Commonwealth v. Grundman (Lawyers Weekly No. 11-140-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us 15-P-663 Appeals Court COMMONWEALTH vs. MICHAEL C. GRUNDMAN. No. 15-P-663. Barnstable. June 9, 2016. – October 5, 2016. Present: Carhart, Maldonado, & Henry, JJ. Sex Offender. Global Positioning System Device. Practice, Criminal, Probation, Sentence, Double jeopardy. Indictments found and returned in the Superior Court Department on October 19, 2012. A motion to correct a clerical error in sentence, filed September 24, 2014, was heard by Gary A. Nickerson, J., and motions for reconsideration were considered by him. Andrew S. Crouch for the defendant. Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth. HENRY, J. The defendant pleaded guilty to five counts of rape of a child involving two children, in violation of G. L. c. 265, § 23. He was sentenced to two years committed in a house of correction, and a probationary term of ten years commencing concurrently with the committed sentence. The sentencing judge imposed conditions of probation, including global positioning system (GPS) monitoring as mandated for this offense by G. L. c. 265, § 47, on the sentencing checklist. See Commonwealth v. Guzman, 469 Mass. 492, 493 (2014) (Section 47 “affords a sentencing judge no discretion whether to impose GPS monitoring on a defendant sentenced, as here, to a probationary term for an enumerated offense”). The docket reflected this sentence as well. However, the clerk did not read that GPS monitoring was a condition of probation aloud in open court. The clerk did read every other condition of probation during the oral sentencing, fifteen in total. The written conditions of probation signed by the defendant on the day of sentencing did include the GPS monitoring as a term of probation. Nearly one year after the imposition of his sentence, the defendant sought to “correct” what the defendant characterized as a “clerical error” in his sentence, pursuant to Mass.R.Civ.P. 42, as amended, 423 Mass. 1406 (1996), to remove the GPS monitoring condition. The matter is especially significant to the defendant because he aspires to become a commercial diver and that career is not compatible with GPS monitoring. After a hearing, the defendant’s motion was denied, and the judge noted that the failure to orally impose GPS monitoring was an inadvertent error. The judge ordered the defendant to appear in court for a correct reading of his sentence on the record. […]