Opinion
20-P-318
06-23-2021
COMMONWEALTH v. Joanna M. SNYDER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of her motion seeking credit for 104 days of so-called "dead time" that she allegedly spent in jail in Montana in connection with her extradition to Massachusetts. We affirm.
"The term ‘dead time’ refers to time spent in confinement for which no day-to-day credit is given against any sentence." Commonwealth v. Milton, 427 Mass. 18, 21 n.4 (1998).
Background. On January 5, 2012, the defendant pleaded guilty to various narcotics offenses and was sentenced to four to four and one-half years in prison followed by three years of probation. She completed her term of incarceration and was on probation in July 2015, when a warrant issued for her arrest based on an alleged violation of probation. As it turned out, the defendant had left Massachusetts and was living in Montana. About three years later, in November 2018, authorities located the defendant and she was arraigned as a fugitive from justice. The defendant claims that she was held in Montana from November 17, 2018, until March 1, 2019 (104 days), on the warrant from Massachusetts and that she was released from custody because Massachusetts had failed to obtain a governor's warrant. Eventually, a governor's warrant was issued on April 15, 2019. The defendant was arrested a second time on November 3, 2019, and soon thereafter was transported to Massachusetts.
The violation was based at least in part on the defendant's failure to attend a residential treatment program, a required condition of her probation.
The defendant appeared in Superior Court on January 8, 2020, at which time she stipulated to various violations of the terms of her probation. Defense counsel recommended a sentence of one year to one year and a day while the probation officer recommended a sentence of two years to two years and a day. After reviewing the defendant's record, which the judge described as "replete with larcenies and forgeries in this state and others," including an arrest in Montana in 2019 for "deceptive practices," for which the defendant received a three-year suspended sentence, the judge adopted the recommendation of the probation officer and imposed a sentence of two years to two years and a day.
Specifically, the defendant stipulated that she (1) failed to enter and successfully complete a residential treatment program as required by the terms of her probation, (2) failed to report to the probation department from 2015 to the date of the hearing, and (3) left the state without permission from the probation department.
After the sentence was announced by the clerk, defense counsel raised the issue of credit for the time the defendant was in custody in Massachusetts pending the violation of probation hearing. He asserted that the defendant was entitled to seventy-five days of credit. The judge agreed and gave the defendant seventy-five days of credit toward her sentence. Defense counsel then requested an additional 126 days of credit for the time the defendant "was held in Montana on fugitive warrants." The probation officer objected, claiming that the defendant was not entitled to credit for those days. At that point, defense counsel candidly informed the judge that he was not familiar with all the circumstances pertaining to the defendant's custody in Montana. The judge declined to award the requested credit without more information. The judge stated:
It appears that defense counsel was mistaken with respect to the number of days at issue, which is 104 and not 126.
"I have to think about it. I'm not sure she's entitled -- I'm not sure she's entitled to it. That doesn't mean that I don't have the discretion to grant it, but I'm not sure. I don't know if she's entitled to it or not. ... I'm going to give you an opportunity to brief it. ... And I will certainly consider it."
Soon thereafter, on January 31, 2020, the defendant filed a pro se motion seeking credit for the 104 days she spent in custody in Montana. The motion was denied in a margin endorsement as follows:
"After review, motion DENIED. The resolution of the probation matter was agreed to by the parties. The credit given by the court was agreed to by the defendant through counsel and the probation department. The court will not now revisit part of an agreed to disposition."
Discussion. The defendant argues that her motion for credit for the time she spent in custody in Montana was improperly denied. It appears from the judge's ruling that she mistakenly believed that the parties had agreed to the amount of jail credit the defendant was entitled to receive toward her sentence. The record is clear, however, that while the parties agreed that the defendant would receive seventy-five days of credit for the time she spent in custody in Massachusetts preceding the hearing on the violation of probation, there was no agreement regarding the defendant's request for an additional 104 days. Nevertheless, we are constrained to affirm the judge's order denying the defendant's motion because the defendant failed to submit the required documentation to support her contention. See Commonwealth v. Woods, 419 Mass. 366, 371 (1995) ("The burden is on the appellant to ensure that an adequate record exists for an appellate court to evaluate"). Furthermore, the record that is before us contains a number of discrepancies. For example, the defendant represents that she was held in Montana from November 17, 2018, until March 1, 2019. However, she also states that she was released from custody on a secured bond from January 23, 2019, to March 1, 2019, to undergo emergency surgery. In addition, during the violation of probation hearing the judge noted that the defendant had been arrested at some point in Montana in 2019 and had served twenty-one days of a three-year suspended sentence. Given these factual inconsistencies, among others, we are not in a position to determine whether the judge erred in denying the defendant's motion. We note, however, that the motion judge denied the defendant's motion without prejudice. Accordingly, should she choose to do so, the defendant may refile her motion in the Superior Court with the appropriate documentation.
Both parties have requested permission to expand the record with documents that appear to contain pertinent information, but it is unclear whether any of them were presented to the judge below and, therefore, we do not consider them. See Commonwealth v. Fabian F., 83 Mass. App. Ct. 394, 395 n.5 (2013).
The defendant claims that she returned to court as required on March 1 after the surgery.
Order denying motion for jail credits affirmed.