045-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us SJC-12264 COMMONWEALTH vs. MICHAEL C. GRUNDMAN. Barnstable. November 9, 2017. – March 22, 2018. Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ. Sex Offender. Global Positioning System Device. Practice, Criminal, Sentence, Probation. Indictments found and returned in the Superior Court Department on October 19, 2012. A motion to correct a clerical error in sentence, filed on September 24, 2014, was heard by Gary A. Nickerson, J., and motions for reconsideration were considered by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Andrew S. Crouch for the defendant. Elizabeth M. Carey, Assistant District Attorney, for the Commonwealth. LOWY, J. The defendant pleaded guilty to two indictments charging five counts of rape of a child and was sentenced to a term of incarceration and a term of probation. Despite the provisions of G. L. c. 265, § 47, mandating that defendants convicted of certain sex offenses, including rape of a child, be subject to global positioning system (GPS) monitoring as a condition of any term of probation, that condition was not announced in open court when the defendant’s sentence was imposed.[1] At issue here is whether the judge erred in resentencing the defendant to include the GPS monitoring condition approximately ten months after the defendant was originally sentenced. We conclude that because the defendant here did not receive actual notice from the sentencing judge, at the time of sentencing, that GPS monitoring was included as a special condition of his probation, and because the resentencing occurred after the sixty-day period in which an illegal sentence may be corrected under Mass. R. Crim. P. 29 (a) (1), as appearing in 474 Mass. 1503 (2016), the belated imposition of GPS monitoring must be vacated. See Commonwealth v. Selavka, 469 Mass. 502, 513-514 (2014). Background. Following a plea colloquy, the defendant pleaded guilty to five counts of rape of a child, involving two victims. The defendant’s sentencing hearing occurred approximately two months later, when a Superior Court judge sentenced him to a term of two years in a house of correction and a ten-year term of probation (with special conditions) to be served concurrently with his term of incarceration. In open court, the clerk announced that the defendant’s sentence would […]