Opinion
10-P-1448
09-28-2011
COMMONWEALTH v. GEORGE MOSES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At all times during which the defendant was incarcerated prior to the revocation of his probation on the Plymouth charges reflected on docket number 0359CR003135, he was serving time on unrelated offenses. The defendant is not entitled to credit on the Plymouth offenses for time served under sentences imposed for unrelated offenses. See Commonwealth v. Carter, 10 Mass. App. Ct. 618, 619-620 & n.4 (1980); Commonwealth v. Barton, 74 Mass. App. Ct. 912, 913 (2009). There accordingly is no merit to the defendant's contention that he is entitled to more than the ninety days' credit he received.
At the time the present case was entered on the Plymouth docket, the defendant was being held pending trial on charges then pending in Hingham District Court, and the docket of the Hingham matter reflects that at the time of sentencing on that matter, the defendant was credited in that case for all of the time he was held before disposition of the Hingham matter.
In addition, after committing crimes in Northampton on January 1, 2007, the defendant fled when police attempted to apprehend him on January 12, and was at large at the time the complaint in the Northampton matter issued and the Plymouth County probation department issued a warrant seeking to revoke his probation. He appeared for arraignment on the Northampton charges on March 22, 2007, and thereafter was incarcerated both pretrial and under the sentence imposed in the Northampton matter at all times prior to the revocation of his probation in the present matter.
Indeed, as the Commonwealth suggests, the defendant may well have received more credit than he was due. Our view of the case does not require us to resolve the disagreement between the parties over whether the credit the defendant received relates to a period between the entry of the Plymouth charges and the date of the order placing the defendant on probation, or instead to some portion of the period immediately preceding the probation revocation hearing. We note, however, that if the defendant was indeed being held on the Plymouth matter (rather than the Northampton matter) for ninety days immediately preceding the probation revocation hearing he should not be able to count that time toward service of his sentence on the Northampton charge, for the same reasons discussed above.
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Order revoking probation affirmed.
By the Court (Kafker, Green & Grainger, JJ.),