Opinion
11-P-258
11-03-2011
COMMONWEALTH v. BRIAN BARAS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from the denial of his motion for a new trial, the defendant contends that his guilty plea was involuntary because it was based on a misunderstanding of the order in which he would serve the sentences on the two charges to which he pleaded guilty.
Relatedly, the defendant contends that his misunderstanding was the product of constitutionally ineffective assistance of counsel, in the form of incorrect advice of his counsel at the plea hearing regarding the order in which his sentences would be served.
The case is controlled in material respects by Commonwealth v. Cepulonis, 9 Mass. App. Ct. 302, 308-309 (1980). Like parole eligibility, the availability of good time credits 'is highly dependent on a variety of discretionary factors which are usually considered and applied on a case-by-case basis under applicable statutory and regulatory formulae.' Id. at 309-310. Accordingly, predictions by counsel regarding the time the defendant might be required to serve were 'but 'contingent consequences of being confined." Id. at 309, quoting from Commonwealth v. Morrow, 363 Mass. 601, 606 (1973). See Commonwealth v. Santiago, 394 Mass. 25, 28-30 (1985). We accordingly discern no abuse of discretion in the denial by the motion judge of the defendant's motion for a new trial, and affirm the order denying the defendant's motion.
So ordered.
By the Court (Green, Katzmann & Hanlon, JJ.),