What happens when a sentencing judge makes a legal error that benefits the defendant, and the error goes unnoticed for almost one year? In Commonwealth v. Selavka, the Supreme Judicial Court ruled last week that too much time had passed for the sentencing judge to fix the mistake, and the defendant was entitled to serve the more favorable (and illegal) sentence.
Fifteen months after child pornography was discovered on his computer, the defendant pled guilty to 11 counts of possession of child pornography. He was sentenced to serve one year in jail and was to be on probation when he was released. Massachusetts law requires that he be monitored by a GPS device while serving his probation for a sex offense. At the time of the defendant’s sentencing, the prosecutor did not seek GPS monitoring and the judge did not impose the condition. The defendant served his entire jail sentence and while he was on probation, the prosecutor returned to court and asked the judge to impose the GPS monitoring, arguing that it should have been imposed when the defendant was sentenced. The sentencing judge agreed and ordered that the defendant be subject to GPS monitoring as a condition of his probation. The defendant appealed and argued that the additional condition of probation, added almost one year after he was sentenced, violated double jeopardy by punishing him twice for the same crime. The Supreme Judicial Court agreed with the defendant and vacated the condition that he be monitored by GPS.
The Court first acknowledged that the original sentence imposed against the defendant by the trial judge was illegal for its failure to include the GPS monitoring. The Court went on to say that a sentencing judge does have the authority to correct illegal sentences, but he or she must do so within 60 days of the sentence being imposed. Allowing a sentence to be amended after 60 days would cause a defendant to “live in a constant state of anxiety and insecurity.” The Court ruled that a defendant has a legitimate expectation of finality in the sentence he receives, even if the sentence is illegal. Therefore, the Court concluded, “the belated imposition of GPS monitoring on the defendant violated the principle of finality and constituted an impermissible multiple punishment.” Adding additional terms to a sentence following the 60-day period will constitute double jeopardy and will be prohibited.
This important decision places the Commonwealth on equal footing as the defendant. The defendant can typically challenge his sentence only within 60 days of its imposition by filing a motion to revise and revoke his sentence. There are strict limits on the circumstances in which a judge can change a sentence pursuant to a defendant’s motion to revise and revoke. The sentencing judge must find that there was information that existed at the time of the sentencing that was not presented to the court and that would have caused the court to impose a different sentence. Therefore, the defendant’s post-sentence conduct cannot be considered as a basis to reduce or change the terms of a sentence. In any event, with respect to the time limits of filing such a motion, it’s reasonable that the prosecutor be required to be bound by the same 60-day deadline as the defendant.