Opinion
13-P-1715
12-04-2015
COMMONWEALTH v. JASON COPSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jason Copson, appeals from the denial of his motion for jail credit and the partial allowance of his amended motion to correct mittimus. The defendant contends that (1) although he was serving a sentence on an unrelated Federal crime at the time, fairness and due process require that he be awarded jail credit for the time served while awaiting trial on the Massachusetts charges; and (2) due to a clerical error on the original mittimus and subsequent erroneous amendments to the mittimus, the defendant has not been properly credited for time served on his Massachusetts sentence. We affirm.
Motion for jail credit. The defendant contends that he is entitled to credit for the time that he served while awaiting trial on the Massachusetts charges, even though he was also serving a sentence on an unrelated Federal case at the same time. The defendant requests credit for the period between February 13, 2004, the date that he filed his first motion for speedy trial, and June 30, 2005, the date that the parties state his Federal sentence "expired."
It is well settled that criminal defendants in Massachusetts have the right to have their sentences reduced by the amount of time they have spent in custody awaiting disposition of their cases. See G. L. c. 279, § 33A; G. L. c. 127, § 129B. However, a prisoner is not entitled to credit for time served on unrelated charges. See Commonwealth v. Milton, 427 Mass. 18, 24 (1998). "The statutory purpose [is] not to allow deductions for time served under sentence for another crime, but [is] to afford relief to those not convicted and not serving any sentence but who because of inability to obtain bail, for example, [are] held in custody awaiting trial." Needel, petitioner, 344 Mass. 260, 262 (1962). "Fairness is the basic touchstone, and is the appropriate measure in determining whether and to what extent . . . credit for the time spent in custody should be given." Commonwealth v. Harvey, 66 Mass. App. Ct. 297, 300 (2006) (quotations and citation omitted).
Here, the defendant was serving a sentence for a violation of his Federal probation while he was awaiting trial on the Massachusetts charges. Therefore, the defendant is not entitled to receive credit for the time served on the unrelated Federal case. See Needel, supra. It makes no difference to our decision that during a portion of that time period he was in the custody of the Commonwealth of Massachusetts. See generally Milton, supra.
"[D]ue process . . . [does not] require that such credit be given." See Commonwealth v. Araujo, 41 Mass. App. Ct. 928, 929 (1996).
The defendant also contends that fairness requires that he be credited for this time where the Commonwealth did not inform him of his right to speedy trial, though he was held pursuant to the Interstate Agreement on Detainers ("Agreement"), St. 1965, c. 892, § 1. See Mass.R.Crim.P. 36(d)(3), 378 Mass. 909 (1979). This argument has no merit, and has already been litigated to conclusion. "[T]he defendant had actual notice of his right to speedy trial under the Agreement, as evidenced by his reference to the Agreement in his [first] motion for speedy trial." Commonwealth v. Copson, 444 Mass. 609, 624 n.20 (2005). Cf. Commonwealth v. Grant, 418 Mass. 76, 80 (1994) ("A failure by the Commonwealth to comply precisely with the written notice provision of rule 36(d)(3) does not require a dismissal of the charges against the defendant if the defendant received actual notice of the charges pending against him in Massachusetts and of his right to request a speedy trial").
Amended motion to correct mittimus. The defendant next contends that due to a clerical error on the original mittimus and subsequent erroneous amendments to the mittimus, he has not been properly credited for time served on his Massachusetts sentence. There is no error in the calculation of the jail credit, as amended.
Sentencing in this case took place on August 4, 2008. At that time, the judge ordered 155 days of jail credit and allowed a stay on the sentence until August 15, 2008. Though the mittimus stated correctly that the defendant should receive 155 days of jail credit, it erroneously stated that the sentence was to be stayed until September 15, 2008. Both parties agree that this is a clerical error. On the defendant's first motion, the court corrected the mittimus to provide the defendant with 164 days of sentence credit, which included one day for the day on which he was arrested (June 30, 2003); 121 days for the time period when the defendant was in custody in Massachusetts awaiting trial and sentencing (April 14, 2008, through August 3, 2008); and forty-two days for the stay of sentence (August 4, 2008, through September 15, 2008). Acting on the defendant's amended motion to correct mittimus, the court further amended the mittimus to provide the defendant with thirteen additional days of credit for the time that he was held in custody in Maryland after having waived extradition (April 1, 2008, through April 14, 2008).
The judge's written decision erroneously lists the start date of the stay as April 14, 2008, however the judge provided the defendant with forty-two days of credit, which properly coincides with the date of sentencing (August 4, 2008) and the last date of the stay as listed in the mittimus and the judge's written decision (September 14, 2008).
The defendant argues that he is entitled to further credit. Specifically, he contends that he is entitled to credit for time served in a Maryland jail on a Massachusetts fugitive from justice warrant where he had posted bail for the Maryland charges and was held solely on the warrant (March 3, 2008, through April 1, 2008). We disagree. Where "a defendant is held in pretrial custody in a foreign State" on a Massachusetts warrant, "the award of Massachusetts jail time credits . . . commences on the date of the defendant's signing of the extradition waiver. . . ." Commonwealth v. Frias, 53 Mass. App. Ct. 488, 493 (2002). The defendant signed the extradition waiver on April 1, 2008, and has been credited properly beginning on that date.
Credit for the time that the defendant was held solely on the fugitive of justice warrant and before he waived extradition is given only where the defendant has met his burden of showing "the reasons for [any] delay [in the waiver of extradition proceedings] and demonstrating that the cause of the delay is not attributable to his conduct." Frias, supra at 493-494 & n.9. See Md. Code Ann., Crim. Proc. § 9-124. The defendant has failed to meet his burden. While held in Maryland, he was represented by counsel and filed a motion to recall the warrant on March 5, 2008, and a motion for speedy trial on March 11, 2008, though he did not waive extradition until April 1, 2008. Further, his affidavit fails to state when he requested the opportunity to waive extradition, he has not provided his full criminal docket from Maryland, and he otherwise has failed to demonstrate the cause of any delay., Frias, supra at 493-494 & n.9.
The defendant filed a motion to correct or modify the record with supporting documentation showing that he was scheduled for a bail review on March 5, 2008, in Maryland. He asserts that this paperwork supports his argument that he is entitled to further credit on his sentence. We have considered the documentation, which is inadequate to show that the defendant would have waived extradition at an earlier date. He filed other motions during the relevant time period but did not waive extradition.
We also note that the trial judge in this case, when revoking bail, found that the defendant had "manipulat[ed] the system by traveling out of state [to Maryland] to surrender to a [four and one-half] year-old warrant at a time when he was aware that his case in the [Massachusetts] Superior Court was scheduled for trial." In other words, the defendant had "deliberately absented himself to avoid going to trial."
The defendant argues that his amended mittimus has "effectively increased [his sentence] in violation of Due Process and Double Jeopardy protections." Because we find no abuse of discretion or error of law we also conclude that the judge's amendment of the mittimus did not violate due process or double jeopardy principles. In responding to the defendant's various motions to correct the mittimus, the judge amended the mittimus to reflect the jail credit earned by the defendant. Due process does not require that he be given more credit than is due. See Commonwealth v. Araujo, 41 Mass. App. Ct. 928, 929 (1996).
Order dated February 28, 2013, denying renewed motion to correct mittimus affirmed.
Order dated March 21, 2013, denying in part and allowing in part amended motion to correct mittimus affirmed.
By the Court (Katzmann, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 4, 2015.