Opinion
21-P-943
11-04-2022
COMMONWEALTH v. MILTON BELTETON.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The question in this case is whether the defendant is entitled to twenty additional days of credit toward the sentence he is currently serving for time served in connection with another criminal sentence that was later vacated. The Commonwealth concedes that the defendant is entitled to the credit at issue. Although we are not required to accept the Commonwealth's concession, see Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010), we likewise conclude that the defendant is entitled to twenty additional days of credit.
Background.
A Suffolk County grand jury returned indictments charging the defendant with various offenses including rape of a child (the Suffolk indictments) on June 27, 2006. The Suffolk indictments alleged that the sexual offenses were committed on diverse dates between January 1, 1999, and December 31, 2005. On January 18, 2007, the defendant was charged with trafficking in cocaine. Following a jury trial, he was convicted of that offense (the trafficking conviction) and, on November 15, 2007, he was sentenced to a five-year term in prison. While the defendant was serving that sentence, on November 24, 2008, he was convicted on the Suffolk indictments. He was sentenced to a twenty-five to thirty-year term of incarceration on the conviction of rape of a child to be served on and after the five-year sentence for the trafficking conviction.
In 2010, a different panel of this court reversed the defendant's trafficking conviction in an unpublished memorandum and order and the five-year sentence was vacated. See Commonwealth v. Belteton, 78 Mass.App.Ct. 1114 (2010). The defendant then filed a motion seeking jail credit for 772 days of so-called "dead time" that he had served in connection with the trafficking conviction. Specifically, the defendant sought credit for (1) twenty days that he spent in custody, from January 18, 2007, to February 7, 2007, while awaiting trial, and (2) 752 days that he spent in custody from November 25, 2008, to December 17, 2010, while serving a portion of the five-year sentence. The Commonwealth did not oppose the motion. In its memorandum of law submitted in response to the motion, the Commonwealth maintained that "[i]n order to rectify the defendant's serving of 'dead time' on a reversed conviction, . . . [the defendant] is entitled to have that time credited to the sentence he is currently serving."
"[D]ead time" is "time served under an invalid sentence for which no credit is given." Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387, 390 (1977).
In a margin endorsement, the judge allowed the motion in part, and denied it in part:
"Following review, I agree with and accept the Commonwealth's analysis that the defendant is entitled to 752 days of sentence credit, representing the time served from Nov[ember] 25, 2008 to Dec[ember] 17, 2010 on the reversed cocaine charge. I find this analysis to be in keeping with both [Commonwealth v. Milton], 427 Mass. 18, 21-24 (1998) and [Commonwealth v. Holmes], 469 Mass. 1010, 1011 (2014). The motion is ALLOWED to the extent and in the manner described here, and otherwise DENIED."
As previously noted, this appeal concerns that portion of the judge's ruling that denied credit for the twenty-day period that the defendant was held prior to his trial in the drug trafficking case.
Discussion.
The parties agree that the outcome of this case is controlled by Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387 (1977). In that case, the Supreme Judicial Court ruled that a prisoner should not be required to serve dead time on a vacated sentence for which he otherwise would not receive credit. Id. at 390-391. At the same time, a prisoner is prohibited from using "bank[ed] time" from an earlier conviction toward a new conviction. Id. at 395-396. Put another way, a defendant may not receive credit for time spent incarcerated toward a sentence for a crime that he has not yet committed or for which he has not yet been prosecuted. Id. However, as the Court explained, no "bank[ing]" occurs where a defendant seeks to apply credit to a sentence where the underlying crime was committed before the defendant was incarcerated for the offense which results in an invalid sentence. Id. at 396 ("Credit allowed when the subsequent conviction is for an offense committed before the reversal of the first sentence in no way permits credit for future criminal acts"). Here, the defendant committed the rape (and other related offenses) years before he was incarcerated on the trafficking conviction. Consequently, the prohibition against banking time is not implicated and the judge should have allowed the defendant's motion in its entirety.
Conclusion.
So much of the order denying the defendant's motion for twenty days of credit for the time he spent in custody from January 18, 2007, to February 7, 2007, is reversed, and the case is remanded for entry of a new order crediting the defendant for twenty days of time served. The order is otherwise affirmed.
So ordered.
Vuono, Wolohojian & Kinder, JJ.
The panelists are listed in order of seniority.