Opinion
21-P-1089
05-27-2022
COMMONWEALTH v. OMAR S. BROWN
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 defendant, Omar S. Brown, appeals from the denial of his motion for sentence credit, arguing that the three years of "dead time" he served in a 2005 case should be applied to the sentence he served in a subsequent case. He relies on no procedural rule for the relief sought, and instead focuses on "'equitable principles' of justice and fairness." Following the clear precedent of Commonwealth v. Caliz, 486 Mass. 888 (2021), and Commonwealth v. Holmes, 469 Mass. 1010 (2014), and discerning no error in the motion judge's findings and rulings, 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).
The Commonwealth argues that the Rules of Criminal Procedure bar relief in this case because the defendant's request for reduction of sentence is necessarily either a time-barred motion to revise and revoke his sentence, see Mass. R. Crim. P. 29 (a), as appearing in 474 Mass. 1503 (2016), or a motion to correct an illegal sentence, see Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), which applies only to a defendant currently serving the sentence being challenged. See Commonwealth v. Williams, 96 Mass.App.Ct. 610, 613-614 (2019). We note that the issue of dead time credit for a prior vacated sentence has been decided without reference to the Rules of Criminal Procedure. See Commonwealth v. Caliz, 486 Mass. 888 (2021); Commonwealth v. Bond, 88 Mass.App.Ct. 901 (2015). Because we affirm the motion judge's decision for other reasons, we do not reach this argument.
Background.
The factual and procedural background, which we draw from the record, is not disputed by the parties. On May 24, 2006, the defendant pleaded guilty in the Superior Court to several charges for which he had been indicted the previous year (2005 case). He was sentenced to State prison for a term of three years to three years and one day for trafficking cocaine, and he concluded that sentence on October 20, 2008.
In addition to the charge of trafficking cocaine on which he was sentenced, the defendant pleaded guilty to charges of unlawful possession of marijuana and resisting arrest, which were placed on file. As part of the plea agreement, the Commonwealth filed a nolle prosequi on indictments for distribution of cocaine (subsequent offense) and violation of the controlled substance law in a school zone.
On March 28, 2012, the defendant was indicted for assault and battery on a pregnant person and assault and battery by means of a dangerous weapon (2012 case). Both of those indictments also charged him with being a habitual criminal, using the 2005 case as one of the predicate offenses. On October 26, 2012, a jury convicted the defendant of assault and battery on a pregnant person, and on October 31, 2012, he received a four to five year State prison sentence. We affirmed this conviction on March 6, 2015. See Commonwealth v. Brown, 87 Mass.App.Ct. 1108 (2015). The defendant was released from his sentence on the 2012 case no later than October 21, 2017. On July 27, 2017, in connection with the Amherst drug lab scandal, see Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700 (2018) (CPCS), the Commonwealth filed a nolle prosequi on the 2005 drug offenses, and the convictions subsequently were vacated, leaving the defendant with three years of dead time on his completed sentence on the 2005 case.
General Laws c. 279, § 25 (a.), defines a habitual criminal as "[w]hoever is convicted of a felony and has been previously twice convicted and sentenced to state prison . . . for a term of not less than 3 years."
The trial judge entered a required finding of not guilty on the assault and battery by means of a dangerous weapon indictment. The Commonwealth elected not to proceed on the habitual criminal portion of the remaining indictment after the jury's guilty verdict.
The drugs at issue were analyzed neither by Sonja Farak nor "at the Amherst lab on or after January 1, 2009"; accordingly, the case was not subject to dismissal pursuant to CPCS, 480 Mass. at 729. Nevertheless, the Commonwealth filed a nolle prosequi "in the best interest of justice."
The defendant was indicted on March 13, 2019, for various narcotics and firearms offenses, all as a habitual criminal, as well as for assault and battery on a police officer, resisting arrest, and possession of a class D substance with intent to distribute (2019 case). The predicate offenses for the habitual criminal enhancement alleged in those indictments were the 2012 case and a 1995 drug distribution conviction. On February 21, 2020, the defendant filed a motion for reduction of his sentence on the 2012 case. He sought to apply the three years of dead time served on the 2005 case to the sentence he already had served on the 2012 case. The defendant acknowledges that the purpose served by this request was to reduce the sentence in the 2012 case to something less than three years, thereby precluding its use as a predicate offense for the habitual criminal component of the 2019 case. The motion was denied and the defendant filed a timely notice of appeal.
According to the parties, the 2019 case is still pending in Worcester Superior Court.
Discussion.
Under certain circumstances, an incarcerated defendant is entitled to statutory credit for time spent in custody. See G. L. c. 127, § 129B; G. L. c. 279, § 33A. Otherwise, "considerations of fairness" direct the analysis of whether credit for time served is due. Holmes, 469 Mass. at 1011. In this context, equitable principles "weigh heavily against 'a prisoner having served bad or dead time for which no credit is given.'" Caliz, 486 Mass. at 891, quoting Manning v. Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass. 387, 396 (1977). However, even in a case involving dead time, a request to apply jail credit from one case to another should be denied where "there was no substantive or temporal connection between the earlier sentence and the new sentence." Holmes, 469 Mass. at 1012. This prohibition against using "banked time" "outweighs any concern about dead time." I_d. at 1011.
Although the Commonwealth originally sought to enhance the sentence in the 2012 case by charging the defendant as a habitual criminal based in part on the 2005 case, the decision not to prosecute that portion of the indictment broke any formal link between the two cases. Of course, the judge in the 2012 case still might have considered the 2005 conviction when she sentenced the defendant in the 2012 case. Therefore, it is theoretically possible that, as a matter of fact, the sentence in the 2012 case was longer than it otherwise would have been. At oral argument, however, the defendant expressly disavowed making such an argument, and he acknowledged the difficulties inherent in trying to divine a sentencing judge's thought processes. The defendant argues instead that he is entitled to mandatory dead time credit from the 2005 case, and that this should have been taken off the already-served sentence on the 2012 case. The fundamental problem with this argument is that, as the defendant acknowledges, the 2005 and 2012 cases involve unrelated crimes. Accordingly, the defendant's request for dead time credit runs directly afoul of Holmes, 469 Mass. at 1012.To be sure, the Supreme Judicial Court has recognized the possibility of a defendant receiving dead time credit in an unrelated criminal case "where there is actual innocence or some other equally compelling circumstance." Holmes, 469 Mass. at 1012 n.3. In this case, neither situation applies. See Caliz, 486 Mass. at 893 ("In crafting this remedy [for Amherst drug lab cases] we did not infringe on the balance between dead time and bank time struck by Holmes, . . . the defendant is not entitled to mandatory credit in this case") (citation omitted). The defendant's attempt to distinguish his case from Caliz because the application of dead time credit here would be to a past case rather than a future crime is unavailing. The concern underlying the practice of banking dead time is its potential to authorize "'a line of credit for future crimes' effectively 'grant[ing] prisoners license to commit future criminal acts with immunity.'" I_d. at 892, quoting Holmes, 469 Mass. at 1012. We discern no meaningful difference between banking dead time for use against a future sentence and doing so to avoid the consequences of a future offense that relies on a previous sentence to support its enhanced sentencing provision.
The defendant's assertions that there is somehow a "quasi-relation" between the two cases are not persuasive.
Pursuant to G. L. c. 279, § 25 (a.), punishment for a convicted "habitual criminal" is imprisonment "for the maximum term provided by law."
Order denying motion for reduction of sentence affirmed.
The panelists are listed in order of seniority.