Opinion
14-P-527
03-27-2015
COMMONWEALTH v. DANIEL BRADLEY.
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 defendant argues that he was improperly denied jail credit for the time between August 3, 2012, to March 11, 2013. The defendant's motion for jail time credit was unsupported by any documentation that could be used to verify his contention that he is entitled to jail time credit. "The burden is on the appellant to ensure that an adequate record exists for an appellate court to evaluate." Commonwealth v. Woods, 419 Mass. 366, 371 (1995). Furthermore, a judge is "entitled to reject summarily any claim supported only by the defendant's self-serving affidavits," Commonwealth v. Lucien, 440 Mass. 658, 672 (2004), and here the defendant did not even submit affidavits to support his assertions. As a result, based upon the record presented to the motion judge, there was no error in denying the defendant's motion for jail credit.
The defendant made various motions in the trial court. In these motions, the defendant requested a variety of different credits, ranging from sixty-nine days to 270 days. The defendant argues here that he is entitled to a credit of 217 days.
The defendant's motions, included in the appendix, contain his assertions concerning when he was held for which charges. The defendant's appendix, however, only includes the motions submitted and the Superior Court docket in this case. The defendant did not include for the benefit of this court or presumably the court below, the docket in either of the other pending cases he references. The docket he did include shows that he was indicted on September 25, 2012, and bail was set on October 10, 2012. The Commonwealth does not dispute the defendant's assertion that he was initially arrested, arraigned, and released on bail from the complaint underlying the indictment in this case around June 20, 2012. The Commonwealth submitted a supplemental appendix including the counts of the indictment, which indicate that the crimes at issue occurred in September of 2011.
Nonetheless, even if we accepted the defendant's factual assertions, he is not entitled to jail credit. From August 3, 2012, to October 11, 2012, the defendant asserts he was held awaiting trial on three different pending cases, including the one for which he now seeks jail credit. On October 11, 2012, the defendant asserts he was sentenced in one of the unrelated cases and that judge provided him with jail credit for the time served prior to sentencing on that two-year sentence. From October 11, 2012, to March 11, 2013, the defendant admits he was serving the sentence on that unrelated case. On March 11, 2013, the sentence at issue was imposed forthwith, thereby ending the defendant's two-year sentence.
The defendant argues that because this sentence was imposed forthwith, he did not receive the benefit of the credit and, therefore, he is entitled to a credit for the days served. However, when the judge in the unrelated case granted the defendant credit for time served, that sentence effectively had begun on August 3, 2012. See Commonwealth v. Barton, 74 Mass. App. Ct. 912, 913 (2009). The defendant is not entitled to a credit for the time he was serving a sentence for another crime. See Libby v. Commissioner of Correction, 353 Mass. 472, 475 (1968) ("The statutory purpose was not to allow deductions for time served under sentence for another crime"); Commonwealth v. Murphy, 63 Mass. App. Ct. 753, 754 (2005) ("There is . . . no claim that [the defendant] should receive credit for the time he was serving a sentence on an unrelated matter"). Furthermore, by imposing this sentence forthwith, the judge effectively credited the defendant with the remainder of the defendant's two-year sentence on the unrelated case, which exceeds the time the defendant served prior to pleading guilty. "The governing principle in the application of G. L. c. 279, § 33A, . . . is fair treatment of the prisoner." Commonwealth v. Blaikie, 21 Mass. App Ct. 956, 957 (1986). See Williams v. Superintendent, Mass. Treatment Center, 463 Mass. 627, 630-631 (2012) ("[C]riminal defendants have a right to have their sentences reduced by the amount of time they spend in custody awaiting trial, unless in imposing the sentence, the judge has already deducted such time or taken it into consideration in determining the sentence"), quoting from Commonwealth v. Milton, 427 Mass. 18, 23-24 (1998). There is no special fairness consideration that supports providing the defendant with additional credit here.
This general proposition is not altered by the fact that the judge in the instant case ordered that the sentence be imposed forthwith and, therefore, terminated the defendant's sentence for an unrelated case.
Orders denying motions for jail credit affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Trainor, Brown & Vuono, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: March 27, 2015.