Opinion
21-P-955
12-13-2022
COMMONWEALTH v. Robert ALMEIDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial in 2011, the defendant was found guilty of three counts of forcible rape of a child, indecent assault and battery on a child under the age of fourteen, witness intimidation, assault and battery, and assault and battery by means of a dangerous weapon. The judge sentenced the defendant to fifteen to twenty years in prison, to be followed by ten years of probation. The judge also imposed several conditions of probation, including global positioning system (GPS) monitoring. The defendant moved to vacate the GPS monitoring condition in 2020. A different judge (motion judge) denied the motion, reasoning that the government's need for GPS monitoring of the defendant outweighed the invasion of the defendant's privacy. We affirm.
The judge sentenced the defendant to fifteen to twenty years concurrently on the first two counts of forcible rape of a child and lesser concurrent terms on the other convictions.
Discussion. We review a judge's decision on a motion to vacate a condition of probation for abuse of discretion. See Commonwealth v. Roderick, 490 Mass. 669, 673 (2022). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The defendant claims the motion judge abused his discretion by not making an individualized determination of whether GPS monitoring was reasonable in the defendant's case, as required under Commonwealth v. Feliz, 481 Mass. 689 (2019). General Laws c. 265, § 47, requires that any person placed on probation for one of several enumerated sex offenses must wear a GPS monitor throughout the probation period. In Feliz, the Supreme Judicial Court held that art. 14 of the Massachusetts Declaration of Rights requires that judges applying § 47 "conduct a balancing test that weighs the Commonwealth's need to impose GPS monitoring against the privacy invasion occasioned by such monitoring." Feliz, supra at 691. In making this determination, "[c]ourts may consider a ‘constellation of factors,’ including, among others, the intrusiveness of the search; the defendant's particular circumstances, such as his or her criminal convictions, past probation violations, or risk of recidivism; and the probationary purposes, if any, for which the monitoring was imposed." Commonwealth v. Johnson, 481 Mass. 710, 719 (2019), quoting Feliz, supra at 701.
Here, the motion judge held a nonevidentiary hearing on the defendant's motion. The judge's memorandum of decision considered both the governmental interests at stake and the ways in which GPS monitoring invades a probationer's privacy. The judge considered the nature of the defendant's criminal convictions, which included forcible rape of a child in this case and other crimes of violence against children in prior cases. The judge also took account of the defendant's two prior probation violations. Lastly, the judge noted that the defendant's other probation conditions included staying away from the victim, avoiding unsupervised contact with minors, and avoiding employment or voluntary activities that would put him in contact with minors. The judge found that GPS monitoring would serve the probationary purpose of ensuring the defendant's compliance with these other conditions.
Contrary to the defendant's claim, the judge here conducted an individualized determination of the reasonableness of the GPS monitoring condition, as Feliz requires. See Feliz, 481 Mass. at 690-691. He considered the proper factors and concluded that the government's need for GPS monitoring justified the burden on the defendant's privacy during probation. See Johnson, 481 Mass. at 719. As such, the decision was within the range of reasonable alternatives and there was no abuse of discretion. See L.L., 470 Mass. at 185 n.27.
Order affirmed.