Opinion
11-P-1231
04-30-2012
COMMONWEALTH v. LEROY W. SAMUELS.
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
At issue in this appeal is whether a Boston Municipal Court judge erred in denying the defendant's request for credit for 169 days spent in confinement. Because we conclude that there was no error, we affirm.
Background. On January 17, 2008, the defendant pleaded guilty to the following four offenses: Count one -- improper use of a credit card in violation of G. L. c. 266, § 37B(f); Count two -- receipt of stolen property under $250 in violation of G. L. c. 266, § 60; Count three -- identity fraud in violation of G. L. c. 266, § 37E; and Count four -- furnishing a false name to a police officer in violation of G. L. c. 268, § 34A. The defendant was sentenced as follows: Count one -- one year in the house of correction with the sentence suspended for two years, with a termination date of January 16, 2010; Count two -- two and one-half years in the house of correction with the sentence suspended for two years, with a termination date of January 16, 2010; Count three -- two years' probation; and Count four -- one year in the house of correction, from and after the sentence on Count one, with the sentence suspended for two years, and a termination date of January 15, 2010.
The docket sheet does not indicate that the defendant was placed on probation on counts one and two. However, we conclude that the suspended sentences also included a concurrent term of probation, as the docket sheets on both counts include a termination date, and the docket sheet on Count two has the notation 'Drug/Alc free urines.'
On October 1, 2009, the defendant was found to be in violation of his probation. His term of probation on counts one and two was extended until January 2, 2012. The defendant was also sentenced to terms of six months on Count three and nine months on Count four, both terms to be served concurrently. He received credit at that time for 148 days spent in confinement.
On June 21, 2010, the defendant was held pending a probation violation hearing on counts one and two. On July 12, 2010, the defendant was again found to be in violation of his probation and received concurrent sentences of one year and two and one-half years on counts one and two. He received credit for twenty-one days spent in confinement for the time he was held pending the probation violation hearing. The defendant, acting pro se, moved to correct the mittimus to reflect his entitlement to 148 days of jail credit. After the motion was denied, the defendant filed a motion for reconsideration, now seeking a total of 169 days' credit. The motion for reconsideration was denied, and the defendant appealed.
Discussion. In imposing a jail sentence, the court 'shall order that the prisoner be deemed to have served a portion of said sentence, such portion to be the number of days spent by the prisoner in confinement prior to such sentence awaiting and during trial.' G. L. c. 279, § 33A, as amended by St. 1958, c. 173. Thus, under the statute, 'a prisoner is to receive credit for all jail time -- neither more nor less -- served before sentencing which relates to the criminal episode for which the prisoner is sentenced.' Commonwealth v. Carter, 10 Mass. App. Ct. 618, 620 (1980).
Here, the defendant received credit for 148 days spent in confinement pending the initial sentencing on all four counts, and an additional twenty-one days' credit for his confinement pending the July, 2010, probation violation hearing. He therefore received that to which he was entitled under the statute, and is not entitled to again credit that 169 days against the remainder of his sentence for a later violation of probation. Indeed, 'it would be contrary here to the ultimate goal of fairness to allow the defendant to earn two days of credit for every day in jail.' Commonwealth v. Harvey, 66 Mass. App. Ct. 297, 301 (2006). 'Because the defendant had already received credit for the time he spent in jail awaiting trial' on the four counts arising out of the single criminal episode for which the entire sentence was imposed, 'the judge did not err in denying the defendant's request to receive credit for the same period of time on the [same] set of charges and thus to effectively reduce his sentence.' Ibid.
Orders denying motions for jail credit and for reconsideration affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.)