Opinion
15-P-808
04-03-2017
COMMONWEALTH v. Mark MEANS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion seeking sentencing credit for time he served on earlier, unrelated convictions that were vacated on appeal. Because the defendant was acquitted of those charges on retrial, he argues that principles of fairness entitle him to credit on his current sentences. We affirm the denial of his motion.
In September of 2005, a jury found the defendant guilty of assault and battery on a correction officer, assault and battery by means of a dangerous weapon, and being a habitual offender. He was sentenced to two concurrent terms of ten years in State prison. In June of 2009, the Supreme Judicial Court reversed the defendant's convictions, concluding that the judge erred in finding that the defendant forfeited his right to counsel. See Commonwealth v. Means, 454 Mass. 81 (2009). Following a new trial in May of 2010, a jury acquitted the defendant of the two assault charges, and the Commonwealth filed a nolle prosequi on the habitual offender charges.
Almost three years later, the defendant was indicted on multiple charges stemming from incidents that occurred in late 2012 and early 2013. A jury ultimately convicted the defendant of unarmed robbery, assault by means of a dangerous weapon, threatening to commit a crime, and violating an abuse prevention order. The judge then found the defendant guilty of being a habitual offender and sentenced him to a total of ten years in State prison. After appealing his convictions, the defendant moved to have the time he served on his earlier vacated convictions credited to his current sentences. The judge denied the motion, and the defendant filed a separate notice of appeal from the judge's order.
The judge later reduced the unarmed robbery conviction to larceny from a person.
The defendant's direct appeal proceeded in this court under docket no. 15–P–931. The appeals have not been consolidated.
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This appeal is controlled in all material respects by Commonwealth v. Milton, 427 Mass. 18 (1998), and Commonwealth v. Holmes, 469 Mass. 1010 (2014). In Milton the court held that, in order "to prevent criminals from essentially having ‘a line of credit for future crimes,’ " "time spent in custody awaiting trial for one crime generally may not be credited against a sentence for an unrelated crime." 427 Mass. at 24, quoting from Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387, 395 (1977). Any unfairness to the defendant, the court reasoned, was outweighed by "the need to prevent criminal defendants from ‘banking time’ for use against future sentences" because banked time would "in effect grant [defendants] a license to commit future criminal acts with immunity." Id. at 25.
In Holmes the court applied the prohibition against banking time to a situation where the defendant's earlier conviction was not vacated until after he had committed his new crimes. 469 Mass. at 1012. While acknowledging "that the defendant could not have known with any certainty that his earlier conviction would be vacated before committing the new crimes," the court still held that he could not "draw[ ] on time banked from his earlier conviction, for which his sentence had been fully served, and apply[ ] it toward his new convictions." Ibid. Reiterating the holding in Milton, the court concluded that the need to prevent criminals from banking time outweighed "any concern about unfairness" to the defendant. Id. at 1013.
We see no factor that materially distinguishes this case from Milton and Holmes. In arguing otherwise, the defendant relies on a footnote in Holmes, which "leave[s] open the possibility of allowing credit for time served on a completed sentence for an unrelated crime where there is actual innocence or some other equally compelling circumstance." Id. at 1012 n.3. But the defendant's acquittal of the earlier charges does not equate to "actual innocence," and, as Holmes makes clear, it is also not an "equally compelling circumstance." In Holmes the defendant's earlier conviction was reversed on the ground that he had received ineffective assistance of counsel, yet the court still held that he was not entitled to credit for time served on that conviction. Id. at 1010–1011. Likewise, here, the reversal of the defendant's convictions for denial of his right to counsel does not present a "compelling circumstance" to justify an award of credit. In fact, the defendant's circumstances are less compelling than in Holmes because he knew, before he committed his new offenses, that his earlier convictions had been vacated and that he had been acquitted on retrial. This case therefore presents the paradigm situation for applying the prohibition against banked time. See Milton, 427 Mass. at 25.
Order denying motion for credit for time served affirmed.