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SJC-11753

COMMONWEALTH vs. GEORGE SALLOP.

Middlesex. March 5, 2015. - September 3, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Sex Offender. Community Parole Supervision for Life.

Constitutional Law, Sentence, Sex offender, Double 

jeopardy. Practice, Criminal, Sentence, Double jeopardy.

Indictments found and returned in the Superior Court 

Department on November 9, 2000.

A motion to vacate a condition of probation, filed on April 

9, 2013, was considered by Diane M. Kottmyer, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Iris Alkalay for the defendant.

Melissa Weisgold Johnsen, Assistant District Attorney, for 

the Commonwealth.

GANTS, C.J. In this appeal, we consider whether a newly

restructured sentence imposed on a defendant after he has 

successfully moved to vacate community parole supervision for 
2

life (CPSL) violates our double jeopardy doctrine. We conclude 

that, where a defendant sentenced to committed time on a 

conviction is resentenced to a term of probation, the new

sentence violates double jeopardy where the defendant already 

has completed the original sentence on that conviction before 

the resentencing. But where the defendant has yet to complete 

the original sentence on a conviction, resentencing to a term of 

probation does not violate double jeopardy, provided that the 

total length of incarceration imposed on the defendant for that 

conviction is not increased. Consequently, if the defendant's 

probation were to be revoked, the defendant may not be sentenced 

to a term of incarceration longer than the time remaining on his 

original uncompleted sentence.

Background. In 2002, the defendant, George Sallop, pleaded 

guilty to two indictments charging rape of a child with force 

(counts 1 and 2), one indictment charging assault and battery by 

means of a dangerous weapon (count 3), one indictment charging

open and gross lewdness and lascivious behavior (count 4), and 

two indictments charging assault and battery (counts 5 and 6). 

He was sentenced to concurrent committed terms as follows: on 

counts 1 and 2, from ten to fifteen years in the State prison; 

on count 3, from nine to ten years in the State prison; on count 

4, from two to three years in the State prison; and on counts 5 

and 6, two and one-half years in the house of correction. In 
3

addition, on count 1, the defendant was sentenced to CPSL to be 

served from and after his release.

After we held that the CPSL statute was unconstitutionally 

vague as applied to first-time sex offenders, Commonwealth v. 

Pagan, 445 Mass. 161, 162 (2005),1 the defendant moved to correct 

his sentences. In 2009, after the defendant had served 

approximately eight years in prison,2 a different judge3 vacated 

the sentence of CPSL on count 1. The judge also restructured 

the sentence by vacating the sentences of committed time on 

counts 3 and 4 and replacing those sentences with two concurrent 

terms of ten years of probation to run from and after the 

completion of his sentences on counts 1 and 2, with global 

positioning system (GPS) monitoring a condition of probation. 

At the time of his resentencing, the defendant had fully served 

his original sentence as to count 4 and had approximately two 

years remaining to the end date of his original sentence as to 

count 3.

 

1 We have since struck the community parole supervision for 

life (CPSL) statute in its entirety because it "violates our 

separation of powers doctrine, articulated in art. 30 of the 

Massachusetts Declaration of Rights, by improperly delegating to 

the parole board, an entity of the executive branch, the 

exercise of the judicial power to impose sentences." 

Commonwealth v. Cole, 468 Mass. 294, 295 (2014).

2 At the time of the original sentencing, Sallop received 

313 days of jail credit.

3 The original sentencing judge had retired.
4

The defendant moved to vacate and correct the revised 

sentence, arguing that the GPS condition was improper. That 

motion was denied. The defendant again challenged the GPS 

condition, this time in a motion to vacate conditions of 

probation. That motion was likewise denied. A panel of the 

Appeals Court affirmed the denial in a decision pursuant to its 

rule 1:28. See Commonwealth v. Sallop, 85 Mass. App. Ct. 1123 

(2014).

We granted the defendant's application for further 

appellate review, limited to an issue briefly addressed by the 

Appeals Court panel: the "propriety of resentencing the 

defendant by imposing a term of probation to run from and after 

committed sentences that either had been fully served at the 

time of the resentencing or will have been fully served before 

the probationary term is due to begin." Commonwealth v. Sallop, 

469 Mass. 1110 (2014).4 Although this was not an issue addressed 

in the order appealed from, we address it out of concern that an 

injustice might otherwise arise in these circumstances from a 

violation of double jeopardy.

 

4 As our limitation of the scope of further appellate review 

suggests, we are not reexamining the imposition of the probation 

condition of global positioning system (GPS) monitoring. The 

order denying Sallop's motion to vacate that condition stands as 

affirmed by the Appeals Court.
5

Discussion. The resentencing judge was not obligated 

merely to vacate the CPSL portion of the defendant's sentence, 

but was permitted to restructure the over-all sentence to 

provide a lengthy period of probation supervision in place of 

the parole supervision that would have been provided with CPSL, 

provided the sentence did not violate double jeopardy. See 

Commonwealth v. Cole, 468 Mass. 294, 310 (2014) ("The vacating 

of CPSL sentences permits the possibility of resentencing, 

except where barred by double jeopardy"). Under double jeopardy 

principles, the new sentence on a conviction must not "increase 

the 'aggregate punishment' imposed under the original sentence." 

Id., quoting Commonwealth v. Cumming, 466 Mass. 467, 468 (2013). 

In particular, double jeopardy principles bar resentencing on 

any conviction for which the defendant has already fully served 

his sentence. See Commonwealth v. Parrillo, 468 Mass. 318, 321-

322 (2014), citing Cumming, supra at 473-474 (remanding with 

instructions not to resentence defendant on convictions as to 

which sentence had been fully served); Cole, supra at 311 (where 

defendant already served original sentence, "any resentencing . 

. . necessarily would violate principles of double jeopardy").5 

 

5 The Commonwealth, relying on Commonwealth v. Leggett, 82 

Mass. App. Ct. 730, 734-738 (2012), disputes this proposition,

arguing that so long as the aggregate sentence arising from the 

sentencing scheme is not increased, a defendant has suffered no 

violation of double jeopardy even if he is resentenced on a 

conviction for which he has completed the original sentence. 
6

The defendant, as noted, had fully served his original sentence 

as to count 4 when the resentencing judge vacated that sentence

and replaced it with a ten-year term of probation. This 

necessarily increased his sentence on that count, violating 

double jeopardy principles.

As to count 3, the defendant had not fully served his 

original sentence at the time of resentencing; he had served 

approximately eight years on a sentence of from nine to ten 

years in prison. Resentencing therefore did not necessarily 

increase the defendant's punishment on this count. The 

resentencing judge, in her sound discretion, was permitted to 

impose a new sentence for count 3, so long as this did not

otherwise violate double jeopardy principles. See Parrillo, 468 

Mass. at 321; Cumming, 466 Mass. at 470-474 (upholding, with 

modification, imposition of ten years of probation in place of 

committed terms where original sentences were not completed at 

time of resentencing). The practical effect of the resentencing 

judge's decision as to count 3 was to replace the unserved 

portion of the defendant's sentence -- approximately one to two 

years in the State prison -- with ten years of probation. The 

 

However, as the Appeals Court more recently has recognized, "the 

breadth of [Leggett's] holding" is no longer governing law after 

Commonwealth v. Parrillo, 468 Mass. 318 (2014), Commonwealth v. 

Cole, 468 Mass. 294 (2014), and Commonwealth v. Cumming, 466 

Mass. 467 (2013), all issued after Leggett. Commonwealth v. 

Scott, 86 Mass. App. Ct. 812, 814-815 (2015).
7

resentencing judge was within her discretion to determine that 

this was consistent with the original sentencing scheme and that 

it did not increase the defendant's punishment as to count 3.

However, in Cumming, we recognized that the replacement of 

a CPSL sentence with a term of probation has the potential to 

increase the aggregate punishment imposed on a defendant if the 

defendant's probation were later revoked and the defendant were 

sentenced to a period of incarceration on that conviction that 

exceeds the time remaining on his original uncompleted sentence.6

See Cumming, 466 Mass. at 473-474. We noted that, whereas the 

statute prescribed certain limited periods of confinement for 

violating a condition of CPSL, see G. L. c. 127, §§ 133D (c), 

149, "a violation of the conditions of his probation might 

subject the defendant to incarceration for the maximum . . . 

sentence attributable to each of the underlying . . . offenses." 

Cumming, supra at 473. To avoid increasing the defendant's 

punishment "in the peculiar circumstances of" Cumming, we ruled 

that "the maximum period of incarceration to which the defendant 

may be subject for violating a condition of his probation is the 

period of time between the defendant's resentencing . . . and 

the ten-year maximum period of confinement remaining under the 

six- to ten-year sentences originally imposed on the indictments 

 

6 In its brief, the Commonwealth invites us to revisit this 

aspect of Cumming. We decline to do so.
8

on which he was resentenced." Id. at 474. The same "peculiar 

circumstances" are present in this case. Accordingly, the 

maximum period of incarceration to which the defendant may be 

subject for violating a condition of his probation on count 3 is 

the period of time between his resentencing on April 16, 2009,

and the ten-year maximum period remaining under the nine- to 

ten-year sentence originally imposed on count 3.

Conclusion. The order denying the defendant's motion to 

vacate the GPS condition of probation is affirmed for the 

reasons stated by the Appeals Court in its decision. The case 

is remanded to the Superior Court for resentencing consistent 

with this opinion. The original sentence on count 4, which the 

defendant has already fully served, shall be reinstated, and the 

probationary sentence on count 3 shall be amended to make clear 

that, if at any time during the probationary term the defendant

violates his probation and his probation is revoked, he may not 

be sentenced to a term longer than the time remaining as of his 

resentencing on April 16, 2009, until the end date of his nineto ten-year sentence originally imposed on count 3.

So ordered.