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06/24/77 HENRY KINNEY PETITIONER

June 24, 1977

HENRY KINNEY, PETITIONER


Hampshire. Petition for a writ of filed in the Superior Court on February 17, 1976. The case was heard by Greaney, J.

Hale, C.j., Grant, & Brown, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Sentence. Imprisonment.

The opinion of the court was delivered by: Brown

A prisoner who was sentenced to a house of correction for several offenses while an escapee from the State prison was not entitled to have the house of correction sentences run concurrently with the State prison sentence by the fact that the sentencing Judge did not specify whether the new sentences were to run concurrently or consecutively with the original sentence, since his escape had suspended the running of the original sentence. [459-461]

A prisoner who was confined in a house of correction while awaiting trial for offenses committed while he was an escapee from the State prison was not denied equal protection of the laws by the fact that if he had been able to raise bail he would have been remanded to the custody of State prison officials, where the Judge had the discretion in either case to impose sentences either concurrent with or consecutive to the State prison sentence. [461-462]

A prisoner who was confined in a house of correction while awaiting trial for offenses committed while he was an escapee from the State prison was not deprived of any liberty interest under the Fourteenth Amendment to the United States Constitution by the refusal of a State prison administrator to transfer him to the State prison to resume serving his original sentence. [462-463]

The petitioner appeals from the denial of his petition for a writ of , filed in the Superior Court.

In March, 1974, the petitioner was sentenced to a two and one-half to three year term at the Massachusetts Correctional Institution at Walpole. In September, 1974, following his transfer to the Plymouth Forestry Camp, he escaped. He was arrested on January 3, 1975, in Amherst and charged with several offenses. At his arraignment later that day in the District Court of Hampshire on the local offenses, he revealed that he had escaped, and asked to be returned to Walpole. The request was denied, and bail was set at $5,000. He was unable to post bail. There were other hearings on his cases in the District Court of Hampshire during January, 1975, and at each hearing he continued to request transfer to Walpole.

On February 1, 1975, he was found guilty in the District Court of Hampshire of several local offenses and was sentenced to eleven months in the Hampshire County house of correction. Thereafter, he was found guilty in the Superior Court of several other offenses and was sentenced to fifteen months in the house of correction, to be served concurrently with the sentence imposed by the District Court. *fn1 The petitioner continued to seek a transfer to Walpole, but all his requests were denied.

On February 17, 1976, the petitioner filed a petition for a writ of . He requested release at the expiration of his Superior Court sentence. The Judge denied the petition. Following the completion of his Superior Court sentence on May 15, 1976, the petitioner was transferred to Walpole to begin serving the remainder of his Walpole sentence. *fn2

1. There is no merit to the petitioner's contention that the District Court Judge, acting pursuant to G. L. c. 279, § 8, intended that the sentence to the Hampshire County house of correction should run concurrently with the Walpole sentence. General Laws (Ter. Ed.) c. 279, § 8, provides as follows: "A convict upon whom two or more sentences . . . are imposed may be fully committed upon all such sentences at the same time, and shall serve them in the order named in the mittimuses upon which he is committed . . . ." The sentences involved herein were not imposed at the same time, and neither of the Judges imposing the later sentences made any mention of the earlier sentence.

The petitioner's argument is premised on the notion that if a prisoner is serving one sentence and is then given another sentence and there is no indication of whether the sentences are to run concurrently or consecutively, they are deemed to run concurrently. See Henschel v. Commissioner of Correction, 368 Mass. 130, 133 (1975); Baranow v. Commissioner of Correction, 1 Mass. App. Ct. 831, 832 (1973). See also ABA Standards, Sentencing Alternatives and Procedures § 3.4 (1968). However, in the instant case the prisoner was not "serving" one sentence at the time he was sentenced for other crimes. Rather, his escape had suspended the running of the original sentence until such time as he should be returned to Walpole. See Harding v. State Bd. of Parole, 307 Mass. 217, 220 (1940); Zerbst v. Kidwell, 304 U.S. 359, 361 (1938). No portion of the time served in the Hampshire County house of correction could be used to reduce the time the petitioner was required to serve at Walpole because during the time he was in the house of correction he was not in actual or constructive custody under the first sentence. Id.

The petitioner argues that Commonwealth v. Grant, 366 Mass. 272 (1974), expanded the definition of "constructive custody" beyond the meaning given to it in Harding. The Supreme Judicial Court in Grant interpreted G. L. c. 279, ยง 33A, as appearing in St. 1961, c. 75, as allowing a defendant to receive credit for time spent in Federal custody while awaiting trial on both State and Federal charges when the charges arose out of the same incident. The court added that in the circumstances of ...


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