Opinion
No. 11–P–1511.
2013-06-24
COMMONWEALTH v. Christopher LEMONDE.
By the Court (GRASSO, SIKORA & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal, the defendant challenges a resentencing that occurred as a result of the decision in Commonwealth v. Pagan, 445 Mass. 161, 170–173 (2005), which held that imposition of community parole supervision for life (CPSL) on a first time sex offender is unlawful. The defendant contends that (1) the judge lacked jurisdiction to resentence him to an additional five-year period of probation, (2) imposition of a GPS monitoring requirement was improper, and (3) the judge improperly delegated judicial authority to a probation officer to determine whether to remove the GPS monitoring requirement.
We reject the defendant's challenges to the judge's authority at resentencing to impose five additional years of probation and a GPS monitoring requirement. Moreover, in the subsequent posture of the case on the defendant's motion to vacate the GPS monitoring requirement, we discern no error in the judge's denial of the defendant's motion and directions to the probation officer.
1. Background. On January 13, 2004, the defendant pleaded guilty to three indictments. On an indictment of indecent assault and battery on a child under fourteen, the judge sentenced the defendant to eighty-one days in the house of correction, deemed served. On two indictments of rape of a child with force, the judge imposed concurrent six-year terms of probation with CPSL and various other special conditions of probation. Subsequently, on April 1, 2010, the defendant moved to vacate the imposition of CPSL from his sentences and petitioned for immediate discharge from probation. See Commonwealth v. Pagan, supra.
A judge held hearings on the defendant's motion and the Commonwealth's corresponding request for imposition of an extended probationary period. On February 4, 2011, the judge resentenced the defendant. As pertinent here, the judge vacated the CPSL component and imposed an additional five years of probation on the rape convictions together with a special condition of probation that included GPS monitoring. At that time, the judge also directed the probation officer to investigate the conditions of supervision in the defendant's group home placement to determine the continued necessity of GPS monitoring.
On April 7, 2011, the judge heard from the investigating probation officer and considered further the defendant's request to be relieved of the GPS monitoring requirement. The judge denied the defendant's motion, continued the GPS monitoring requirement, and directed the probation officer to speak further with officials in charge of the defendant's group home placement to determine whether the defendant's threats to leave the home were related to a specific frustration that had passed or were indicative of a more wide-ranging threat. With the acquiescence of defense counsel, the judge vested discretion in the probation officer to determine whether the defendant's actions were such as to warrant a release from the GPS monitoring requirement in the future.
1. The resentencing. The defendant argues that since he has already completed the original probationary period imposed at his initial sentencing, it was unlawful for the judge to impose an extended probationary period upon resentencing. He posits that the judge was constrained only to vacate the illegal CPSL component of his sentence. For substantially the reasons set forth in the Commonwealth's brief at pages six through eleven, we disagree.
The defendant's argument rests entirely on the erroneous premise that resentencing is analogous to a revocation of probation. Rather, when the judge vacated the CPSL portion of the sentence, he had the authority to revisit the entire sentence because “[t]he sentences imposed constituted an integrated package, each piece dependent on the other, which cannot be separated.” Commonwealth v. Renderos, 440 Mass. 422, 435 (2003). In keeping with this rationale, the resentencing judge is entitled to compensate for the loss of protection thought to be provided by CPSL by increasing the term of the defendant's probationary sentence. See Commonwealth v.. Leggett, 82 Mass.App.Ct. 730, 735–737 (2012) (vacating of sentencing scheme creates clean slate for resentencing subject to constitutional limits).
2. Imposition of a GPS requirement. The defendant argues that the imposition of GPS monitoring to his special conditions of probation was improper because it increased significantly, and without basis, the severity of the original probationary conditions. We reject this argument. The defendant erroneously views what transpired as a modification of a probationary condition rather than as a resentencing. When vacating an illegal sentence and imposing a new sentence, “judges are permitted considerable latitude.” Commonwealth v. White, 436 Mass. 340, 343 (2002). Here, as was permitted, the judge considered a variety of factors, including the defendant's conduct, character, and behavior following the original sentencing, and a clinical assessment of the risks he posed. Ibid. The judge viewed GPS monitoring as a necessary component of special conditions in a sentencing package that no longer included CPSL. We discern no abuse of discretion or other error of law in the judge's determination that GPS monitoring was required. See Commonwealth v. Leggett, supra at 736–737 (discussing standards applicable in resentencing context).
3. Continued need for GPS monitoring. Finally, the defendant maintains that the judge improperly delegated judicial authority by vesting in a probation officer the power to determine whether the defendant should continue to wear a GPS monitor. See Commonwealth v. McDonald, 50 Mass.App.Ct. 220, 222–223 (2000), S.C., 435 Mass. 1005 (2001). Were the case as the defendant states it, we would agree. Viewed in context, however, we construe the judge's ruling, to which defense counsel expressed her acquiescence, as nothing more than a procedure for determining whether the GPS monitoring requirement might be eliminated in the future. Indeed, to the extent the defendant might disagree with the probation officer's assessment, we discern no impediment to further judicial consideration of the continued need for GPS monitoring upon motion by the defendant.
Judgments affirmed.