Petition of Wolcott
| Citation | 591 N.E.2d 679,32 Mass.App.Ct. 473 |
| Decision Date | 27 May 1992 |
| Docket Number | No. 91-P-4,91-P-4 |
| Parties | Petition of Errol WOLCOTT. |
| Court | Appeals Court of Massachusetts |
Emanuel Howard, Boston, for petitioner.
David Slade, Boston, for respondents.
Before ARMSTRONG, DREBEN and GILLERMAN, JJ.
Claiming that his sentences have expired because of the reversal of three of his convictions in Commonwealth v. Wolcott, 28 Mass.App.Ct. 200, 548 N.E.2d 1271 (1990), the petitioner appeals from the denial of his petition for habeas corpus. The petition was heard by the Superior Court judge who conducted the trial and who originally imposed the sentences. 1 We affirm the denial of the petition.
We take the facts from the "Agreed Statement of Facts" filed by the parties in the Superior Court, supplemented by matters of record, and also supplemented by the uncontested statement of counsel for the petitioner that the Suffolk district attorney's office "represented to him that it had no intention of retrying petitioner on those three indictments."
The incidents leading to the convictions are set forth in our opinion in 28 Mass.App.Ct. 200, 548 N.E.2d 1271, and will not be repeated here. On January 27, 1988, the petitioner was sentenced on seven guilty verdicts returned in the Superior Court.
The sentences were as follows and we shall henceforth refer to them by letter.
The judgments of conviction on the indictments for armed assault with intent to murder, the three longest sentences, were reversed in Commonwealth v. Wolcott, 28 Mass.App.Ct. at 212, 548 N.E.2d 1271, because of prejudicial error in the allowance of certain testimony. Thus, the two initial concurrent 9-10 year sentences (A and B) and the 9-10 year on and after sentence (E) were reversed. In affirming the convictions on the other charges, we noted, at 28 Mass.App.Ct. at 212 n. 19, 548 N.E.2d 1271, "Without going into detail, we can say that the effect of the reversals on the sentences imposed by the judge will be to reduce the maximum imprisonment from twenty-five years to fifteen years (subject, of course, to what may occur on possible partial retrial)." 2
Arguing that the footnote is mere dictum, the petitioner claims the effect of the reversal of sentences A and E to which sentences F and G were anchored caused the latter two sentences to collapse back to January 27, 1988, the date they were imposed. This, he urges, has the result that sentences F and G became concurrent with the initial sentences C and D, so that all four sentences were concurrent.
The parties agree that there are no controlling precedents in Massachusetts. The petitioner relies on the literal wording of the F and G sentences--F was specifically anchored to sentence A and by its terms was to be consecutive only to that sentence. G was similarly connected to E.
There are, indeed, cases where stress is laid on the literal language used by the judge. In Henschel v. Commissioner of Correction, 368 Mass. 130, 131-133, 330 N.E.2d 480 (1975), the plaintiff, while serving sentences for certain crimes, received five concurrent sentences to take effect "from and after the expiration of any sentence the ... [plaintiff] may now be serving." Three days later, he was sentenced to the house of correction for two years, "said sentence to take effect from and after the completion of the sentence or sentences the ... [plaintiff] is now serving." The Supreme Judicial Court, citing with approval Baranow v. Commissioner of Correction, 1 Mass.App.Ct. 831, 832, 297 N.E.2d 67 (1973), held that Id. 368 Mass. at 133, 330 N.E.2d 480 (citations omitted).
Sentencing language, however, is not always construed literally or in favor of finding an ambiguity if such a construction would lead to defeating the purpose of the sentencing scheme. In Carlino v. Commissioner of Correction, 355 Mass. 159, 160, 243 N.E.2d 799 (1969), a judge imposed sentences "to take effect from and after the expiration of the sentence now being served." The plaintiff in that case argued that, since he was then serving several concurrent sentences, the "from and after" sentences should take effect on the expiration of the shortest sentence he was then serving. In rejecting that view, the court noted that, if the plaintiff's theory were followed, he would for purposes of determining parole eligibility receive good time credits based on the longest sentence which would then be deducted from the shortest sentence. "This ... would be absurd and would defeat the very purpose of imposing concurrent sentences." Id. at 161-162, 243 N.E.2d 799.
The petitioner also relies on a line of cases which hold that a "from and after" sentence following a prior sentence which is reversed collapses back to run as of the date of its imposition. Brown v. Commissioner of Correction, 336 Mass. 718, 721, 147 N.E.2d 782 (1958). A prisoner even receives credit for time served under an invalid sentence. Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387, 391, 361 N.E.2d 1299 (1977). The rationale of these cases is that a prisoner should not serve "dead time" but should receive credit as matter of right for time served under an erroneous conviction. Brown, supra 336 Mass. at 721, 147 N.E.2d 782. Manning, supra 372 Mass. at 396-397, 361 N.E.2d 1299. See also Lewis v. Commonwealth, 329 Mass. 445, 448, 108 N.E.2d 922 (1952). In the case at bar, however, there is no "dead time" or other unfairness to the petitioner in upholding the consecutive structure of the sentencing scheme.
Cases elsewhere suggest that the whole sentencing record be considered in construing the judge's intent. In other words, although the so-called "anchor" sentences if reversed are not effective as an agency of punishment (here sentences A and E), they may be considered "to evidence the intention of the court in respect of connected sentences." Watson v. United States, 174 F.2d 253, 254 (D.C.Cir.1948). Daily v. United States, 259 F.2d 433, 434 (7th Cir.1958), cert. denied, 359 U.S. 937, 79 S.Ct. 653, 3 L.Ed.2d 638 (1959). Niblock v. State, 11 Kan.App.2d 30, 34, 711 P.2d 771 (1985). See also United States v. Welty, 330 F.Supp. 699, 701 (E.D.Pa.1971), aff'd, 468 F.2d 594 (3d Cir.1972). In Watson, in Daily, and in Niblock, a sentence (B) which was to be served consecutively to another sentence or sentences (A sentences) was held invalid. The question presented was how to treat other sentences which were to run concurrently with the B sentence. In each of the three cases, the court looked to the vacated sentence to evidence the intent of the trial judge, and in each case the court held that it was the judge's intent that the sentences concurrent to the failed "anchor" sentence commenced at the expiration of the prior sentence (A).
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