Gardner v. Commissioner of Correction

• Decision Date: 20 September 2002
• Docket Number: No. 99-P-1492.,99-P-1492.
• Citation: 775 N.E.2d 426,56 Mass. App. Ct. 31
• Court: Appeals Court of Massachusetts
• Parties: Richard E. GARDNER v. COMMISSIONER OF CORRECTION.

Page 426

775 N.E.2d 426

56 Mass. App. Ct. 31

Richard E. GARDNER v. COMMISSIONER OF CORRECTION.

No. 99-P-1492.

Appeals Court of Massachusetts, Suffolk.

Argued October 16, 2001.

Decided September 20, 2002.

David Slade, Boston, for the defendant.

Catherine J. Hinton, Boston, for the plaintiff.

Present: LENK, COWIN, & McHUGH, JJ.

LENK, J.

The difficulty confronting the plaintiff, Richard Gardner, is one peculiar to those who serially violate the laws of multiple jurisdictions. In this appeal, we are asked to determine the effect, if any, of the reversal of an out-of-State conviction upon prison sentences imposed by Massachusetts courts, where the Massachusetts sentences were expressly ordered to be served "from and after" the out-of-State sentences then being served and which were later reversed.

Background. On July 30, 1988, Gardner was arrested and held in Rhode Island in connection with a series of child kidnappings that had occurred in the Warwick area. On May 31, 1989, after being convicted of a number of charges,¹ he was sentenced by a Rhode Island Superior Court judge to a total of 190 years. Thereafter, in 1989 and 1991, Gardner was sentenced in separate Massachusetts proceedings to prison terms set to begin from and after any sentence presently being served.² At the time these Massachusetts sentences were imposed, Gardner was serving the 190-year Rhode Island sentence.

In November, 1992, the Rhode Island Supreme Court reversed Gardner's convictions in that jurisdiction. See State v. Gardner, 616 A.2d 1124 (R.I.1992). Gardner remained in the custody of Rhode Island³ and, on remand for a new trial in early 1993, he immediately pleaded guilty to the same offenses undergirding the prior Rhode Island convictions and was sentenced to a shorter term of, in essence, fifty years, with thirty years to serve. The effective date of the new sentences was the same as that of the prior 190-year sentence, July 30, 1988, thus effectively crediting Gardner with the time he had served both awaiting retrial and under the prior sentence. During the sentencing hearing, the Rhode Island judge declared that the new sentences he imposed were to be served "concurrent" with each other and with the Massachusetts sentences he apparently thought Gardner was then serving. The Commonwealth was not represented at, nor did it participate in, this hearing.

From July 30, 1988, until the present, Gardner has remained in the lawful custody of the State of Rhode Island. See note 3, supra. In March, 1993, the Commonwealth notified Gardner that it did not recognize the Massachusetts and Rhode Island sentences as running concurrently, thereby conveying its view that he was not then serving time on the Massachusetts sentences, which it maintained had not yet commenced. Also in March, 1993, the Commissioner of Correction (commissioner) rejected an offer from the Rhode Island Department of Corrections to transfer Gardner to Massachusetts under the terms of the New England Interstate Corrections Compact, St.1962, c. 753, in exchange for one Massachusetts prisoner.

Procedural posture. After receiving notice of the Commonwealth's position, Gardner filed suit for declaratory and other relief against the commissioner. He claimed that, under Massachusetts decisional law, his Massachusetts "from and after" sentences automatically commenced upon their imposition in 1989 and 1991 once the initial Rhode Island conviction was reversed, and that he is entitled to credit against the Massachusetts sentences for time he has served since 1989 and continues to serve in Rhode Island.⁴ He also claimed that the denial of credit in contravention of clear authority was arbitrary and unjustified, amounting to a violation of his right to procedural due process and entitling him to attorney's fees and costs under 42 U.S.C. § 1988 (1994). On cross motions for summary judgment involving stipulated facts, the trial court judge agreed with Gardner in both respects and allowed his motion. The commissioner timely appealed, claiming that Gardner's Massachusetts sentences have yet to commence and that he is therefore not entitled to any credit for time served in Rhode Island.

Analysis. Gardner bases his claim entirely upon two cases, Brown v. Commissioner of Correction, 336 Mass. 718, 147 N.E.2d 782 (1958) (Brown), and Manning v. Superintendent Mass. Correctional Inst., Norfolk, 372 Mass. 387, 361 N.E.2d 1299 (1977) (Manning). He maintains that these two cases establish a bright-line rule to the effect that, whenever a "sentence presently serving," i.e., anchor sentence, is set aside because the conviction supporting it is reversed, the sentences that are to be served from and after it will automatically commence and will be deemed to have begun as of the dates of their imposition. Under these holdings, he argues, it is of no consequence whether or not the prisoner would suffer "dead time"⁵ absent credit being given for the time already served under the invalid anchor sentence. The commissioner, in contrast, takes the view that Brown and Manning are not controlling, contending that the two cases do not establish a bright-line rule and are distinguishable on their facts.

Gardner's position, with which the judge agreed, is quite understandable if Brown and Manning are read in isolation. In Brown, the "from and after" sentences were imposed a few months after the original anchor sentences in 1952. In 1957, the anchor convictions on which Brown was then serving time were reversed on appeal and, on remand, Brown pleaded guilty and was sentenced to probation. The issue was when the "from and after" or consecutive sentences that Brown was then serving had begun to run. The court determined that Brown's "from and after" sentences began to run, not on the date the anchor convictions were reversed, but on the earlier date when the "from and after" sentences were first imposed. Brown, supra at 719, 147 N.E.2d 782. In Manning, the issue presented was whether the prisoner was entitled to credit against the "from and after" sentence he was then serving for time he had served on earlier anchor convictions, where the anchor convictions were reversed on appeal and the prisoner, on remand, pleaded to a lesser charge and received a suspended sentence. Manning, supra at 388-389, 361 N.E.2d 1299. The court observed that it could find nothing of record to permit the conclusion that, by virtue of the imposition of a suspended sentence on remand, credit had already been given for time served, and allowed the prisoner credit to avoid the dead time he would otherwise have served. Id. at 394-395, 361 N.E.2d 1299.

Gardner contends that Brown and Manning establish a rule mandating that a "from and after" sentence be deemed automatically to have commenced as of the date of its imposition whenever an anchor conviction is reversed on appeal. We think, however, that a careful reading of the two cases and subsequent case law does not support the existence of so sweeping a rule.

As an initial matter, Brown and Manning were decided on facts quite different from those present here. First, unlike here, it was undisputed that the prisoners in Brown and Manning were serving their respective "from and after" sentences at the time they brought declaratory actions. The question in Brown was the date on which the "from and after" sentences had begun, while in Manning the question was the computation of credit against that "from and after" sentence for time the prisoner had already served before its imposition. See Manning, supra at 393-394, 361 N.E.2d 1299. These questions arose because each prisoner had served time under anchor convictions that were reversed on appeal and, upon remand and resentencing, was not required to serve any further time in connection with those convictions. Had the prisoners not been accorded relief in the form of crediting time already served on the invalid anchor convictions against the "from and after" sentences, they would have served time in prison, deprived as they were of their liberty, and would have received no credit at all — a result understandably thought repugnant by the court. In Brown, the device for assuring credit was to move back the starting date of the "from and after" sentences to the date they had initially been imposed. See Brown, supra at 721, 147 N.E.2d 782; Manning, supra at 393, 361 N.E.2d 1299. In Manning, that devicelzdid not suffice, and credit was given for time served before the date the consecutive sentence was imposed but after the arrest and indictment underlying that conviction. See id. at 391, 361 N.E.2d 1299. In contrast, here, Gardner upon remand and resentencing was required to serve a lesser but still substantial term of years, and he received credit against that lesser sentence for all the time he had previously served. He does not face the prospect of having served dead time.

A second material difference between Gardner's circumstances and those in Brown and Manning is that, in those two cases, the court addressed the effects upon Massachusetts "from and after" sentences following the reversal on appeal by a Massachusetts court of Massachusetts anchor sentences.⁶ Neither case had occasion to address the jurisdictionally nuanced situation here, viz., the claimed effects upon Massachusetts consecutive sentences anchored to a foreign State's sentence, where that anchor sentence is later set aside and, upon reprosecution, the foreign State's court imposes a sentence predicated upon ththcourt's determination that the Massachusetts sentences have already commenced to run.⁷

That materially different facts prompted the relief granted in Brown and Manning is not something to which we may turn a blind eye. Read with attention to their facts and as subsequently construed by our case law, we disagree with Gardner's contention that Brown and Manning establish a mechanistically applicable rule that a "from and after" sentence commences...