Commonwealth v. Holmes

• Citation: 83 Mass.App.Ct. 737,989 N.E.2d 545
• Decision Date: 03 October 2013
• Docket Number: No. 12–P–59.,12–P–59.
• Parties: COMMONWEALTH v. Marlon HOLMES.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 737

989 N.E.2d 545

COMMONWEALTH

v.Marlon HOLMES.

No. 12–P–59.

Appeals Court of Massachusetts,

Hampden.

Argued Jan. 30, 2013.

Decided June 14, 2013.

Further Appellate Review Granted Oct. 3, 2013.

Marlon Holmes, pro se.

Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, C.J., CYPHER, KANTROWITZ, BERRY, & GRAINGER, JJ. ¹

GRAINGER, J.

The defendant appeals from the denial of his motion for credit for two years he spent incarcerated on a prior sentence that was subsequently reversed. We reverse the denial of his motion.

Background. As with most sentencing disputes, a specific chronology is useful to clarify the issues. On November 15, 1997, the defendant was charged with possession with intent to distribute a class B substance, in violation of G.L. c. 94C, § 32A. On December 5, 1997, he pleaded guilty and was sentenced to serve two years in the Hampden County house of correction (the 1997 conviction). The defendant completed this sentence and was released in late 1999.

Three years later, on October 30, 2002, the defendant was arrested; he was subsequently charged with two counts of unlawful possession of a firearm and two subsequent offender counts. He pleaded guilty on July 15, 2003, and was sentenced to a term of twelve years to twelve years and one day to be served at the Massachusetts Correctional Institution at Cedar Junction (the 2003 convictions).

On October 17, 2005, while still incarcerated for the 2003 convictions, the defendant moved to withdraw his 1997 guilty plea on the basis of ineffective assistance of counsel.² On May 17, 2006, a District Court judge allowed the motion. The defendant's motion to dismiss the 1997 complaint with prejudice was later allowed.

The defendant then filed a motion seeking credit for the time he served on his sentence for the 1997 conviction. His motion was denied on December 2, 2011.

Discussion. Our law recognizes that time served under a vacated sentence should be credited against a valid one, “for only in this way can a prisoner receive credit, not as matter of grace, but as of right, for time served under an erroneous conviction.” Brown v. Commissioner of Correction, 336 Mass. 718, 721, 147 N.E.2d 782 (1958)( Brown ).³

The motion judge based her denial of the defendant's motion to receive credit for this “dead time” ⁴ on an error of fact, one which the Commonwealth has properly conceded. She ruled that this defendant sought credit to be applied against a subsequent sentence that “was not ‘for an offense committed before the reversal’ ” of his first conviction, citing Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387, 396, 361 N.E.2d 1299 (1977)( Manning ). Accordingly, she concluded that the prohibition against “banking” time was triggered in this case as the defendant could have been encouraged to engage in criminal activity knowing that he had already served the sentence which might result. But this was simply incorrect. The record shows that the defendant's 2003 convictions, for offenses committed a year earlier in 2002, were already three years in the past when his 1997 conviction was vacated in 2006. The ruling below was based on clear error.

Notwithstanding the basis on which the judge ruled, the Commonwealth advances alternative grounds, still reliant on a claim of “banking,” to preserve the result. We conclude however that banking is not implicated by these facts, and that denial of credit in this case is contrary to the principle of fairness on which our cases are based.⁵

The concept of “banking” has been demarcated by the Supreme Judicial Court, and has been expressly limited to exclude the facts of this case:

“[I]t is not our intention to grant prisoners license to commit future criminal acts with immunity.... Such concerns are not appropriate here.... Credit allowed when the subsequent conviction is for an offense committed before the reversal of the first sentence in no way permits credit for future criminal acts” (emphasis supplied).

Ibid.

The application of “banking” as an exception to the otherwise straightforward concept of credit for improper incarceration has been subjected, more recently, to some semantic confusion in our decisions: the term “discharge,” referring to the crucial point in time when a conviction is reversed, has been conflated to signify release from confinement. Compare Commonwealth v. Milton, 427 Mass. 18, 25, 690 N.E.2d 1232 (1998), with Milton v. Commissioner of Correction, 67 Mass.App.Ct. 253, 257, 853 N.E.2d 557 (2006).⁶ That confusion appears to be the basis here for the Commonwealth's assertion that this defendant was “banking” time, even though the reversal of his first conviction occurred long after the beginning of his second confinement.

The Commonwealth argues, notwithstanding the judge's error, that credit for dead time is unavailable here because the defendant was “discharged,” that is, released from prison, before his subsequent conviction. ⁷ Release from confinement because an improperly awarded sentence has been completed, however, is wholly irrelevant to the issue of banking. ⁸ Banking turns on one factor: commission of an offense with knowledge that a sentence previously served has been judged improper. The location of a defendant, in prison or out, at the time the critical knowledge is acquired has no bearing whatsoever on the purpose underlying the banking exception: discouraging individuals from committing future crimes. Moreover, the contrary approach has the unintended result of denying credit in those cases where the improper deprivation of liberty was greatest—an entire sentence served for an erroneous conviction, rather than one fortuitously interrupted by reversal in medias res.

An additional confusion in the consideration of dead time is also manifested in this case: the importation of the concept of a “related” crime where that issue has no relevance. The Legislature has mandated that defendants receive sentencing credit for time spent in pretrial confinement on the same offense. G.L. c. 127, § 129B. G.L. c. 279, § 33A. This requirement, also straightforward in concept, becomes muddled when an individual already serving time is indicted for another offense, and claims to be in pretrial confinement on the new charge (thus entitled to credit) while simultaneously serving a separate sentence. Our cases have sensibly rejected such claims, in part because the “unrelated” nature of the two offenses makes it clear that the prisoner would have been in custody regardless of the fact that he was also awaiting trial. See, e.g., Needel, petitioner, 344 Mass. 260, 261–262, 182 N.E.2d 125 (1962); Libby v. Commissioner of Correction, 353 Mass. 472, 475, 233 N.E.2d 200 (1968).⁹ See also Commonwealth v. Foley, 17 Mass.App.Ct. 238, 244, 457 N.E.2d 654 (1983) (noting that since passage of G.L. c. 279, § 33A, the only decisions denying credit for unrelated convictions are those in which double credit was sought).

These statutory claims are misapplied when utilized in cases, such as this one, where pretrial confinement is not at issue.¹⁰Their importation has led to the converse assumption that the right to dead time credit can only be invoked, regardless of circumstance, if two crimes are “related.” This approach has been rejected by the Supreme Judicial Court in Commonwealth v. Milton, 427 Mass. 18, 690 N.E.2d 1232, a case involving pretrial confinement followed by an acquittal, followed in turn by another offense: “In some circumstances, a defendant may be allowed to credit time in an unrelated case if necessary to prevent a defendant from serving ‘dead time.’ ” Id. at 24, 690 N.E.2d 1232 (discussion, in dictum, of pretrial confinement credit statutes where “banking” exception to dead time dispositive to outcome). See Commonwealth v. Foley, supra (rejecting argument that defendant not entitled to credit for dead time because charges are “unrelated”), overruled on other grounds, Commonwealth v. Amirault, 415 Mass. 112, 117 n. 9, 612 N.E.2d 631 (1993), and Commonwealth v. McLaughlin, 431 Mass. 506, 519, 729 N.E.2d 252 (2000).¹¹ The Supreme Judicial Court has made clear that “the better and more humane view” provides credit for time served on an invalidated conviction against a sentence for an unrelated credit. Brown, 336 Mass. at 721, 147 N.E.2d 782.

Because the potential variations in sequence and in chronological relation among two or more charges, convictions, confinements, sentences, and reversals are countless, our analysis in a particular case should not be diverted from “the court's evident and overriding concern ... that a prisoner receives credit as a matter of right for time served under an erroneous conviction.” Gardner v. Commissioner of Correction, 56 Mass.App.Ct. 31, 38, 775 N.E.2d 426 (2002) (noting that “the fundamental principle underlying decisions in this area is ‘fair treatment of the prisoner.’ Commonwealth v. McLaughlin, [ supra at 515, 729 N.E.2d 252], quoting from Commonwealth v. Grant, 366 Mass. 272, 275 [317 N.E.2d 484 (1974) ]”). See Lewis v. Commonwealth, 329 Mass. 445, 448, 108 N.E.2d 922 (1952); Chalifoux v. Commissioner of Correction, 375 Mass. 424, 427, 377 N.E.2d 923 (1978); Lynch, petitioner, 379 Mass. 757, 758, 400 N.E.2d 854 (1980); Commonwealth v. Maldonado, 64 Mass.App.Ct. 250, 251, 832 N.E.2d 690 (2005).¹²

The majority of other State and Federal courts agree with the general principles enunciated in Brown, 336 Mass. 718, 147 N.E.2d 782, and Manning, 372 Mass. 387, 361 N.E.2d 1299,¹³ namely, a prisoner should receive full credit for time served on an invalidated sentence toward a subsequent, unrelated sentence so long as concerns regarding banking (properly defined) or double counting are not present.¹⁴

The Federal Circuit Courts of Appeals have also reviewed this issue, invariably in the context, stated or implicit, that the due process clause of the Fourteenth Amendment requires credit for...