Commonwealth v. Holmes

Berry, J.

(dissenting, with whom Kantrowitz, J., joins). This *745 case presents the important question whether a defendant who is currently serving a sentence must receive an immediate day-for-day credit against that sentence when an earlier, unrelated conviction, as to which the defendant had already completed his sentence prior to the commission of the crime for which he is currently serving his sentence, is vacated. I do not believe the answer to this question reached by the majority is supportable. Accordingly, I dissent.

Furthermore, the unintended consequence of the majority’s interpretation will be to encourage recidivists to file new trial motions years after the fact 1 in the hope of vacating earlier convictions as to which sentences have already been served in the hope of then unearthing a line of credit against a sentence being served for a subsequent and unrelated offense (with a substantial prospect, as here, for trading house of correction time for State prison time).

In this case, the defendant seeks to receive an immediate credit against two concurrent twelve-year State prison sentences for 2003 firearm convictions on account of the vacating (in 2006) of a 1997 drug conviction for which the defendant had already completed his two-year house of correction sentence in 1999, 2 prior to committing the firearm offenses. The defendant committed the firearm offenses in October, 2002, at a time when he had fully served the 1997 drug-conviction sentence in *746 the house of correction and had been released to society. Specifically, on January 11, 2003, a four-count indictment issued charging that the defendant, on or about October 30, 2002, unlawfully possessed a firearm without a firearm identification card, in violation of G. L. c. 269, § 10(h) (count 1), with an enhancement count for having three prior convictions of violent crimes or serious drug offenses, in violation of G. L. c. 269, § 10G(c) (count 2), as well as unlawful possession of a firearm without a license, in violation of G. L. c. 269, § 10(a) (count 3), again with an enhancement count under G. L. c. 269, § 10G(c) (count 4).

In 2005, eight years after his drug conviction and about five years after the completion of the drug-conviction sentence, the defendant moved to withdraw his guilty plea. As the basis for the plea withdrawal motion, the defendant contended that his trial counsel was ineffective in not filing a motion to suppress the drugs found on the defendant because the tip from a confidential informant did not have sufficient corroboration to support reasonable suspicion. However, the record before us has no explanation by the District Court judge of the reasons why the judge allowed the defendant’s plea withdrawal, and no information concerning the reasons for vacating the guilty plea and dismissing the complaint with prejudice.

In 2011, while still incarcerated on the twelve-year sentences for the 2003 firearm convictions, the defendant filed a motion seeking credit for time served on the just described vacated 1997 drug conviction. As previously noted, a Superior Court judge denied the motion, and this appeal followed.

Accepting the defendant’s argument, the majority concludes that the jail credit statutes entitle the defendant to a full day-for-day credit of his vacated 1997 drug-conviction sentence against his State prison sentence for the 2003 firearm convictions. 3 Relying largely on Manning v. Superintendent, Mass. Correc *747 tional Inst., Norfolk, 372 Mass. 387 (1977) (Manning), the majority reasons that, unless the defendant receives a credit, it would be unfair because the defendant would have “dead time.”* ** 4 I do not believe that Manning supports the construct that vacating the 1997 drug conviction makes its sentence dead time for which the defendant is entitled to an immediate credit. Indeed, Manning is to the contrary. As Manning stated, “[a]n allowance for prison time previously served under a void commitment does not reduce sentences imposed as a result of new and different crimes.” Id. at 395 n.9, quoting from Davis v. Attorney Gen., 432 F.2d 777, 778 (5th Cir. 1970). Cf. Commonwealth v. Blaikie, 21 Mass. App. Ct. 956, 957 (1986) (“We perceive no special consideration of fairness which requires crediting the Suffolk sentences with time spent in confinement awaiting sentence on the unrelated Middle-sex offenses”). “A prisoner does not generally receive credit for jail time served for an unrelated offense.” Commonwealth v. Carter, 10 Mass. App. Ct. 618 , 620 n.4 (1980). 5 See Williams v. Superintendent, Mass. Treatment Center, 463 Mass. 627, 631 (2012) (Williams). In this case, the drug charge underlying the defendant’s 1997 conviction is wholly unrelated to, and bears no factual or temporal relation to, the later firearm offenses underlying the 2003 convictions.

The defendant contends that prohibited “banking” (see note 4, supra) of time served did not exist here because the time line reflects that the October, 2002, criminal acts (underlying the *748 2003 firearm convictions) were committed prior to the vacating of (and prior to the defendant’s knowledge of the vacating of) the 1997 drug conviction in May, 2006. However, this is not a correct time marking for banking vis-a-vis future criminal conduct. Rather, it is the date of the commission of the unrelated crime in the future that is the central entry on the time line, not the date of, or the effect of, the defendant’s knowledge concerning the potential of a vacated sentence on an unrelated prior offense.

Just because the defendant did not know at the time of his future, unrelated criminal conduct in October, 2002, that his plea withdrawal motion would be allowed four years later in 2006, that does not give the defendant the benefit of the time served on the prior, unrelated 1997 drug conviction. To the contrary, what the defendant wants to do is draw down on a 1997-1999 jail-time-served/banked-jail-time credit-line, as an offset to a later sentence imposed for the later committed, unrelated firearm convictions. And, that is precisely what Manning and Commonwealth v. Milton, 427 Mass. 18, 24-25 (1998) (Milton) reject. To allow credit for the time served on the unrelated 1997 drug conviction to reduce the sentences imposed for the future 2003 firearm convictions would, in effect, render to the defendant “a license to commit future criminal acts with immunity.” Id. at 25 .

The procedural background in Milton illustrates why the defendant in the present case is not entitled to credit for time served on the vacated conviction. In November, 1993, the Milton defendant was found guilty of various assault and battery and disorderly conduct charges for which he was sentenced to two terms of one year and one term of six months, all concurrent. Id. at 19 . The sentences were suspended, and the defendant was placed on two years’ probation. Ibid. Then, in January, 1994, the Milton defendant was arrested for armed robbery and held in lieu of bail. Ibid. In March, 1995, the armed robbery charge was reduced to unarmed robbery, and the Milton defendant was acquitted on that reduced charge. Ibid. Six months later, in September, 1995, the Milton defendant was charged with disorderly conduct. Id. at 20 . A probation violation notice issued, and in November, 1996, the Milton defendant was found *749 to have violated his probation on the original November, 1993, conviction. Ibid. The Milton defendant argued that he was entitled to credit on the resulting probation surrender sentence for the time that he had spent incarcerated while awaiting trial for the January, 1994, robbery charge, for which he was ultimately acquitted. The Supreme Judicial Court held to the contrary; it stated that “the defendant is not entitled to receive credit for time he served awaiting trial on the robbery charge, to reduce the sentence imposed as the result of a crime he committed six months after his acquittal and discharge on the robbery charge.” Id. at 25 .

In a process of alchemy, the defendant seeks to reconfigure the vacated 1997 drug-conviction sentence into so-called dead time, so that he can use the time that he served on that sentence, nunc pro tune, as a line of credit for the later sentences on the 2003 firearm convictions. This, to me, strikes against the rationale of Manning , as well as Milton . Indeed, Milton states that “the need to prevent criminal defendants from ‘banking time’ for use against future sentences outweighs any fairness issues normally applicable in [dead time] situations.” Id. at 25 .

Here, the defendant contends that it would be unfair for him to lose jail time credit and cites language in Williams, 463 Mass. at 632 , which states, “[W]here possible, in the interest of fairness, a prisoner should not be required to serve ‘dead time.’ ” But, in asserting this fairness demand, the defendant ignores the counterbalance set up in Williams , which is that, “[w]hen faced with a request for jail time credit regarding unrelated offenses,” the avoidance of dead time is merely one consideration. Ibid.

The overarching consideration, which tips the balance against the purported “fairness” of this defendant getting jail time credit, is that criminal defendants not “establish[] a line of jail time credit that can be applied to future offenses.” Id. at 631 . This counterbalancing consideration negates this defendant’s fairness argument, as Manning, 372 Mass. at 395-396 , and Milton, 427 Mass. at 25 , indicate.

Finally, I note that, in support of its fairness analysis, the majority cites a series of cases from various Federal and other State jurisdictions to support the proposition that credit is due in this case. See ante at notes 13-15, and accompanying text. How *750 ever, the cases cited and quoted from are quite distinguishable from the present case, as each involves a scenario where the defendant had two or more consecutive sentences, one of which was declared invalid while the defendant was still incarcerated. 6 This is not the issue here. Simply put, these cases do not address situations, like the present case, where a defendant seeks to credit time previously served against a current, nonconsecutive or non-concurrent sentence.

Unlike the cases that the majority cites — see, in particular, the heavy reliance on Federal cases, ante at 743-744 — this case does not involve consecutive “from and after” or concurrent sentences. Indeed, consecutive sentences — which are not present here — were central to the analysis in Manning, where the court determined that the time served on a series of invalidated concurrent sentences should be credited against a successive “from and after” sentence. See Manning, 372 Mass. at 388-389, 396 . However, the vacating of an entirely unrelated conviction does not, I submit, immediately render the sentence dead time as to which a credit is in order. (As to the term “dead time,” see note 4, supra.) As stated in Manning , “[a]n allowance for prison time previously served under a void commitment does not reduce sentences imposed as a result of new and different crimes.” Id. at 395 n.9, quoting from Davis v. Attorney Gen., 432 F.2d at 778.

A new trial motion may be filed at any time under Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 636 (2001). Further, there is no limit on the number of new trial motions a defendant may file or the points of attack, both substantive and procedural, that a defendant may advance in an effort to vacate a prior conviction. For example, such new trial motions may raise claims under Commonwealth v. Saferian, 366 Mass. 89 (1974) (ineffective assistance of counsel — which, by the way, was the basis for the vacating of the 1997 drug conviction in this case). To extrapolate further: Were a new trial motion to be granted in certain cases, and were there no prosecution that ensued thereafter leading to a nolle prosequi — for whatever reason, perhaps because of evidence being tainted or lost, including, but not limited to, drug evidence — then, under the defendant’s theory, as accepted by the majority, would jail credit be available for other future unrelated offenses?

In November, 1997, the defendant was charged with possession of a class B substance with intent to distribute. G. L. c. 94C, § 32A. On December 5, 1997, the defendant pleaded guilty and was sentenced to serve two years in a house of correction (the 1997 dmg conviction).

The indictments for the October, 2002, firearm offenses, which were entered on January 13, 2003, included statutory sentencing enhancements based on three prior violent crimes or serious drug offenses under G. L. c. 269, § 10G(c). The mandatory minimum under § 10G(c) is fifteen years in State prison. The mandatory minimum under G. L. c. 269, § 10G(bn), for two violent crimes or serious drug offenses, is ten years in State prison. As a result of plea negotiations, the defendant pleaded guilty to the firearm charges, and *747 as part of the plea deal, the enhancement charges were reduced from three to two prior convictions. See G. L. c. 269, § 10G(b). The sentencing enhancements in § 10G(b) are based on two, rather than three, prior violent crimes or serious drug offenses, and the defendant thereby avoided the fifteen-year mandatory § 10G(c) minimum sentence.

The terms “banking” and “dead time” are used in various and sometimes incongruous contexts in the case law. In a sense, neither term exactly fits this case. Rather, what is at issue here is not, strictly speaking, banked or dead time, but whether the jail credit statutes and case law mandate an immediate credit against a sentence a defendant is currently serving when a previous, unrelated conviction and sentence is later vacated, for whatever reason. Notwithstanding the semantic issue, I will follow the terminology in this dissent.

Not implicated in this case is the rule concerning time held on bail pending trial that “defendants have a right to have their sentences reduced by the amount of time they spend in custody awaiting trial.” Commonwealth v. Harvey, 66 Mass. App. Ct. 297, 299-300 (2006). See G. L. c. 279, § 33A.

For instance, the majority cites and discusses, ante at 743-744 & nn. 14-15, the following cases: Tucker v. Peyton, 357 F.2d 115, 116-117 (4th Cir. 1966); Meadows v. Blackwell, 433 F.2d 1298, 1299 (5th Cir. 1970); Goodwin v. Page, 418 F.2d 867, 868 (10th Cir. 1969); Vellucci v. Cochran, 138 So. 2d 510, 511-512 (Fla. 1962); Jackson v. Jones, 254 Ga. 127, 128 (1985); Calvin v. Missouri Dept. of Corrections, 277 S.W.3d 282, 283 (Mo. App. 2009); State v. Smith, 267 N.C. 755, 756 (1966). Indeed, in reference to the opinion of the United States Court of Appeals for the Tenth Circuit in Goodwin v. Page, supra, the majority emphasizes the “strong[] language” the court uses to condemn the State’s attempted denial of credit. See ante at note 15. Yet, the holding in Goodwin v. Page applies to consecutive sentences — one of which had been vacated — and has no bearing on the procedural situation at issue here.