Com. v. Blaikie
| Decision Date | 24 January 1986 |
| Citation | 487 N.E.2d 856,21 Mass.App.Ct. 956 |
| Parties | COMMONWEALTH v. Kenneth R. BLAIKIE. |
| Court | Appeals Court of Massachusetts |
Kenneth R. Blaikie, pro se.
Robert J. McKenna, Jr., Asst. Dist. Atty. (Daniel P. Napolitano, Asst. Dist. Atty., with him), for the Com.
Before GREANEY, C.J., and DREBEN, and KASS, JJ.
RESCRIPT.
On September 3, 1980, a Suffolk County grand jury handed up an indictment charging the defendant with armed robbery. On November 7, 1980, a Suffolk County grand jury indicted the defendant on six more charges (including armed robbery, kidnapping, and armed assault with intent to rob) involved in three additional and separate criminal episodes. The defendant failed to appear in court to answer to the set of indictments handed up in November, i.e., he defaulted. He did not come into court until after he was arrested and incarcerated in Middlesex County on June 1, 1981, in connection with a further armed robbery. The incident in Middlesex resulted in two indictments returned in that county. Only three days earlier he had committed yet another armed robbery, for which a Suffolk County grand jury indicted him on September 23, 1981.
As to all these offenses the defendant ultimately pleaded guilty. He was sentenced to serve five to seven years at M.C.I., Walpole (now Cedar Junction), on each of the Middlesex indictments, the sentences to be served concurrently. In connection with those sentences, the judge ordered a credit of 113 days on account of time spent by the defendant in jail awaiting trial and during trial. See G.L. c. 279, § 33A, as appearing in St.1961, c. 75: "... the prisoner [shall] be deemed to have served ... the number of days spent by the prisoner in confinement prior to such sentence awaiting and during trial." See also G.L. c. 127, § 129B, which provides: "The sentence of any prisoner ... who was held in custody awaiting trial shall be reduced by the number of days spent by him in confinement prior to such sentence and while awaiting trial...."
This appeal is from the refusal of the sentencing judge sitting in Suffolk County to credit the defendant with the same 113 days which he literally spent in confinement in Middlesex county prior to his Suffolk sentences. There are eight Suffolk sentences, of which three are for nine to twelve years (three are eight to ten, and two are three to five) ordered to be served at M.C.I., Walpole, concurrently with the Middlesex sentences.
The governing principle in the application of G.L. c. 279, § 33A, which is addressed to the sentencing judge (G.L. c. 127, § 129B, is addressed to the Commissioner of Correction), is fair treatment of the prisoner. Commonwealth v. Grant, 366 Mass. 272, 275, 317 N.E.2d 484 (1974). Manning v. Superintendent, Massachusetts Correctional Inst. Norfolk, 372 Mass. 387, 396, 361...
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Commonwealth v. Holmes
...Id. at 395 n. 9, 361 N.E.2d 1299, quoting from Davis v. Attorney Gen., 432 F.2d 777, 778 (5th Cir.1970). Cf. Commonwealth v. Blaikie, 21 Mass.App.Ct. 956, 957, 487 N.E.2d 856 (1986) (“We perceive no special consideration of fairness which requires crediting the Suffolk sentences with time s......
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Commonwealth v. Holmes
...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 co......
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