Manning v. Superintendent, Massachusetts Correctional Inst., Norfolk

• Decision Date: 13 April 1977
• Citation: 361 N.E.2d 1299,372 Mass. 387
• Parties: Edward MANNING v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, NORFOLK, et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1299

361 N.E.2d 1299

372 Mass. 387

Edward MANNING v. SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION NORFOLK, et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1977.

Decided April 13, 1977.

Michael D. Cutler, Boston, for plaintiff.

Terence M. Troyer, Asst. Atty. Gen., for defendants.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

This case presents the question whether a prisoner is entitled to credit on one criminal sentence for time served under another criminal sentence that was later vacated.

The plaintiff sought a declaratory judgment regarding the computation of time under the prison sentence he is currently serving in the Massachusetts Correctional Institution at Norfolk. The parties submitted a statement of agreed facts which a judge of the Superior Court adopted as his findings of fact. We summarize these facts as supplemented by the record that was before us in COMMONWEALTH V. MANNING, --- MASS. ---, 328 N.E.2D 496 (1975)^A.

On September 29, 1972, the plaintiff was charged by Norfolk County indictments (the Norfolk indictments) with assault with intent to rape and rape, assault and battery, sodomy, and the commission of an unnatural and lascivious act. On October 10, 1972, he pleaded not guilty to these charges and was released on bail.

On January 17, 1973, the plaintiff was arrested on an entirely separate charge which led to an indictment in Suffolk County (the Suffolk indictment), apparently for committing an unnatural and lascivious act. On that day he was remanded to the Suffolk County jail in lieu of bail, and he remained there for fourteen days, until January 31, 1973.

From January 25 to February 1, 1973, he was tried and then found guilty by a Norfolk County jury on all four Norfolk indictments. He received sentences of from five to ten years on the rape charge, five to seven years to be served concurrently on the sodomy charge, and three to five years to be served concurrently on the unnatural and lascivious act charge. The assault and battery charge was filed. On February 1, 1973, the plaintiff was committed to the Massachusetts Correctional Institution at Walpole and began serving these Norfolk sentences. He meanwhile appealed these convictions.

On May 2, 1974, the plaintiff was convicted on the unrelated Suffolk indictment. He was sentenced to a term of from three to five years, minus fourteen days' credit under G.L. c. 279, § 33A, to be served from and after the Norfolk sentences.

All of the Norfolk sentences were reversed on appeal. On May 16, 1974, the conviction on the rape indictment was reversed by the Appeals Court because of erroneous evidentiary rulings. COMMONWEALTH V. MANNING, --- MASS.APP. ---, 311 N.E.2D 92 (1974)^B. On May 2, 1975, the remaining convictions were reversed by this court for evidentiary errors. COMMONWEALTH V. MANNING, --- MASS. ---, 328 N.E.2D 496 (1975)^C.

On remand the plaintiff, on June 10, 1975, pleaded guilty to the Norfolk unnatural act charge and received a suspended sentence of from three to five years and two years' probation to be served from and after the Suffolk sentence he was then serving. ²

These facts have produced a whirlpool of argument about the computation of the plaintiff's sentence. The defendants have given the plaintiff credit for time served after May 2, 1974, when the Suffolk sentence was imposed, and they have also given him credit for the fourteen days served prior to the imposition of the Norfolk sentence. As recomputed, the plaintiff's sentence is considered to have begun on April 18, 1974. ³

The plaintiff argues that G.L. c. 279, § 33A, and G.L. c. 127, § 129B, ⁴ entitle him to credit on the Suffolk sentence for the entire period of time served since his arrest and incarceration on the Suffolk indictment, that is, from January 17, 1973, to the present. He claims that the time served under the vacated Norfolk sentences, even though prior to the imposition of the Suffolk sentence on May 2, 1974, must be credited to the Suffolk sentence. His contention is that otherwise he will have served 'dead time,' i.e., time served under an invalid sentence for which no credit is given. See Watson v. Henderson, 350 F.Supp. 249, 251 (N.D.Ga.1972); Wagner, Sentence Credit for 'Dead Time,' 8 Crim.L.Bull. 393 (1972).

The defendants argue that when the first of the two consecutive sentences was reversed, the second sentence took effect from the day of its imposition, May 2, 1974. Time served on the vacated sentences prior to the imposition of the second sentence, it is argued, cannot be the basis of credit toward the later Suffolk sentence. They assert, in effect, that this result is required by precedent and is necessary to prevent multiple credits for time that has already been once credited to the plaintiff's ultimate suspended Norfolk sentence.

The trial judge adopted the defendants' view by confirming their recomputation of April 18, 1974, as the effective date of the Suffolk County sentence, and denying credit for the fifteen months served under the vacated Norfolk sentences. The plaintiff appealed to the Appeals Court, and we transferred the case on our own motion. G.L. c. 211A, § 10(A). We reverse and order that the plaintiff's sentence be recomputed to account for the time served under the invalidated Norfolk sentences.

The plaintiff's argument depends largely on his reading of two statutes. General Laws c. 127, § 129B, as appearing in St.1961, c. 74, provides as follows: 'The sentence of any prisoner in any correctional institution of the commonwealth or in any house of correction or jail, 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, unless the court in imposing such sentence had already deducted therefrom the time during which such prisoner had been confined while awaiting trial' (emphasis added). Of like effect is G.L. c. 279, § 33A, as appearing in St.1961, c. 75: 'The court on imposing a sentence of commitment to a correctional institution of the commonwealth, a house of correction, or a jail, shall order that the prisoner be deemed to have served a portion of said sentence, such portion to be the number of days spent by the prisoner in confinement prior to such sentence awaiting and during trial' (emphasis added).

These statutes grant a prisoner credit for time served in jail up to the imposition of sentence. If the statutes are read literally, and the original Norfolk sentences are ignored, the plaintiff's argument has force. He was arrested on a Suffolk charge on January 17, 1973, and he remained in jail continuously until May 2, 1974, when he was convicted on that charge. Had no intervening, later vacated sentence been interposed, these two statutes would undoubtedly apply and would compel jail time credit ("days spent . . . awaiting and during trial," G.L. c. 279, § 33A). See Commonwealth v. Grant, --- Mass. ---, --- - ---, ^d 317 N.E.2d 484 (1974). 1955 Senate Doc. No. 750 at 75; Stearns, petitioner, 343 Mass. 53, 56, 175 N.E.2d 470, 472 (1961) ('There can be no doubt that (G.L. c. 127) § 129B applies to the time spent in jail between the day of arrest and the day the indictment was reached for trial.'). If the intervening Norfolk sentences had not existed, credit would be required as a matter of course.

If the intervening Norfolk sentences had been valid, however, there is equally no doubt that the plaintiff would not be entitled to have time served on the Norfolk sentences attributed to the from and after Suffolk sentence. In Needel, petitioner, 344 Mass. 260, 262, 182 N.E.2d 125, 127 (1962), we held that the jail time credit statutes did not apply to confinement pursuant to a sentence for an unrelated crime: 'The statutory purpose (of G.L. c. 127, § 129B) was not to allow deductions for time served under sentence for another crime, but was to afford relief to those not convicted and not serving any sentence but who because of inability to obtain bail, for example, were held in custody awaiting trial.' In Libby v. Commissioner of Correction, 353 Mass. 472, 233 N.E.2d 200 (1968), we relied on Needel, petitioner, supra, and refused to grant credit on a Norfolk County sentence for time spent in custody pursuant to a Suffolk County sentence on an unrelated charge. Had the original Norfolk sentences not been reversed, the plaintiff's argument would have no merit in the present case.

No statute settles whether this case is to be treated as if the reversed sentences were never imposed or as if the reversed sentences are to be given some effect for the purpose of computing credit. Indeed, the defendants do not even address the plaintiff's statutory argument in their brief. At the very least, however, the jail time credit statutes suggest a legislative policy of requiring automatic, and not discretionary, credit for time served ⁵ if the statutes apply. While it is not so clear that these statutes were intended to provide credit where there is an intervening sentence, we confront this problem with a strong indication by the Legislature that a prisoner is entitled to credit for the time he has spent in prison.

Both parties seek support from Brown v. Commissioner of Correction, 336 Mass. 718, 147 N.E.2d 782 (1958). In the Brown case, the plaintiff was convicted on three Middlesex County indictments on May 13, 1952, and received three consecutive sentences, each from five to seven years. On September 23, 1952, he was convicted on five Suffolk indictments and was sentenced to five concurrent sentences, each from three to five years, to be served from and after the Middlesex sentences. This court set aside the three Middlesex convictions in March of 1957. Brown pleaded guilty to two of the three Middlesex indictments on April 30, 1957, and was placed on probation for one year on each.

The question for decision was whether,...