Opinion
No. 15–P–982.
07-07-2016
COMMONWEALTH v. Jose NEGRON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jose Negron, appeals from the order denying his motions for jail credit. The defendant is serving a State prison sentence of not more than twenty-five years and not less than twenty years on a conviction in Superior Court of home invasion. We affirm.
In 1998, the defendant pleaded guilty in District Court to multiple charges set forth in two criminal complaints. The plea judge sentenced the defendant to concurrent terms of six months in the house of correction. On February 11, 2003, the defendant pleaded guilty in District Court to three counts set forth in a third criminal complaint. The same plea judge sentenced the defendant to concurrent one-year terms in the house of correction on counts one and two and to a concurrent two-year term in the house of correction on count three.
After a trial in the Superior Court in September, 2007, a jury found the defendant guilty of multiple crimes and the trial judge found the defendant guilty of several counts of committing a crime as an armed career criminal. The judge sentenced the defendant to the Massachusetts Correctional Institute at Cedar Junction to a term of not more than twenty-five years and not less than twenty years on one count; to concurrent terms of not more than ten years and one day and not less than ten years on three counts; to concurrent terms of not more than twenty years and not less than fifteen years on six counts; to a concurrent term of not more than fifteen years and one day and not less than fifteen years on one count; and to concurrent terms of not more than five years and not less than four years on three counts.
The counts are detailed in the Commonwealth's brief and record appendix.
In May, 2011, a motion judge allowed the defendant's motions for new trial, with the agreement of the Commonwealth, in the three District Court cases. In October, 2011, the Commonwealth filed nolle prosequis on two of the complaints. On March 23, 2012, the defendant filed motions to correct the mittimus and for jail credit in the Superior Court case. The judge allowed the motion, resulting in the application of 899 days of credit to the defendant's sentences on the Superior Court case. In May, 2012, a panel of this court affirmed the judgment on the first count in the Superior Court case and reversed the remaining judgments. Commonwealth v. Negron, 81 Mass.App.Ct. 1137 (2012). In September, 2012, the defendant pleaded guilty to two counts of the remaining District Court complaint and the Commonwealth filed a nolle prosequi on the third count. A second plea judge sentenced the defendant on each count to a one-year term in the house of correction to run concurrently with the sentence the defendant was serving in the Superior Court case and stated that the defendant would receive credit for time served. The defendant also filed a second motion for new trial in the Superior Court case. In October, 2012, that motion was denied and in December, 2012, the Commonwealth filed nolle prosequis on thirteen of the counts in the Superior Court case. In March, 2014, a different panel of this court affirmed the order denying the defendant's second motion for a new trial. Commonwealth v. Negron, 85 Mass.App.Ct. 1103 (2014).
In November, 2014, the defendant filed motions in the District Court for jail credit in the three District Court cases. In February, 2015, a second motion judge denied the motions. It is from the order denying these motions that the defendant appeals.
The second motion judge found that the defendant had served concurrent six-month sentences on the two criminal complaints in the District Court on which the Commonwealth subsequently had filed nolle prosequis and that he was not entitled to credit on any other sentence for the time that he had served on those convictions. The judge also observed that the defendant had received one year of credit when he pleaded guilty to the third District Court complaint in 2012.
We agree with the Commonwealth that the defendant is not entitled to jail credit in the Superior Court case for sentences that he served in the three District Court cases. The District Court cases are unrelated to the Superior Court case and the defendant served the sentences before he committed the offenses underlying the Superior Court case. The time for which the defendant seeks credit was not time spent awaiting trial, therefore G.L. c. 127, § 129B, and G.L. c. 279, § 33A, do not apply. In unrelated cases, a judge must consider whether, in the interest of fairness, the defendant was serving “dead time” but must also not permit the defendant to benefit from “banking time” for use against future sentences. Commonwealth v. Holmes, 469 Mass. 1010, 1011 (2014), quoting from Commonwealth v. Milton, 427 Mass. 18, 25 (1998).
Here, the defendant served the sentences in the District Court cases before he committed the home invasion. He was permitted to withdraw his guilty pleas because the colloquys were constitutionally defective. Where, as here, there is no issue of compelling circumstances, the defendant is not entitled to credit for time served before he committed the new offense. See id. at 1011–1012. See also the arguments and authorities cited in the Commonwealth's brief at pages 18 through 24.
Order denying motions for jail credit affirmed.