Milton v. Commissioner of Correction, 04-P-1766.

• Citation: 853 N.E.2d 557,67 Mass. App. Ct. 253
• Decision Date: 31 August 2006
• Docket Number: No. 04-P-1766.,04-P-1766.
• Parties: Jeffrey T. MILTON v. COMMISSIONER OF CORRECTION.
• Court: Appeals Court of Massachusetts

Page 557

853 N.E.2d 557

67 Mass. App. Ct. 253

Jeffrey T. MILTON v. COMMISSIONER OF CORRECTION.

No. 04-P-1766.

Appeals Court of Massachusetts, Suffolk.

Argued February 14, 2006.

Decided August 31, 2006.

Maxine Sushelsky, Boston, for the plaintiff.

David Slade, Boston, for the defendant.

Present: DUFFLY, BROWN, & KATZMANN, JJ.

DUFFLY, J.

In 1990, while an inmate at Massachusetts Correctional Institution (MCI), Cedar Junction, and serving time on an unrelated conviction, the plaintiff, Jeffrey T. Milton, was arraigned on two counts of assault and battery by means of a dangerous weapon, convicted in Superior Court in Norfolk County, and sentenced to a term of eight to ten years on each of the two convictions (Norfolk sentence), to be served concurrently, from and after. Milton filed the underlying action against the Commissioner of Correction (commissioner) seeking to reduce the Norfolk sentence by a credit for all jail time (1,100 days) he served in connection with two separate and unrelated convictions, both of which were vacated, arising in the Superior Court in Middlesex County. Milton also sought statutory good time in connection with the Norfolk sentence, denied him on the basis of his having committed the crimes during a term of imprisonment.

On cross motions for summary judgment, a judge of the Superior Court determined that Milton was entitled to credit only as of April 12, 1990, the date of the Norfolk County offenses (a credit of 237 days), and denied the motion as to Milton's request for statutory good time. Milton appealed.

Background. As in most sentencing cases, a detailed chronology may be helpful to our later discussion of Milton's claims. We begin with a description of the two separate and unrelated Middlesex County convictions for which Milton seeks credit.

On July 30, 1987, Milton pleaded guilty to a charge of assault and battery by means of a dangerous weapon and was sentenced to one year in the house of correction, with thirty days to serve, the balance suspended (Middlesex I sentence). On October 21, 1987, the suspended portion of the Middlesex I sentence was revoked and the balance of the sentence was imposed. Milton claims (and the Commonwealth does not dispute) that he was released from the Middlesex I sentence on June 21, 1988; with adjustments for statutory good time, he served 218 days.

Milton was arraigned on June 22, 1988, on another charge of assault and battery by means of a dangerous weapon, to which he pleaded guilty on August 15, 1988. He was sentenced to four and one-half to ten years at MCI, Cedar Junction, with fifty-five days' credit (Middlesex II sentence).

On April 12, 1990 — before completing his Middlesex II sentence, but after he had been released from his Middlesex I sentence — while confined at MCI, Cedar Junction,¹ Milton committed two more offenses of assault and battery by means of a dangerous weapon. He was convicted of both counts on December 5, 1990, and sentenced to eight to ten years on each conviction, to be served concurrently (Norfolk sentence), from and after the Middlesex II sentence.

Milton completed the Middlesex II sentence on October 10, 1994.² On July 6, 2000, this court vacated the Middlesex II sentence and ordered a new trial, concluding that Milton's plea counsel provided ineffective assistance by failing to investigate the issue of the defendant's criminal responsibility. Commonwealth v. Milton, 49 Mass.App.Ct. 552, 560-562, 731 N.E.2d 101 (2000). The indictment against Milton subsequently was dismissed. In addition, on November 22, 2002, a Superior Court judge allowed Milton's motion to withdraw his guilty plea in the Middlesex I case, and the Commonwealth subsequently filed a nolle prosequi.

By the present action, Milton seeks credit for as yet uncredited time served on the Middlesex I and Middlesex II sentences and statutory good time on the Norfolk sentence. On cross motions for summary judgment, a Superior Court judge, purporting to rely on Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387, 397 n. 11, 361 N.E.2d 1299 (1977) (Manning), on the sentencing credit issue, partially allowed Milton's motion by increasing Milton's credit (using as a starting date the date on which the Norfolk offenses were committed, April 12, 1990, rather than the later date employed by the commissioner, the December 5, 1990, date of conviction), and otherwise allowed the commissioner's motion.³ Milton claims in this appeal that he is entitled to credit for all time served on the Middlesex I sentence (218 days), as well as the remaining time (651 days) served on the Middlesex II sentence.

Discussion. 1. Credit for time served on vacated sentences. We agree that our disposition of Milton's claim depends in large measure on whether the facts of this case are governed by the general principles articulated in Manning, 372 Mass. 387, 361 N.E.2d 1299, the thrust of which is to prevent "dead time".⁴ As the court made clear in that case:

"The problem is not when a sentence is imposed but rather what to do to or for a prisoner who has served time under a sentence that is reversed. The jail time credit statutes indicate legislative policy that credit be granted. Familiar equitable principles require an interpretation that does not leave a prisoner having served bad or dead time for which no credit is given. A prisoner who had proceedings free from error would have time served credited to a sentence. A prisoner should not be penalized or burdened by denial of a credit simply because he had successfully appealed a criminal conviction. . . . The result we reach neutralizes the effect of the erroneous . . . sentences on the valid . . . sentence, and causes the plaintiff to serve no more and no less than he should pursuant to the [valid] sentence."

Id. at 396-397, 361 N.E.2d 1299. See Commonwealth v. Milton, 427 Mass. 18, 24-25, 690 N.E.2d 1232 (1998); Gardner v. Commissioner of Correction, 56 Mass.App. Ct. 31, 34-37, 775 N.E.2d 426 (2002).

Mitigating against this general principle, however, is the "possibility that the defendant is banking time or getting double credit." Commonwealth v. Maldonado, 64 Mass.App.Ct. 250, 251-252, 832 N.E.2d 690 (2005). "[I]t is not our intention to grant prisoners license to commit future criminal acts with immunity." Manning, supra at 395, 361 N.E.2d 1299.

Our decisions have described circumstances in which a defendant has been allowed to credit time in an unrelated case in order to prevent him from serving dead time, while noting that "the statutes do not permit defendants to `bank time' against future offenses." Commonwealth v. Milton, 427 Mass. at 24, 690 N.E.2d 1232. Thus, as the court noted in Milton, "it was important to the holding [in Manning] that the defendant was convicted of the second crime prior to being discharged on the first." Ibid. See Commonwealth v. Harvey, 66 Mass.App.Ct. 297, 302, 847 N.E.2d 355 (2006). On this basis, the court in Milton declined to apply a credit for approximately fifteen months of dead time that the defendant served awaiting trial (the defendant not having posted bail) on a robbery charge that was nolle prossed; credit was denied because the defendant had been discharged approximately six months prior to being convicted on the second crime. "Although the time he served awaiting trial on the robbery charge constitutes `dead time,' the need to prevent criminal defendants from `banking time' for use against future sentences outweighs any fairness issues normally applicable in such situations." Commonwealth v. Milton, supra at 25, 690 N.E.2d 1232.

Here, Milton had completed the Middlesex I sentence on June 21, 1988; the Norfolk offenses were committed after this date, on April 12, 1990. Thus, based on the foregoing line of cases, it was correct to deny credit for time served on the Middlesex I sentence.⁵

However, based on the general principles of fairness enunciated in these same cases, Milton should have received credit against his Norfolk sentence for all of the time he served on his Middlesex II sentence.⁶ We are not persuaded by the commissioner's argument that Manning is inapposite because "Manning did not seek credit for the time he was held on his [invalid] charge prior to his arrest on the [valid] charge."⁷ We think more significant is the fact that the court in Manning rejected the superintendent's arguments in that case as overly legalistic, in that he sought to adhere "to the letter of the [holding in] Brown [v. Commissioner of Correction, 336 Mass. 718, 147 N.E.2d 782 (1958)]." Manning, 372 Mass. at 393-394, 361 N.E.2d 1299. Our courts have "adopted a rule that would remedy the injustice of a prisoner serving time for which he receives no credit. Liberty is of immeasurable value; it will not do to read statutes and opinions blind to the possible injustice of denying credit." Id. at 394, 361 N.E.2d 1299.⁸ Here, Milton was still serving his Middlesex II sentence when he was convicted of the Norfolk offenses, and could not have anticipated (at the time he committed the Norfolk offenses) that his conviction subsequently would be reversed. On this basis, we conclude that Milton is entitled to credit from the commencement of his sentence on the erroneous Middlesex II conviction.

2. Statutory good time. The commissioner, relying on G.L. c. 127, § 129⁹ (repealed as to all offenses committed on or after July 1, 1994, by St.1993, c. 432, §§ 10, 21), denied Milton statutory good time against his Norfolk sentence because the Norfolk offenses had been committed "during a term of imprisonment." Milton argues that because the term of imprisonment was based on a conviction that subsequently was vacated, it should not figure into the calculation of the length of his prison term. His reliance on cases barring States from enforcing punishment stemming from an invalid conviction, or enhancing punishment for another offense, is misplaced.¹⁰

"[A]t least one of the...