Opinion
No. 96-4541
September 4, 1998
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
This is a Petition for a Writ of Habeas Corpus brought by state prisoner Richard J. Guppy ("Guppy"), pursuant to Part II, chapter 6, article 7 of the Massachusetts State Constitution. Guppy seeks immediate release from the custody of the Massachusetts Department of Correction ("DOC") and the Massachusetts Correctional Institution Concord ("MCIC"), where he is now imprisoned. Guppy challenges the manner in which the DOC has calculated his various state prison sentences and the manner in which the Parole Board ("Board") has applied G.L.c. 127, § 149 to him. He claims that the defendants' actions have deprived him of over 15 years of parole credit time. Defendants now move for summary judgment. For the reasons that follow, Defendants' Motion for Summary Judgment is ALLOWED.
FACTS
An extensive chronology underlies the facts of this case:
On January 12, 1977, Guppy was sentenced in Norfolk Superior Court to four concurrent 8 to 10 year state prison sentences, all for breaking and entering in the daytime, and several shorter concurrent sentences for larceny, assault by means of a dangerous weapon, as well as possession of burglarious tools.
Less than two years later, on December 22, 1978, Guppy escaped from Lancaster Pre-Release Center.
On June 20, 1979, Guppy was arrested in Florida for breaking and entering in the daytime, and sentenced in that state to a term of 7 to 10 years. On that date, the Florida prison authorities informed the Massachusetts Department of Corrections of Guppy's presence in their jails because of the outstanding escape warrant held in Massachusetts.
Guppy was released from Florida's custody on February 19, 1981 and was re-incarcerated in Massachusetts on September 10, 1981 (a period of 203 days). After he had been re-incarcerated in Massachusetts, the DOC informed Guppy of its determination that his years served in Florida represented "parole dead time."
1,022 days passed between Guppy's first escape on December 22, 1978 and his surrender in Massachusetts on September 10, 1981. In and around that time, Guppy filed suit against the commonwealth, challenging its decision to title the 1,022 days as "dead time." Ultimately, the Massachusetts Appeals Court ruled against him, opining that Guppy was not entitled to parole credit for the days served in Florida. See Commonwealth v. Guppy, 22 Mass. App. Ct. 1103, 491 N.E.2d 1088 (1986), as further described on p. 8 below.
"Parole dead time" is time that does not count toward the computation of one's eligibility for parole.
On June 7, 1982, Guppy received a 7 to 10 year sentence to Massachusetts state prison from Middlesex Superior Court, also for breaking and entering in the daytime. Guppy's 1977 and 1982 sentences are referred to collectively as his "A" sentences, 15-20 years in aggregate.
Guppy was paroled on his aggregate "A" sentences on September 19, 1983. Parole was revoked and a parole violation warrant issued by the Board on June 11, 1984 given Guppy's arrest for breaking and entering and other violations of his parole conditions.
On December 18, 1984, the Norfolk Superior Court sentenced Guppy to 9.5 to 10 years in state prison for breaking and entering. On July 25, 1985, the same court sentenced him to 7 to 10 years, from and after, again for breaking and entering in the daytime. These two — Guppy's 1984 and 1985 sentences — are referred to collectively as his "B" sentences.
On May 15, 1988, Guppy escaped from the Franklin County House of Correction where he was then serving his "B" sentences. He surrendered less than a week later on May 20, 1988. On May 24, 1989, Guppy received an additional 1 year term from the Greenfield District Court for escape. Guppy then continued service of this aggregate "B" sentences.
According to the Department of Correction, Guppy never served this sentence, as the Greenfield District Court never forwarded its mittimus to the Department of Correction. Thus, Guppy never served this one-year sentence.
On January 31, 1989, the Massachusetts Parole Board voted to amend the date of issuance of Guppy's parole violation warrant on his "A" sentences. They changed the date of issuance from June 11, 1984 to December 7, 1984. Their action effectively restored six months of parole "dead time" to Guppy.
Therefore, after this amendment, according to the defendants, Guppy officially spent from September 19, 1983 to December 7, 1984 on parole, a total of 445 days.
Four years later, on April 28, 1993 the Board voted to withdraw altogether Guppy's parole violation warrant on his aggregate "A" 15-20 year term. The withdrawal effectively restored Guppy to parole status regarding his "A" sentences. From that date until October 3, 1994, Guppy earned parole credit days for his "A" sentences, while he served in prison the remaining time of his "B" sentences.
On May 16, 1994 Guppy was discharged from the custody of the Department of Correction upon the completion of his aggregate "B" sentences. The DOC then placed Guppy on active parole supervision regarding the remainder of his "A" sentences.
However, less that four months later, on September 16, 1994, Guppy again violated his parole. He was arrested on multiple charges of breaking and entering, drug and weapons charges. Guppy also violated a G.L.c. 209A restraining order. Additionally, on September 19, 1994, the Quincy District Court sentenced Guppy to 90 days in the Norfolk House of Correction for contempt.
On October 3, 1994, the Board again revoked Guppy's parole status regarding his "A" sentences. It issued a parole violation warrant on the basis of his contempt conviction, his breaking and entering, drugs and weapons charges, as well as his relapse into heroin use. The Board lodged its parole violation warrant behind his 90 day contempt sentence mittimus.
The time between April 28, 1993 — when the Board voted to restore Guppy to parole status regarding his "A" sentences — and October 3, 1994, totals 523 days.
On October 31, 1994, Guppy was arraigned in Norfolk Superior Court on these charges. The court then set cash bail in the amount of $25,000. Guppy did not post bail.
Guppy completed service of his 90 day contempt sentence on December 16, 1994. He was then committed to the Norfolk County Jail given his outstanding Norfolk Superior Court bail mittimus.
Again, at this time, Guppy's parole violation warrant on his "A" sentences remained lodged behind the bail mittimus.
On December 20, 1994, Guppy was sentenced the Quincy District Court jury session to 2.5 years in the Norfolk County House of Correction for violation of the G.L.c. 209A restraining order.
On August 31, 1995, the Department of Correction applied a credit of 568 days to Guppy's sentence.
By this date, regarding his "A" sentences, Guppy had served a total of 968 credit days while on active parole. (See n. 6 and 7, supra). The DOC calculates that had Guppy served this 968 days in custody, rather than on active parole, he would have earned 400 days of statutory good time. The DOC gave Guppy the maximum amount of credit he would have earned had he been incarcerated. There is nothing to indicate that he is entitled to more credit simply because he was serving his sentence on active parole.
On March 22, 1996, the Board denied parole on his G.L.c. 209A sentence. The Board also affirmed the revocation of Guppy's parole regarding his "A" sentences.
On June 21, 1996, Guppy completed service of his G.L.c. 209A sentence. Also on that date, the Norfolk Superior Court reduced his $25,000 bail to personal recognizance.
Shortly thereafter, Guppy was transported to MCI Concord, into the custody of the DOC, where his parole violation warrant regarding his "A" sentences was served.
Guppy is today serving the remainder of his "A" sentences at MCI Concord. His current good conduct discharge date, subject to adjustment in the event of his future receipt or forfeiture of certain good conduct credits by the DOC, is set for September 18, 1999.
DISCUSSION
In Massachusetts, "[t]he privilege and benefit of the writ of habeas corpus shall be enjoyed . . . in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months." Mass. Const., Part II, c.l. § 6, art. 7. The purpose of the writ is to test the legality of the detention or imprisonment, not to determine the guilt or innocence of an individual. See Pasterczyk v. Fair, 819 F.2d 12 (1st Cir. 1987).
The Supreme Judicial Court has provided guidance for the appropriate use of the writ of habeas corpus. Averett, petitioner, 404 Mass. 28 (1989). In Averett, the Court explained that the issuance of a writ of habeas corpus is only appropriate where "the petition is based on grounds distinct from the issues at the indictment, trial, conviction, or sentencing stage." Averett, 404 Mass. at 30. Issues as to the forfeiture of good time credits (which lie at the core of the current dispute) are appropriately challenged in a petition of this type, so long as the prisoner would be entitled to immediate release if the court granted the good time credits. See Kenney v. Commissioner of Correction, 399 Mass. 137, 138 (1987); Hennessey v. Superintendent, Mass. Correctional Inst., Framingham, 386 Mass. 848, 849-852 (1982).
Habeas corpus has been properly sought under these circumstances. Guppy's petition is based on grounds distinct from the issues of his original indictment, trial, conviction, or sentencing stage, focusing rather on issues of good time parole credits. Should this court now rule in his favor, Guppy would be entitled to immediate release.
Defendants have moved for summary judgment. This court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Daws, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact, as well as demonstrating that the record entitles the moving party to summary judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Id., at 17. This court will not weigh evidence, assess credibility or find facts. Rather, this court may only consider undisputed material facts and apply them to the law. See Kelly v. Rossi, 395 Mass. 659, 663 (1985). The doctrine of res judicata may properly be asserted in a motion for summary judgment. Dowd v. Morin, 18 Mass. App. Ct. 786, 789 n. 9 (1984).
In support of his Petition for Writ of Habeas Corpus, Guppy raises several arguments regarding why he is entitled to over fifteen years of parole credit days based on the defendants' failure to give him proper credit for time served on the Florida sentences and on the defendants' misinterpretation of G.L.c. 127, § 149.
First, Guppy seeks: (a) thirty-three months and ten days of parole credit for time spent between June 20, 1979 to February 19, 1981 in Florida confinement (a total of 609 days); (b) 450 statutory days for the three 1-year Florida sentences; (c) 150 days "earned good-time" for 20 months confinement in Florida for work, educational improvement, and attending drug and alcohol treatment plans — a total of more than five years of parole credit days. Additionally, Guppy claims he is entitled to 203 days (from February 19, 1981 to September 10, 1981) after he was released from Florida prison but before was re-incarcerated in Massachusetts.
Defendants argue that these claims are barred by the principle of res judicata, given that Guppy litigated the same claims in a previous suit against the Commonwealth of Massachusetts beginning in 1982. See Commonwealth v. Guppy, 22 Mass. App. Ct. 1103 (1986).
Res judicata encompasses the doctrines of "claim preclusion" and "issue preclusion." This case deals only with claim preclusion. Claim preclusion prohibits the maintenance of an action based on the same claim that was the subject of a prior action. See generally Bagley v. Moxley, 407 Mass. 633, 636-37 (1990). "The purpose of the doctrine [of res judicata] is to conserve judicial resources, to prevent the unnecessary costs associated with multiple litigation, and to ensure finality of judgment." Martin v. Ring, 401 Mass. 59, 61 (1987).
Claim preclusion "makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the [prior] action." Heacock v. Heacock, 402 Mass. 21, 23 (1988) (emphasis added). The subsequent action is barred even if the plaintiff asserts a new theory of recovery or seeks a new remedy so long as the second action grows out of the same transaction, act, or agreement upon which the previous claim was based. Ratner v. Rockwood Sprinkler Co., 340 Mass. 773, 776 (1960).
When Guppy returned to Massachusetts prison in 1982, after having escaped from Massachusetts in 1978 and serving nearly three years in a Florida prison, he filed suit against the Commonwealth. Guppy sought parole credit days for the time spent in a Florida prison. See Guppy, 22 Mass. App. Ct. 1103 (1986). He did not raise, although he could have, the amount of credit time, if any, for the 203 days which transpired between his release from Florida prison and his re-incarceration in Massachusetts.
In that case, the Superior Court initially ruled in plaintiff's favor, issuing a preliminary injunction and ordering the DOC to credit Guppy with 609 days of time served on his Florida sentence after his escape from Lancaster, Massachusetts. The Appeals Court reversed, disagreeing with the lower court's interpretation of Chalifoux v. Commissioner of Correction, 375 Mass. 424 (1978).
In Chalifoux, a prisoner who escaped while serving a Massachusetts sentence was later convicted of another crime in California. The Supreme Judicial Court, in consideration of fairness, held that the prisoner be credited on his Massachusetts sentence with time served in California, because (a) the California sentence was imposed to be served concurrently with the Massachusetts sentence; (b) the Massachusetts prison authorities refused to receive the prisoner on transfer from California, based solely because of "overcrowded conditions in our system," id., 375 Mass. 424, 428 (1978); and (c) the Massachusetts authorities never advised Chalifoux of its decision not to credit him with time served in California. Had Chalifoux known that Massachusetts refused him credit for the time he served in California, he could have appealed his California sentence. The court reasoned that Chalifoux's right to parole credit should not turn on Massachusetts' refusal to accept him simply because of prison over-crowding.
Here, unlike Chalifoux, Guppy did not receive from the foreign state a sentence to run concurrently with his Massachusetts sentence. Florida merely informed Massachusetts on June 20, 1979 of Guppy's presence in their jail. Unlike Chalifoux, Guppy could not have argued on appeal that he was wrongfully being denied credit for time served in a foreign prison on a concurrent Massachusetts sentence. He was at that time only serving the Florida sentence. Therefore, Guppy lost no rights by the fact that Massachusetts did not tell him until his return that the period in Florida constituted parole "dead time."
Guppy now argues that he is entitled to parole credit days while escaped from Massachusetts between the years 1979 and 1981. While he concedes in his briefs that these issues were litigated once before in 1982 and that the gravamen of his claims in both actions is the same, Guppy argues that res judicata does not apply.
Guppy argues that he is entitled to the credit days while incarcerated in Florida because otherwise he is being forced to serve his sentence in installments, citing White V. Pearlman, 42 F.2d 788 (10th Cir. 1930) (habeas corpus issued where, as a result of an administrative error, a prisoner was released prior to the completion of his five year sentence, only to be re-incarcerated two years later for the balance of his term) and Shields v. Beto, 370 F.2d 1003 (5th Cir. 1967) (habeas corpus properly issued where the State of Texas, after releasing a prisoner to the Louisiana authorities in 1934, sentenced him in 1962 to the balance of his original 1933 convictions, in violation of the Fourteenth Amendment). Guppy was not released and then re-incarcerated as were the prisoners in both White and Shields; Guppy escaped. The only reason that Guppy's sentence is being served in what may appear to be "installments" is the fact that Guppy chose to escape from Massachusetts jail in 1978. Even if, therefore, the principles of res judicata do not apply, Guppy is not entitled to the time he spent in Florida jails based on his theory of "installments."
Guppy next claims that he is entitled to credit toward his original "A" sentence for the time from September 19, 1983 to October 3, 1994 (a period of eleven years). He reasons that by retroactively withdrawing his 1984 parole violation warrant in 1993 pursuant to an amended version of G.L.c. 127, § 149 (rather than the previous version) the Board has violated the ex post facto provision of the United States Constitution, Article I, § 9. This court disagrees.
This claim is not barred by res judicata since Guppy could not have litigated the impact of the 1986 amendment to G.L.c. 127, § 149 in his 1982 law suit.
G.L.c. 127, § 149 governs the issuance and service of parole violation warrants, and the interruption and resumption of the running of sentences. The Legislature rewrote G.L.c. 127, § 149 in 1986. St. 1986, c. 327. The revision placed statutory authority behind the Board's discretionary practice of withdrawing parole violation warrants, where appropriate, based on penological goals and public safety. The 1986 amendment provided more flexibility to the Board with respect to parole "dead time:"
In computing the period of the parolee's confinement, the time between the day after the issuance of the parole violation warrant until the withdrawal of said warrant shall not be considered as any part of the term of the parolee's original sentence. . . . The provisions of this section shall not be deemed to preclude the board from withdrawing a parole violation warrant at any time.
St. 1968, c. 327.
Thus, the Board could withdraw warrants in appropriate cases, removing an impediment to prisoners' rehabilitation without the appearance of unwarranted leniency. Prior to the amendment, however, any withdrawal of a parole violation warrant would restore all the "dead time" to the parolee.
A law violates the ex post facto clause if it retroactively increases the punishment for a crime. See Santiago v. Commonwealth, 428 Mass. 39 (1998). See also Miller v. Florida, 482 U.S. 423, 430 (1987); Stewart v. Chairman of the Mass. Parole Board, 35 Mass. App. Ct. 843, 846 (1994) ("A law affects substantive rights and is ex post facto, . . ., if it makes criminal an action innocent when done; makes a crime more aggravated than when committed; increases the punishment for the crime, . . . .")
In Santiago, the plaintiff (then nineteen) challenged as ex post facto St. 1998 c. 98, §§ 3 and 5 which extended the jurisdictional age limit of the Juvenile Court. The Supreme Judicial Court dismissed the challenge, opining that the law did not run afoul of the Art. 1, § 9 of the United States Constitution or the Massachusetts Declaration of Rights. Id, 428 Mass. 39 (1998). The SJC cited Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), in which the United States Supreme Court identified four kinds of criminal laws as ex post facto:
"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." Id., 3 U.S. (3 Dall.) at 390.
Santiago, 428 Mass. at 40-41.
Here, the Board's application of the 1986 amended version of G.L.c. 127, § 149 to withdraw Guppy's 1984 parole violation does not fall into any of the Calder categories. Following the SJC's reasoning in Santiago, defendants' use of G.L.c. 127, § 149 law to calculate the length of Guppy's sentence did not retroactively increase the penalty for his crimes. Id. The Board's action did not extend the period of Guppy's confinement beyond that previously authorized by law, nor did it retroactively set back or revoke his eligibility for parole. The Board was not ever required, prior to 1986 or in 1993, to withdraw the parole violation warrant. The effect of their action was not a detriment to Guppy. It was, in fact, a benefit. The Board's action eliminated a parole violation from his criminal record and effectively returned him to parole status for those years, giving Guppy the opportunity to shorten his prison sentence.
Guppy also claims he is entitled to immediate release because, with respect to both the parole violation warrants issued in 1984 and 1994, the Board did not serve his parole violations warrants at the appropriate times in accordance with G.L.c. 127, § 149.
Guppy reasons that the 1984 warrant should have been served upon the expiration of the first part of his "B" sentences — his 1984 9.5 to 10 year Norfolk sentence — rather than upon the expiration of both parts — his 1984 Norfolk sentence plus his 1985 Norfolk 7 to 10 year "from and after" sentence. Regarding his 1994 parole violation warrant, Guppy contends that this should have been served on December 16, 1994, upon the expiration of his intervening 90 day contempt sentence, rather than on June 21, 1996.
Again, G.L.c. 127, § 149 governs the issuance and service of parole violation warrants and the interruption and resumption of the running of sentences. As interpreted by this court,
A parole violation warrant is a mechanism for returning an alleged parole violator to prison. It issues only upon a finding that the parolee constitutes a risk to the community or to himself. [G.L.c. 127, § 149]. When the parole violation warrant issues, the parolee ceases to serve the pre-parole sentence; when the warrant is served, the sentence commences again. [emphasis added] When, however, the parolee is sentenced for a new criminal offense, the Board is precluded from serving its warrant until the expiration of the intervening sentence. [emphasis added]. . . . [T]he time of the issuance of the amended warrant until the time the warrant is served or withdrawn [amounts to] dead time and the sentence stops running.
Guppy v. Ponte, Civil No. 89-0163B (Plymouth Super. Ct.).
The Board was precluded from serving Guppy's 1984 parole violation warrant until the expiration of all of Guppy's intervening sentences. The Board could not have served Guppy's 1984 parole violation warrant until the expiration of both parts of his aggregate "B" sentences. When these sentences expired on May 16, 1994, the warrant was properly served pursuant to G.L.c. 127, § 149.
For similar reasons, Guppy's 1994 parole violation was properly served. After the completion of Guppy's 90 day contempt sentence on December 16, 1994, the $25,000.00 bail mittimus stood as an impediment to the service of his parole violation warrant. Where a parole violator is held in lieu of bail on new charges, the parole violation warrant is lodged as a detainer behind bail and may not be served until and unless the court lifts bail or the parole violator posts bail. See Kleczka v. Commonwealth, 350 Mass. 74, 76 (1966) (writ of habeas corpus denied to parolee, where, upon his arrest in 1966, he was served only with a 1963 parole violation warrant and not both the 1960 and 1963 parole violation warrants).
Guppy's additional 2.5 year sentence for violation of a G.L. c. 209A restraining order set by the Quincy District Court on December 20, 1994 became a further impediment to the service of the 1994 warrant. Therefore, the Board properly served Guppy's 1994 parole violation warrant on June 21, 1996, when Guppy's G.L. c. 209A sentence expired and his bail was lifted.
Lastly, Guppy claims that he is entitled to the benefits of the recent Crooker v. Chairman, Mass. Parole Board, 38 Mass. App. Ct. 915 (1995) in order to shorten his current prison term. In Crooker, a prisoner sought to require the Massachusetts Parole Board to credit him with the time he served on parole, as well as his good conduct deductions, against the aggregate of both of his consecutive sentences. In affirming the lower court's granting of summary judgment to the plaintiff, the Appeals court opined that consecutive sentences are served concurrently while on parole. Crooker, 38 Mass. App. Ct. 915, 916. Thus, the prisoner was entitled to day by day credit against both of his sentences while on parole. Id.
Guppy claims that the benefits of Crooker have not been applied to him. In consideration of the affidavits presented to this court, the double parole benefits of Crooker have already been applied to this plaintiff. Guppy's most recent good conduct discharge date computation includes a day-for-day credit against his "A" sentences for both of Guppy's parole periods ranging from September 19, 1983 to June 11, 1984 as well as from April 28, 1993 to October 3, 1994. Guppy is not entitled to more.
ORDER
For the foregoing reasons, it is hereby ORDERED that defendants' motion for summary judgment be ALLOWED, and that plaintiff's cross-motion for summary be DENIED. Judgment shall enter for the defendants.
______________________________ Nonnie S. Burnes Justice of the Superior Court
DATED: September 4, 1998