Commonwealth v. Velez , 86 Mass. App. Ct. 727 ( 2014 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
13-P-1334 Appeals Court
COMMONWEALTH vs. WILLIAM VELEZ.
No. 13-P-1334.
Suffolk. November 3, 2014. - December 9, 2014.
Present: Grainger, Rubin, & Hanlon, JJ.
Imprisonment, Credit for time served. Practice, Criminal,
Sentence, Probation.
Indictment found and returned in the Superior Court
Department on September 3, 2009.
A motion for pretrial confinement credit, filed on April
17, 2013, was considered by Frances A. McIntyre, J.
Rebecca A. Jacobstein for the defendant.
Helle Sachse, Assistant District Attorney, for the
Commonwealth.
HANLON, J. The defendant appeals from the partial denial
of his motion for pretrial confinement credits on the sentence
imposed on his probation revocation, claiming that he is
entitled to an additional fifty-six days of credit for time he
2
spent in jail awaiting trial on what he describes as unrelated
charges. We affirm in part and reverse in part.
Background. "As with most sentencing disputes, a specific
chronology is useful to clarify the issues." Commonwealth v.
Holmes, 83 Mass. App. Ct. 737, 737 (2013), S.C., 469 Mass. 1010
(2014). At various times during the period at issue, the
defendant had three unrelated, open criminal charges -- an
assault and battery charge, an unarmed robbery charge that was
reduced to larceny from the person, and a charge of failure to
register as a sex offender. It is the failure to register
charge that is primarily at issue in this case; it arose in the
Waltham District Court, which issued a criminal complaint for
that offense on May 8, 2009. The defendant was arraigned on
July 22, 2009, and was held at the Nashua Street jail on $5,000
bail from the July 22, arraignment date until at least August
24, 2009.1
The docket sheet in the record does not indicate that bail
ever was posted or reduced; however, the parties appeared to
agree that the defendant was not held on that charge after
August 24, 2009, apparently in reliance on the letter from the
keeper of the records at the Nashua Street jail. See note 1,
1
The appendix includes a letter from the keeper of the
records at the Nashua Street jail which indicates that the
defendant was incarcerated on the failure to register charge at
the Nashua Street jail from July 22, 2009, through August 24,
2009.
3
supra. However, the District Court docket sheet also shows
that, on August 24, 2009, the failure to register case was
continued to September 29, 2009, with the notation "Habe to
Nashua St. Jail same bail $5/0'." From this, we conclude that,
although the defendant was held in the Suffolk County (Nashua
St.) jail on other charges, and required a writ of habeas corpus
to bring him back to the District Court on September 29, he also
was transported with a $5,000 bail mittimus to secure his return
to the District Court to appear for the failure to register
case.2 There is no entry indicating that the bail remained the
same at the next hearing on September 29, but, by that time, the
defendant had been indicted, and the indictment warrant would
have prevented his release regardless of the District Court bail
status.
The defendant was indicted on the failure to register case
on September 3, 2009, and arraigned in Superior Court on October
7, 2009. At his arraignment, he was held on the same $5,000
cash bail as in the related District Court case; he remained in
custody until March 31, 2010, when he pleaded guilty and was
sentenced to three years' probation. On September 13, 2011, the
defendant was before the court for a probation violation hearing
2
At oral argument, the defendant agreed with this reading.
The Commonwealth agreed that the docket sheet could be read that
way, but maintained that the record of the Nashua Street jail
was more likely to be accurate.
4
and afterwards was released on personal recognizance. He
defaulted on November 29, 2011, and remained in default until
January 10, 2012, when he appeared before the court; he was then
held until February 28, 2012, when he was found in violation of
the terms of his probation. On March 1, 2012, the defendant was
sentenced to State prison for five years to five years and one
day. It is against this sentence that the defendant seeks
credit for time served.
On April 17, 2008, more than one year before the complaint
for failing to register issued, the defendant had been charged
in the Boston Municipal Court with one count of assault and
battery. He pleaded guilty on August 12, 2008, and was placed
on probation for two years. On August 26, 2008, the defendant
was before the court for a preliminary probation violation
hearing. That matter was continued several times until the
defendant failed to appear on November 19, 2008. On July 9,
2009, the defendant was back before the court for violating the
terms of his probation; he was detained on the probation
violation until August 21, 2009, when he stipulated to the
probation violation. His probation was then extended to August
11, 2010. A warrant was issued for the defendant's arrest on
that probation case when he failed to appear on March 22, 2010.
On April 1, 2010, the day after he pleaded guilty to failing to
register as a sex offender, the defendant went back before the
5
Boston Municipal Court on the assault and battery case; his
probation was then terminated, and he was discharged.
In addition, on August 26, 2008, the defendant had been
charged in the Boston Municipal Court with unarmed robbery and
assault and battery by means of a dangerous weapon (larceny
charge). He was held initially, but bail was reduced to $400
cash on September 23, 2008, and he appears to have posted the
bail. As noted earlier, the defendant defaulted on November 19,
2008, and remained in default until he came back before the
court on July 9, 2009. He was held on $750 cash bail until
October 21, 2009, when the Commonwealth answered not ready for
trial, and the charges were dismissed "For Want of Prosecution."
The defendant originally was given fifty-one days' credit
for the time he was held between January 10, 2012, through
February 29, 2012, while the probation violation hearing (on the
failure to register charge) was pending, before he received a
sentence on March 1. He later was given an additional 176 days
of credit for the time he spent from October 7, 2009, when he
was arraigned in Superior Court on the failure to register
charge, through March 31, 2010, when he was placed on probation.
The defendant then filed a motion requesting pretrial
confinement credit for ninety additional days, from July 9,
2009, through October 6, 2009. The judge allowed the motion
with respect to the thirty-four days from July 22, 2009, through
6
August 24, 2009, when the parties agree that the defendant was
held on District Court bail for the failure to register
complaint. The judge denied the motion with respect to the
remaining fifty-six days.
Discussion. The defendant now argues that the judge
unfairly declined to credit him with fifty-six days he spent
incarcerated awaiting trial on what he characterized originally
as unrelated charges. The defendant's request for credit can be
divided into two parts: first, during the thirteen days from
July 9, 2009, through July 21, 2009, he was held on both the
assault and battery charge and the larceny charge, but not the
failure to register charge; second, during the forty-three days
from August 25, 2009, through October 6, 2009, he was held on
the larceny charge and, as appears from our review, also on the
failure to register charge.
The first period, that is, the time the defendant was held
only on the assault and battery and the larceny charges was for
different crimes, unrelated to and, in fact, preceding his
arraignment on the failure to register charge for which he is
now serving a sentence. A defendant normally is not entitled to
credit for time spent in detention on unrelated charges. See
Commonwealth v. Milton, 427 Mass. 18, 24 (1998) ("[T]ime spent
in custody awaiting trial for one crime generally may not be
credited against a sentence for an unrelated crime"). While
7
"[i]n some circumstances, a defendant may be allowed to credit
time in an unrelated case if necessary to prevent a defendant
from serving 'dead time,'" ibid., this first period of time is
not such a circumstance. Permitting the defendant to credit
those days is tantamount to permitting him to "bank" time -- not
against the sentence on the failure to register charge, which
crime, admittedly, he had already committed, but against the
sentence on the probation violation on the failure to register
charge, which came later, at least after he was placed on
probation on March 31, 2010. As the court pointed out in
Commonwealth v. Holmes, 469 Mass. at 1011, "the banking
prohibition outweighs any concern about dead time."
The second period, from August 25, 2009, through October 6,
2009, is different. During that period, it appears that,
notwithstanding the $750 bail on the untried larceny case, the
defendant actually and primarily was held on the $5,000 bail
that was set initially in the District Court on the failure to
register charge at issue, and reaffirmed in Superior Court when
the defendant was arraigned on the indictment for that charge.
Despite the judge's contrary finding, the case records on that
charge support our conclusion that the time period at issue was
governed by the failure to register charge that is the basis of
the defendant's sentence. It is also clear that any time spent
in custody awaiting trial on a charge should be credited against
8
a later sentence on that offense, even if a period of probation
precedes the imposition of the committed sentence. See Watts v.
Commissioner of Correction, 42 Mass. App. Ct. 951, 953 (1997)
(Days spent awaiting trial on a charge that resulted in a
probation sentence "are not inevitably lost to the [defendant]
because he would become entitled to a credit for them in the
event he were to be imprisoned for a probation violation with
respect to his suspended sentences on the new crimes. See G. L.
c. 279, § 33A").
Insofar as the order on the defendant's motion for pretrial
confinement credit denies credit for the thirteen-day period
between July 9, and July 21, 2009, it is affirmed. As to the
second forty-three day period at issue, that is, from August 24
to October 6, 2009, the order is reversed, and a new order shall
enter allowing the defendant credit for that time against the
sentence he is now serving.
So ordered.
GRAINGER J. (concurring). I concur in the result reached
by the majority, and wish to acknowledge the precision and
conscientious analysis required to parse a record of this
complexity. I write separately to note that our current case
law obviates the need for much of the careful review afforded
this defendant. While fairness is the professed touchstone by
which we determine entitlement to credit for previous
incarceration,1 Commonwealth v. Holmes, 469 Mass. 1010, 1011
(2014) (Holmes), citing Chalifoux v. Commissioner of Correction,
375 Mass. 424, 427-428 (1978), our law now severely
circumscribes that concept.
This is best illustrated by the thirteen-day period this
defendant was held for an "unrelated" offense, after which he
was released without any change to his previous sentence of
straight probation, and for which he then sought credit. The
motion judge denied his request, speculating that "it may have
been considered by the prosecutor and the Probation Department
that [the defendant's] pretrial detention was a sufficient
penalty for the circumstance." The judge's speculation seeks to
justify the thirteen days of incarceration as tantamount to the
imposition of a sentence for time served, albeit without the
1
The defendant's petition for credit implicates, but does
not explicitly invoke, the prohibition under the Fifth Amendment
to the United States Constitution against deprivation of liberty
without due process. See art. 12 of the Massachusetts
Declaration of Rights.
2
benefit of any actual finding, conviction, or accompanying
sentencing procedure. Yet even that strained rationale no
longer appears necessary to meet our current standard of
fairness, as the Supreme Judicial Court has determined that we
will not require the Commonwealth to expend resources in order
to provide a legal basis for incarceration merely to avoid the
possibility that a defendant may seek credit for that
imprisonment at some future time.2 Holmes, supra at 1013.
Additional factors, disconcertingly asserted by our case
law as pertinent to credit for dead time, are also present here.
This defendant is a multiple recidivist. Without a second
incarceration, credit is not possible; recidivism is thus a
precondition to raise the issue of credit for dead time. Yet
even as it does so, recidivism is considered a factor to be
weighed against granting credit for dead time, automatically
diminishing entitlement to fairness. Ibid. I submit that
recidivists have the same right as other individuals not to be
incarcerated without a legal basis, and to receive credit if it
is determined that they were.
2
I concur independently of this issue because I agree that
"banking," properly defined, provides a legitimate basis to deny
credit here, as the defendant knew he had been released without
a finding before he violated his probation on the failure to
register charge.
3
Recidivism obviously does not come into play in the
provision of credit for time served in computing a sentence for
the same crime after trial and conviction. Credit for such
pretrial confinement is not subject to dispute in Massachusetts
and does not raise the issue of dead time, as it involves no
subsequent reversal. It does, however, provide the purely
semantic source of the concept, imported into our cases, of the
entitlement to credit for unjustified imprisonment only on a
"related" offense. This has no rational nexus to any
considerations of fairness. Holmes, supra at 1012.
("Substantive or temporal connection" constitute very important
factors in dead time consideration).
Yet additionally, our cases have held that a sentence fully
served, then vacated, is less deserving of credit than one
interrupted in medias res. Holmes, supra at 1012. I submit
that the application of redress only to a shorter period of
legally unsupported imprisonment, but not to a longer one, is
illogical, and certainly not consonant with any rational notion
of fairness.
Finally, our case law holds that the underlying reason a
conviction is vacated should be considered in deciding whether
to credit a defendant for time served pursuant to that
conviction. We favor reversals based on indicia of actual
innocence. For example, in Holmes, the defendant served two
4
years pursuant to a conviction that was vacated when a judge
determined the defendant had not received effective assistance
of counsel. Thus, despite the reversal of his conviction,
Holmes did not fulfil what can only be described as a judicially
established defendant's burden to establish his innocence of the
underlying charge. Holmes, supra at 1012 n.3. To be sure,
Holmes states that there may arise an "equally compelling
circumstance" analogous to a determination of innocence that
would meet the test of fairness. But ineffective assistance of
counsel, notwithstanding its constitutional dimension,3 is found
not to meet this test.
I concur in the denial of credit in this case because
knowledge of a previous legally unjustified confinement can be
imputed to this defendant at the time when he again violated his
probation. If the timing were otherwise, fairness would compel a
contrary result.
3
See Sixth Amendment to the United States Constitution;
art. 12 of the Massachusetts Declaration of Rights; and
Strickland v. Washington, 466 U.S. 668, 686 (1984).