MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2012, the defendant, Dwight D. Meyer, pleaded guilty to four counts of rape of a child, three counts of rape, one count of incest, and eleven counts of indecent assault and battery on a child over the age of fourteen. He received a sentence of committed time and probation. As a condition of his probation the defendant was required to be monitored by a global positioning system (GPS). In 2020, the defendant filed a pro se motion to amend or vacate special conditions of probation, specifically to remove the GPS requirement. Following a hearing, the defendants motion was denied and his subsequent motion to reconsider was also denied. The defendant now appeals the denial of the motion to amend or vacate and the motion to reconsider, arguing that the judge erred in denying his motion to amend or vacate where the judge did not make an individualized determination of reasonableness, pursuant to Commonwealth v. Feliz, 481 Mass. 689 (2019), before authorizing the GPS monitoring. We affirm.
Discussion. 1. Standard of review. Generally, we review a judges decision on a motion to modify the conditions of probation for an abuse of discretion. See Commonwealth v. Morales, 70 Mass. App. Ct. 839, 842, 846 (2007). “Just as judges have considerable discretion at sentencing in establishing the terms of probation, they also have the discretion to modify those conditions ‘as a proper regard for the welfare, not only of the defendant but of the community may require.’ ” Commonwealth v. Goodwin, 458 Mass. 11, 16 (2010), quoting Buckley v. Quincy Div. of Dist. Court Dept, 395 Mass. 815, 818 (1985). However, where, as here, the judges denial of the defendants motion was based on a constitutional determination -- that the imposition of GPS monitoring was a reasonable search under art. 14 -- we “review independently the motion judges application of constitutional principles.” Commonwealth v. Moore, 473 Mass. 481, 484 (2016), quoting Commonwealth v. Franklin, 456 Mass. 818, 820 (2010).
2. GPS monitoring. Relying upon Feliz, supra, the defendant requests that we vacate the imposition of the GPS monitoring as a condition of his probation.
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The initial condition of GPS monitoring was ordered in accordance with G. L. c. 265, § 47, which required GPS monitoring for defendants on probation who had been convicted of certain sex offenses, including the offense for which the defendant was convicted. In 2019, the Supreme Judicial Court in Feliz held, based on art. 14 of the Massachusetts Declaration of Rights, that before imposing GPS monitoring under G. L. c. 265, § 47, a judge must make an “individualized determination of reasonableness.” Feliz, 481 Mass. at 690-691. “In making this determination, courts must balance ‘the Commonwealths need to impose GPS monitoring against the privacy invasion occasioned by such monitoring.’ ” Commonwealth v. Johnson, 481 Mass. 710, 719 (2019), quoting Feliz, supra at 691.
Here, in light of Feliz, the defendant filed a pro se motion to vacate or amend the GPS requirement. After conducting a hearing, the judge denied the motion based on the particular facts relating to the defendant and the underlying offenses. In support of their opposition, the Commonwealth presented the judge with the facts relating to the charges to which the defendant pleaded guilty which included: that the defendant had raped his biological daughter on almost a daily basis beginning when she was approximately thirteen and one-half years old and continuing over the course of two and one-half years; the defendant threatened to kill the victim and himself if she ever told anyone
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; the victim warned her younger sister about the sexual assaults when she reached the same age the victim was when the abuse began; the victims younger sister told her that the defendant was leaving out pornography for her to see; when the victim asked the defendant not to hurt her younger sister the defendant laughed and asked, “[W]hy it wasnt so bad for you, was it?” The judge specifically found, “[g]iven the facts and circumstances of this case, GPS monitoring is necessary to ensure that the defendant does not contact the victim and refrains from unsupervised contact with other children.” In light of the fact that the defendants criminal convictions were all contact offenses involving his biological daughter, that he had exposed the victims younger sister to pornography, and the fact that he is generally aware of where the victim lives,
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the Commonwealths interest in imposing GPS monitoring on this defendant persists and outweighs the privacy intrusion occasioned by the probationary condition. See Johnson, 481 Mass. at 719-720. Contrast Feliz, 481 Mass. at 707-709. Accordingly, the defendants particular circumstances rendered the imposition of GPS monitoring as a condition of his probation reasonable.
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The defendant also argues that the judge erred in making a final determination on his motion to vacate or amend the probation requirement of GPS monitoring under Feliz, where the defendant informed the court at the end of the hearing, that he had petitioned for CPCS representation but had not received a response. However, where, as here, the defendant did not file a request with the court seeking the appointment of an attorney, did not object to proceeding pro se with the hearing on his motion, and did not raise the issue of representation in his motion to reconsider, the issue is waived. See Commonwealth v. Cote, 386 Mass. 354, 358 n.6 (1982) (issue not raised below is waived on appeal).
Orders denying motion to amend or vacate special probation condition and motion to reconsider, affirmed.
FOOTNOTES
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. The defendant also seeks a ruling by this court that the holding in Feliz must be applied retroactively. He contends that because Feliz addresses a constitutional determination prohibiting a certain category of punishment for a class of defendants based on their status or offense it must be given retroactive application. However, in light of the fact that the defendant received a hearing to determine whether the imposition of the GPS was particularized to him, we need not make such a ruling here.
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. The victim informed the police that the defendant always carried a handgun and had other guns in a safe. During a subsequent search of the defendants residence, the police recovered seventeen firearms, ammunition, and a Rambo 3 Bowie knife. (RA 96, 111)
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. The defendant testified as to the general area where he asserts the victim lives.
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. The defendant pursues no specific argument on appeal regarding the denial of his motion to reconsider.