Credit for time served. Practice, Criminal, Sentence,
Jeffrey A. Garland, Committee for Public Counsel Services,
for the defendant.
Sachse, Assistant District Attorney, for the Commonwealth.
defendant, David Lydon, appeals from an order denying his
motion for credit for time being served in a house of
correction for one set of offenses, while he was awaiting
trial and sentencing in the Superior Court on a second,
unrelated set of offenses. The Appeals Court affirmed the
denial of the motion in a unpublished memorandum and order
issued pursuant to its rule 1:28, see Commonwealth
v. Lydon, 90 Mass.App.Ct. 1118 (2017), and
this court granted further appellate review. Although the
defendant is not entitled as of right to the credit he seeks,
we recognize that in appropriate circumstances a judge has
discretion to impose a concurrent State prison sentence nunc
pro tunc to the commencement of a house of correction
sentence then being served. Because the judge did not
consider whether to exercise his discretion in that regard,
we vacate the order, and remand for further consideration.
the defendant was on probation for various drug offenses
(Roxbury charges), he was arrested and arraigned in the
District Court for three new robbery offenses, for which he
later was indicted and arraigned in the Superior Court
(Dorchester charges). About five weeks after his arrest on
the Dorchester charges, the defendant stipulated to violation
of the conditions of his probation, was sentenced on the
Roxbury charges, and began serving a six-month committed
sentence in the house of correction. One hundred and
thirty-two days later (while he was serving the Roxbury
sentence), he pleaded guilty to the Dorchester charges, and
was given a committed sentence to State prison
"forthwith and notwithstanding" the Roxbury
sentence. The sentencing judge credited against the
Dorchester sentence the thirty-six days the defendant had
been held before sentencing on the Roxbury charges, but
denied the defendant's motion for additional credit for
the 132 days he already had served on the existing Roxbury
defendant does not argue that he was entitled as of right to
a 132-day jail credit on the Dorchester sentence. Instead,
his claim is that a judge has discretion to authorize such
credit in these circumstances for two reasons: first, under
Commonwealth v. Ridge, 470 Mass.
1024, 1025 (2015), a judge has discretion to award jail
credit directly; and, second, a judge has discretion to
effectively authorize a credit by imposing a concurrent
sentence in a separate case nunc pro tunc to the commencement
of the prior sentence. See Commonwealth v.
Barton, 74 Mass.App.Ct. 912, 914 (2009). We reject
the first contention, but agree with the second point.
Direct jail credit.
supra, does not support the defendant's claim
that a direct award of jail credit is discretionary in these
circumstances. In Ridge, the defendant was held in
lieu of bail on two sets of unrelated charges: one set in
Plymouth County, and the other set in Norfolk County. He was
sentenced first in Norfolk County, and was given credit on
that sentence for the period of pretrial detainment. When he
was sentenced a year later in Plymouth County to time
concurrent with the Norfolk sentence, he failed to seek jail
credit for the same period of pretrial detention. In that
circumstance, the court held that "had the defendant
requested credit for his pretrial detention at the time of
the Plymouth County sentencing, the sentencing judge plainly
would have had the power to accede to or to deny the
request." Ridge, 470 Mass. at 1025.
Ridge did not involve credit "against [one
sentence] for the time [a defendant] was incarcerated on an
unrelated . . . sentence, " Ledbetter
v. Commonwealth, 456 Mass. 1007, 1009
(2010), and the motion judge properly ruled that the
defendant was not entitled to jail credit on that basis.
judge ordered the defendant's State prison sentence on
the Dorchester charges to take effect "forthwith and
notwithstanding" the house of correction sentence then
being served on the Roxbury charges. See Dale
v. Commissioner of Correction, 17
Mass.App.Ct. 247, 249 (1983). Pursuant to G. L. c. 279,
§ 27, the effect of such a sentence is that "the
sentence then being served in the jail or house of correction
is terminated and the prisoner is 'discharged at the
expiration of his [State prison] sentence.'"
Dale, supra, quoting Kinney,
petitioner, 5 Mass.App.Ct. 457, 461 n.3 (1977). We agree
with the defendant that the judge also had discretion to
consider whether the circumstances warranted imposition of
the concurrent State prison sentence nunc pro tunc to the
commencement of the house of correction sentence. See
Barton, 74 Mass.App.Ct. at 914 (considering
possibility of "multiple concurrent sentences for
several different offenses that arise from several different
criminal episodes, perhaps in different counties, but with
circumstances being viewed by the later sentencing judge as
warranting an order for the later-imposed sentences to begin
on the same date as the first, nunc pro tunc"). There is
a difference between "whether the judge knew he had
discretion and exercised it, or believed that his decision
was compelled." See Commonwealth v.
Ruiz, 400 Mass. 214, 215-216 (1987). In this case,
the judge did not recognize his discretionary authority.
Superior Court judge has not considered whether, in the
exercise of his discretion, the circumstances warrant
ordering the defendant's concurrent State prison sentence
to commence nunc pro tunc to commencement of the house of
correction sentence. Accordingly, we vacate the judge's
order denying the ...