Opinion
No. 12–P–1003.
2013-09-17
COMMONWEALTH v. Robert E. THOMAS.
By the Court (COHEN, GRAHAM & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, appearing pro se, appeals from a Superior Court order denying his motion to correct the mittimus and apply, to the longer of his concurrent sentences, jail credit he accrued while awaiting trial on new offenses and a probation surrender hearing ordered as a result of those new offenses. The Commonwealth opposed the motion on the ground that an award of jail credit would give the defendant double credit for the jail time. We reverse.
Background. The defendant was arrested on October 25, 2010, in Plymouth County for several offenses and held on $25,000 cash bail. Subsequently, he was indicted for two counts of breaking and entering in the daytime with intent to commit a felony, two counts of larceny over $250, possession of burglarious instruments, larceny of a firearm, and carrying a firearm without a license (“the underlying cases”).
At the time the defendant was arrested, he was on probation. As a result of his arrest on the underlying cases, the Middlesex County probation department requested a probation surrender hearing. At the hearing on December 17, 2010, the defendant was ordered held without bail pending a final probation surrender hearing.
On February 23, 2011, the defendant stipulated to a finding that he had violated the terms of his probation, and was sentenced to State prison for not less than one year and not more than one year and a day. At the sentencing, the defendant was awarded jail time credit, that included the entire time that he was in custody after his arrest on October 25, 2010, on the underlying cases to the date of sentencing on the probation violation, a total of 120 days.
The parties agree that the defendant was entitled to receive only sixty-seven days jail time credit on the probation violation matter. During the time from the date of his arrest on the underlying case to the date bail was set in the probation surrender matter, the defendant was held solely on the unrelated cases.
After the disposition of the defendant's probation violation, he entered guilty pleas on all of the underlying crimes. He received concurrent sentences of not less than five years to not more than six years for the convictions of the charges of breaking and entering, and possession of burglarious tools; and he received concurrent sentences of not less than four years to not more than five years for the convictions of larceny of a firearm, and unlawful possession of a firearm. All of these sentences were State prison sentences and all were concurrent with each other.
The defendant was not awarded any jail credit for his pretrial confinement.
The remaining convictions received sentences of concurrent probation to commence upon the defendant's discharge from the State prison.
Discussion. At issue in this case is whether G. L c. 279, § 33A, applies. The statute provides that “[t]he court on imposing a sentence of commitment to a correctional institution of the [C]ommonwealth, a house of correction, or a jail, shall order that the prisoner be deemed to have served a portion of said sentence, such portion to be the number of days spent by the prisoner in confinement prior to such sentence awaiting and during trial.”
The Commonwealth argues that applying 120 days jail credit to the defendant's longer concurrent sentences would amount to an improper award of double jail credits. See Commonwealth v. Carter, 10 Mass.App.Ct. 618, 411 N.E.2d 184 (1980); Commonwealth v. Harvey, 66 Mass.App.Ct. 297, 847 N.E.2d 355 (2006); Commonwealth v. Barton, 74 Mass.App.Ct. 912, 908 N.E.2d 794 (2009). We disagree.
See also, General Laws c. 127, § 129B, which states: “The sentence of any prisoner in any correctional institution of the [C]ommonwealth or in any house of correction or jail, who was held in custody awaiting trial shall be reduced by the number of days spent by him in confinement prior to such sentence and while awaiting trial, unless the court in imposing such sentence had already deducted therefrom the time during which such prisoner had been confined while awaiting trial.”
The purpose of the statute is to provide relief to defendants not convicted and not serving any sentence but who because of an inability to obtain bail were held in custody awaiting trial. Id. at 913, 908 N.E.2d 794. Fairness is the basic touchstone, and “is the appropriate measure in determining whether and to what extent ... credit for time” spent in custody shall be given. Chalifoux v. Commissioner of Correction, 375 Mass. 424, 427, 377 N.E.2d 923 (1978). The statute is not to be examined in an overly technical manner, but is rather to be “read against the backdrop of fair treatment of the prisoner.” Commonwealth v. Grant, 366 Mass. 272, 275, 317 N.E.2d 484 (1974).
Here, there is no question that the defendant was held on $25,000 cash bail on the underlying crimes and that his arrest on those charges caused him to be held without bail on the probation surrender. Therefore, until his admission to a finding of violation of his probation, the defendant was held in custody upon the orders of the Superior Court while awaiting trial on both matters.
Although the defendant received 120–days jail time credit on the one-year sentence he received for violation of the terms of his probation, in the present circumstances, those credits will have no practical benefit to him since they would not shorten the period of his incarceration on the concurrent sentences. In order to avoid such an unfair result, under such circumstances “it is incumbent on the sentencing judge to ensure that the defendant receives credit for that time against the higher sentence.” Commonwealth v. Murphy, 63 Mass.App.Ct. 753, 757, 829 N.E.2d 1149 (2005).
Accordingly, the order denying the defendant's motion to correct the mittimus is reversed, and the matter is remanded to the Superior Court for the entry of an order correcting the defendant's mittimus to reflect 120 days of jail credit on the underlying case for the time the defendant was held on bail awaiting trial in this matter.
So ordered.