Opinion
No. 11–P–586.
2012-08-13
COMMONWEALTH v. Dana S. BRADLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant pleaded guilty on June 28, 2006, to six drug-related charges. On count one (trafficking in cocaine, G.L. c. 94C, § 32E[ b ] ), the defendant was sentenced to a State prison term of five years to five years and one day. As most pertinent to this appeal, on count two (a school zone violation, G.L. c. 94C, § 32J, based on count one), the defendant was sentenced to a consecutive State prison term of two years to two years and one day. On count three (possession of cocaine with intent to distribute, G.L. c. 94C, § 32B[ a ] ), the defendant was sentenced to a State prison term of three years to three years and one day, concurrent with the sentence imposed on count one. On count four (another school zone violation), the defendant was sentenced to a State prison term of two years to two years and one day, consecutive to the sentence imposed on count three and concurrent with the sentence imposed on count one. In addition, on count five (possession of a class D substance with intent to distribute, G.L. c. 94C, § 32C[ a ] ), the defendant was sentenced to a house of correction term of one year. Lastly, on count six (another school zone violation), the defendant was sentenced to a two-year house of correction sentence. The two house of correction sentences were consecutive to each other and concurrent with the State prison sentence on count one. The defendant appeals from the Superior Court order denying his “motion for judgment and order” that he was entitled to parole eligibility under G.L. c. 94C, § 32J.
The defendant sought to be declared eligible for parole on July 30, 2011, rather than July 30, 2012. The defendant's appeal is unavailing for several reasons.
.General Laws c. 94C, § 32J, as amended through St.2010, c. 256, § 72, provides in pertinent part as follows:
“Any person who violates the provisions of section thirty-two, thirty-two A, thirty-two B, thirty-two C, thirty-two D, thirty-two E, thirty-two F or thirty-two I while in or on, or within one thousand feet of the real property comprising a public or private accredited preschool, accredited headstart facility, elementary, vocational, or secondary school whether or not in session, or within one hundred feet of a public park or playground shall be punished by a term of imprisonment in the state prison for not less than two and one-half nor more than fifteen years or by imprisonment in a jail or house of correction for not less than two nor more than two and one-half years. No sentence imposed under the provisions of this section shall be for less than a mandatory minimum term of imprisonment of two years. A fine of not less than one thousand nor more than ten thousand dollars may be imposed but not in lieu of the mandatory minimum two year term of imprisonment as established herein. In accordance with the provisions of section eight A of chapter two hundred and seventy-nine such sentence shall begin from and after the expiration of the sentence for violation of section thirty-two, thirty-two A, thirty-two B, thirty-two C, thirty-two D, thirty-two E, thirty-two F or thirty-two I....
“ Any person serving a mandatory minimum sentence for violating this section shall be eligible for parole after serving one-half of the maximum term of the sentence if the sentence is to a house of correction, [subject to certain exceptions not relevant here].” (Emphasis added.)
The judge denied the motion without reaching the merits, ruling that “the motion must be denied insofar as the relief sought (right to parole) is not within the purview of the criminal case.” See, e.g., Barriere v. Hubbard, 47 Mass.App.Ct. 79, 79 n. 1, 81–82 (1999) (determination of parole eligibility date challenged by action for declaratory and injunctive relief against Massachusetts Parole Board). In light of our alternative grounds for affirmance discussed infra, we need not decide the correctness of the judge's reasoning.
First, both the defendant and the Commonwealth stated in their briefs that the defendant would be eligible for parole on July 30, 2012. Hence, the dispute over the earlier parole eligibility which the defendant sought in this appeal is moot.
Second, even passing the mootness point, the parole eligibility argument under G.L. c. 94C, § 32J, raised by the defendant would not have been availing in any event. In his brief, the defendant suggests that he would have been eligible for the earlier parole with respect to the sentence on count two (the school zone violation based on trafficking in cocaine), for which the sentence was a State prison term of two years to two years and one day to be served consecutive to the sentence for cocaine trafficking. This contention is not correct because by its terms § 32J does not apply to a State prison sentence, but only to a house of correction sentence.
We note that at no time has the defendant moved either to revise and revoke the sentence on count two, or to be released from unlawful restraint on count two, on the basis of illegality of the sentence. (The State prison sentence imposed on count two, of two years to two years and one day, is less than the minimum of two and one-half years required by G.L. c. 94C, § 32J, for a sentence to State prison; however, the two-year minimum term is consistent with a house of correction sentence under the statute.)
Order denying motion for judgment and order affirmed.