Opinion
14-P-800
03-23-2015
COMMONWEALTH v. ELVIN ANDINO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order correcting his sentence by extending a period of probation and including global positioning system (GPS) monitoring. We affirm.
Background. On May 5, 2003, the defendant pleaded guilty to so much of a ten-count indictment as charged rape (counts 1 and 2), kidnapping (count 4), breaking and entering in the daytime with intent to commit a felony (count 5), witness intimidation (count 6), assault and battery causing serious bodily injury (count 7), assault and battery (count 8), threat to commit a crime (count 9), and trespassing (count 10). In exchange for his plea, the Commonwealth had agreed to drop counts 1 and 2 from aggravated rape to rape, and not to prosecute a charge of attempted murder (count 3). After a colloquy, during which the proposed terms of the defendant's probation were discussed, the plea judge accepted the defendant's pleas and imposed the following agreed-upon sentence (original sentence): on count 1, nine to eleven years committed to Massachusetts Correctional Institution (MCI) at Cedar Junction, followed by community parole supervision for life (CPSL); on count 2, nine to eleven years committed and CPSL, concurrent with count 1; on counts 4 and 5, five years' probation from and after the committed sentence, with the only terms to be compliance with CPSL and no contact with the victim; and on counts 6 and 7, four to five years committed, concurrent with count 1. Pleas of guilty to counts 8, 9, and 10 were placed on file with the defendant's consent.
The docket and the indictment reflect a sentence of 5 years' straight probation on count 7, which the parties state was the agreed-upon sentence. However, at the colloquy, the Commonwealth requested and the judge agreed to a four-to-five-year committed sentence on count 7, to be served concurrent with count 1. Because "the oral pronouncement of a sentence generally controls over the written expression where there exists a 'material conflict' between the two," Commonwealth v. Williamson, 462 Mass. 676, 685 (2012) (citations omitted), we consider the defendant to have received a four-to-five-year committed sentence on count 7.
The judge explained that "no sentence [would] be imposed with respect to any of those three charges, with the possibility of a sentence later being imposed if there were to be some reason for that to occur."
In 2006, following the Supreme Judicial Court decision in Commonwealth v. Pagan, 445 Mass. 161 (2005), the defendant filed a pro se motion to correct an illegal sentence under Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001). That motion was not ruled upon. In August of 2012, appointed counsel filed another rule 30(a) motion. Both motions argued that imposition of CPSL was unconstitutional in light of the decision in Pagan. In September of 2012, the Commonwealth moved for resentencing. Stating that it had agreed to the nine-to-eleven-year sentence in large part because the defendant would be subject to CPSL, the Commonwealth asked the judge to increase the probationary term on counts 4 and 5 from five to twenty years. The judge, who had not been the plea judge, adopted the Commonwealth's recommendation, and also imposed as special conditions GPS monitoring with two exclusion zones, "to be reviewed after 5 yrs and every year after that."
In Pagan, the court held, supra at 171-172, that G. L. c. 275, § 18, inserted by St. 1999, c. 74, § 14, was unconstitutionally vague as applied to first-time sex offenders. That statute allows a judge to impose CPSL upon conviction of certain enumerated offenses.
Crossed out on the order of probation conditions form is the sentence ordering the defendant to "wear a GPS or comparable device in accordance with G. L. c. 265, § 47."
Discussion. In light of Pagan, the judge could resentence the defendant without violating double jeopardy principles. See Commonwealth v. Cumming, 466 Mass. 467, 472 (2013); Commonwealth v. Parrillo, 468 Mass. 318, 321 (2014). The judge had wide discretion "to fashion an appropriate[,] individualized sentence," Commonwealth v. Cole, 468 Mass. 294, 302 (2014), quoting from Commonwealth v. Mills, 436 Mass. 387, 399 (2002), while considering "the over-all scheme of punishment employed by the [plea] judge," Commonwealth v. Simmons, 448 Mass. 687, 699 (2007). The defendant argues that the judge abused this discretion by increasing the probationary term on counts 4 and 5 and adding GPS monitoring.
There was no abuse of discretion; the judge "could impose a period of probation with special conditions that may protect the public and enhance the likelihood of rehabilitation to replace the vacated CPSL sentence." Cole, supra at 311. See Commonwealth v. Leggett, 82 Mass. App. Ct. 730, 736 (2012) (recognizing "the discretionary freedom of the resentencing judge to impose a new structure upon the basis of information generated since the first sentencing"). "Although the defendant ask[ed] that only the CPSL portion of his sentence be affected, resentencing as to the entire sentencing scheme [was] appropriate" because CPSL was "imposed as part of an 'integrated package' of sentences on multiple convictions." Parrillo, supra at 320-321 (citations omitted). The Commonwealth and the plea judge clearly had intended at the time of the original sentencing, and the defendant agreed, to a lengthy period of postrelease supervision. See Cumming, supra. The original sentence included as a condition of probation that the defendant have no contact with and stay away "from the victim and her entire family," which condition is effected in the new sentence by exclusion zones and GPS monitoring. The new sentence includes mandatory sex offender and batterer evaluations, which were not conditions of the defendant's original probation because the Commonwealth believed that those services would be provided through CPSL. The new sentence incorporates the parties' intentions and expectations that the defendant serve nine to eleven years in prison, be subject thereafter to long-term supervision, receive services, and be subject to further penalty should he violate the terms of his supervised release.
In ordering GPS monitoring as a special condition of probation reviewable after five years and every year thereafter, instead of imposing it automatically pursuant to G. L. c. 265, § 47, it is clear that the judge exercised her discretion in an attempt to fashion an individual sentence that would effect the intent of the original sentence.
Contrary to the defendant's argument, the corrected sentence does not increase his aggregate punishment. Under the original sentence, the defendant would be "subject [for life] to the jurisdiction, supervision, and control of the parole board, exactly as if [he] were a parolee." Commonwealth v. Renderos, 440 Mass. 422, 429 (2003). Under the corrected sentence, the defendant will only be supervised for twenty years. CPSL was intended "to commence as soon as the sex offender is no longer under supervision through other means," Commonwealth v. Domino, 465 Mass. 569, 574 (2013), and extending the probationary period on counts 4 and 5 accomplishes this intent. Increasing the probationary period does not change the sentence or sentences the defendant might receive if his probation is revoked, see Commonwealth v. Bruzzese, 437 Mass. 606, 617-618 (2002); rather, it extends the period for which the defendant is vulnerable to such punishment. This does not violate double jeopardy, as "a defendant 'does not have a reasonable expectation of finality in any one part or element of [an interdependent] bundle of sentences, but rather, in the entirety of the scheme.'" Cumming, 466 Mass. at 471, quoting from Leggett, 82 Mass. App. Ct. at 736-737. Unlike CPSL, the defendant is now entitled to important procedural protections should a violation be alleged, see Cole, 468 Mass. at 306-307, and "[i]n this respect, the over-all sentence is . . . less, rather than more, onerous than the original sentence that had included the illegally imposed CPSL sanction," Cumming, supra at 474. "The procedure and substance of [the] revision satisfied the criteria of fairness," Leggett, supra at 738, and there was no error.
Order allowing motion for resentencing affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 23, 2015.