Opinion
14-P-1033
05-06-2016
COMMONWEALTH v. DAVID VIEIRA.
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 issue raised in this appeal is whether the defendant is entitled to receive 545 days of jail credit toward his State sentence for the time he spent in Federal custody awaiting trial on a separate, unrelated Federal charge. Because we discern no abuse of discretion or other error of law in the denial of the defendant's motions seeking the credit, we affirm.
On October 17, 2003, a grand jury returned several indictments charging the defendant with various drug related offenses. On November 8, 2005, before his State court case was resolved, the defendant was arrested on a Federal indictment, following which his State court bail was revoked and he was held without bail in Federal custody. The defendant pleaded guilty to an unrelated charge of conspiracy in Federal court on January 23, 2007, and on May 7, 2007, he received a nine-year sentence. The defendant was given 545 days of jail credit against his Federal sentence for the time he spent in Federal custody awaiting trial.
Thereafter, on October 23, 2008, the defendant was returned to Massachusetts to stand trial on the State charges. On August 18, 2009, he was convicted of trafficking and sentenced to a fifteen-to-eighteen-year term. The trial judge ordered the defendant's State sentence to run concurrently with the remaining portion of his Federal sentence. The defendant received credit for the time he spent in custody awaiting trial before he was taken into Federal custody, but he was not credited the 545 days that had been applied toward his Federal sentence because the State sentence was imposed more than 545 days after the imposition of the Federal sentence.
The defendant maintains that he is entitled to 545 days of jail credit against his State sentence for the time he was held in Federal custody awaiting trial because 1) he was being held on the State charges at the same time, and 2) his State sentence was ordered to run concurrently with the Federal sentence. The trial judge rejected this argument, as do we. As the judge explained in her written memorandum of decision and order, the credit at issue was exhausted before the State sentence was imposed. Relying on Commonwealth v. Harvey, 66 Mass. App. Ct. 297, 301 (2006), the judge concluded:
"Where, as here, the defendant has already received and exhausted all the credit he is seeking be applied, it is not error to deny the request, which, if allowed, would effectively reduce his sentence. See Harvey, 66 Mass. App. Ct. at 301. Applying the exhausted jail time credit to [the defendant's] [S]tate sentence would provide him with two days of credit for every one day served. Fairness requires denial where the crediting of time would result in the prisoner 'getting double credit for time.' Williams [v. Superintendent, Mass. Treatment Center], 463 Mass. [627,] 632 [2012]."
The judge was similarly unpersuaded by the defendant's claim that he was entitled to the credit at issue under G. L. c. 279, § 33A. We agree with the judge's reasoning in all respects. The judge stated:
"This argument is not persuasive because [the defendant] had exhausted the jail time credit he is seeking prior to being sentenced by this court. See [Commonwealth v.] Carter, 10 Mass. App. Ct. [618,] 621 [1980]. Once [the defendant] received the 545 days of credit, he effectively began his nine-year [F]ederal sentence with 545 days already deemed as having been served. In effect, the defendant seeks to credit time during which he served a federal sentence to his new [S]tate sentence. The time actually deemed to have been served on his [F]ederal sentence does not amount to dead time. When this court sentenced [the defendant] to a sentence to run concurrently with a [F]ederal sentence, the defendant was not entitled to credit for the time he had already served on his [F]ederal sentence."
In sum, we agree with the judge's conclusion that "[t]he defendant has received all credit to which he is entitled."
Finally, the defendant argues that due process requires that he receive the credit at issue because his continued confinement in Federal custody after the imposition of his Federal sentence was due to State inaction. In other words, the defendant claims had he been returned to State court earlier, he would have been entitled to some if not all of the credit he seeks. The problem with this argument is that the record is devoid of any indication that there was an unlawful or unfair delay in returning the defendant to State court.
Order denying motions for jail credit affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 6, 2016.