Opinion
No. 10–P–684.
2013-03-11
COMMONWEALTH v. Kendell A. THOMPSON.
By the Court (GRAINGER, MEADE & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant faced three indictments in Berkshire Superior Court: trafficking in cocaine in an amount of 100 grams or more, conspiracy to violate drug laws, and illegal possession of a firearm. By letter dated October 27, 2005, the Commonwealth formally offered a plea agreement. Under that proposal, the defendant would plead guilty to so much of the first two indictments as alleged “28 grams to 100 grams” of cocaine, and the third indictment would be dismissed. The offer included a joint sentencing recommendation of eight to ten years in State prison “to be served concurrently with present sentence [which the defendant was serving pursuant to a conviction arising in Franklin County].” At a hearing held on December 28, 2005, the defendant agreed to the Commonwealth's plea offer. After determining that the plea was voluntary and knowing, the judge accepted it and—consistent with the parties' joint recommendation-sentenced the defendant to concurrent terms of eight to ten years in State prison. Also consistent with the terms of the plea agreement, the judge allowed the defendant to serve these sentences concurrently with the one the defendant was already serving on the Franklin County conviction. The new sentences were entered on the docket, and a mittimus issued. Seeking to revise and revoke his sentence, the defendant filed a pro se motion to that effect on February 28, 2006. After that motion was denied, the defendant filed two additional motions, one to “correct” the mittimus, and one seeking credit for pretrial jail time. Both were denied, but—on reconsideration—the defendant was allowed credit for the period from November 19, 2004 (the date he was arraigned on the Berkshire indictments) until May 11, 2005 (the date he began serving his Franklin sentence), a total of 174 days. A corrected mittimus was issued on March 31, 2007.
Almost three years later, the defendant filed a motion seeking to allow his sentences “to be served nunc pro tunc.” Although that motion does not appear in the record, it appears that the defendant was seeking to have his Berkshire sentences begin to run on May 11, 2005 (the date he began his Franklin sentence), not on December 28, 2007 (the date that the Berkshire sentences were imposed). Treating this motion as one to revise and revoke his sentence, the judge denied it as untimely. The defendant has appealed.
The judge correctly denied the defendant's motion as untimely. See Commonwealth v. Callahan, 419 Mass. 306, 308 (1995). Although that alone disposes of the defendant's appeal, we add that there is no merit in the defendant's underlying substantive arguments. While the defendant's pro se brief is not clear, the defendant appears to be arguing that the agreement that the Berkshire sentences would run concurrently with the Franklin sentence means that the parties agreed that the Berkshire sentences were to be imposed nunc pro tunc to the commencement of the Franklin sentence. That is an unreasonable interpretation of a plea agreement that was clear on its face.
This puts the defendant's arguments with regard to his sentence in their most favorable light. To the extent that the defendant is arguing something else, those arguments have no merit.
The defendant seeks to raise a number of other arguments, such as asserting that his counsel's failure to file a motion to suppress amounted to ineffective assistance of counsel. Those arguments are not properly before us, nor do we discern any merit in them.
Order denying motion to revise and revoke sentence affirmed.