The defendant appealed an order that corrected his sentence by extending his probation period from 5 to 20 years and adding GPS monitoring conditions. The Appeals Court affirmed, finding that the resentencing judge acted within their discretion to fashion an appropriate individualized sentence in light of the vacated community parole supervision for life condition from the original plea agreement. While the defendant's probation was increased, the overall punishment was not, as he was now subject to a defined 20-year supervision period rather than lifetime supervision. The new sentence maintained the original intent of lengthy post-release oversight while providing the defendant additional procedural protections.

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As of: May 19, 2016 5:51 PM EDT
Commonwealth v. Andino
Appeals Court of Massachusetts
March 23, 2015, Entered
14-P-800
Reporter
2015 Mass. App. Unpub. LEXIS 230; 87 Mass. App. Ct. 1111; 26 N.E.3d 1141
COMMONWEALTH VS. 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 NOTEDABOVE, NOTAS BINDING PRECEDENT.
SEE CHACE V. CURRAN, 71 MASS. APP. CT. 258, 260 N.4, 881 N.E.2d 792 (2008).
PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.
PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.
Subsequent History: Appeal denied by Commonwealth v. Andino, 473 Mass. 1104, 2015 Mass. LEXIS 831
(2015)
Affirmed by, On reconsideration by Commonwealth v. Andino, 2016 Mass. App. Unpub. LEXIS 117 (Mass. App.
Ct., Feb. 8, 2016)
Disposition: Order allowing motion for resentencing affirmed.
Core Terms
sentence, probation, counts, supervision, original sentencing, monitoring
Judges: Cypher, Kantrowitz & Carhart, JJ. [*1]
Opinion
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
Heather LaCount

3. 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 [*2] 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 1.1
Pleas of guilty to counts 8, 9, and 10 were placed
on file with the defendant's consent.2
In 2006, following the Supreme Judicial Court decision in Commonwealth v. Pagan, 445 Mass. 161, 834 N.E.2d
240 (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).3
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."4
Discussion. In light of Pagan, the judge could resentence the defendant without violating double jeopardy
principles. See Commonwealth v. Cumming, 466 Mass. 467, 472, 995 N.E.2d 1094 (2013); Commonwealth v.
Parrillo, 468 Mass. 318, 321, 14 N.E.3d 919 (2014). The judge had wide discretion "to fashion an appropriate[,]
individualized sentence," Commonwealth v. Cole, 468 Mass. 294, 302, 10 N.E.3d 1081 (2014), quoting from
Commonwealth v. Mills, 436 Mass. 387, 399, 764 N.E.2d 854 (2002), while considering "the over-all scheme of
punishment employed by the [plea] judge," Commonwealth v. Simmons, 448 Mass. 687, 699, 863 N.E.2d 549
(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, 978 N.E.2d 563 (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 [*5] 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
1
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, 971 N.E.2d 250 (2012) (citations omitted), we consider the defendant to have received a
four-to-five-year committed sentence on count 7.
2
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 [*3] for that to occur."
3
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.
4
Crossed out on the order of probation conditions form is the sentence ordering the defendant [*4] to "wear a GPS or
comparable device in accordance with G. L. c. 265, § 47."
Page 2 of 3
2015 Mass. App. Unpub. LEXIS 230, *2
Heather LaCount

4. 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.5
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.
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, 799 N.E.2d 97
(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, 989 N.E.2d 859 (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, 773
N.E.2d 921 (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, [*7] 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.6
),
Entered: March 23, 2015.
5
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 [*6] the intent of the original sentence.
6
The panelists are listed in order of seniority.
Page 3 of 3
2015 Mass. App. Unpub. LEXIS 230, *7
Heather LaCount