By the Court (Agnes, Blake & Desmond, JJ.), Clerk
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On May 25, 2011, the defendant pleaded guilty to possession of a class B substance with intent to distribute, a related school zone violation, and several other nondrug-related crimes (2011 case). He was sentenced to two years in the house of correction, received 260 days of jail credit for time already served, and was released from custody on February 2, 2012.
The defendant also pleaded guilty to assault and battery by means of a dangerous weapon, receiving a stolen motor vehicle, negligent operation of a motor vehicle, failure to stop for a police officer, unlicensed operation of a motor vehicle, and three civil motor vehicle infractions.
The release date is taken from the Commonwealth's opposition to the defendant's motion for sentencing credit, which provides: "Undersigned counsel for the Commonwealth contacted the records department of the Plymouth County House of Corrections and learned that the defendant was released from custody . . . on February 2, 2012."
One year later, on February 1, 2013, the defendant was indicted on charges of possession of heroin with intent to distribute, subsequent offense, and resisting arrest. Nearly three months later, on April 26, 2013, he was indicted on nine additional charges, which included drug-related offenses as a subsequent offender, and other offenses. In the interim between those indictments, on March 22, 2013, the defendant filed a motion for a new trial in connection with the 2011 case, which was allowed based on the role that then-chemist, Annie Dookhan, had played in his case. In response, the Commonwealth entered a nolle prosequi on each of the two drug-related charges in the 2011 case.
In 2012, Dookhan admitted to tampering with evidence at the William A. Hinton State Laboratory Institute, failing to comply with quality control measures, forging the initials of an evidence officer, and "dry labbing." Commonwealth v. Scott, 467 Mass. 336, 339-341 (2014).
On May 6, 2014, the defendant pleaded guilty to the pending indictments, with the exception of the subsequent offender portion of the drug charges, which were dismissed based on the prior nolle prosequis of the 2011 drug charges. On the drug charges, the defendant was sentenced to three to four years in State prison, with credit for time served on these charges. On the nondrug charges, the defendant was sentenced to two years in the house of correction to be served concurrently with each other and with his State prison time.
A resisting arrest charge also was dismissed.
On June 24, 2015, the defendant filed a motion for sentencing credit for the time he had served on the 2011 case, which the Commonwealth opposed. The motion judge, who was also the plea judge on the 2013 charges, denied the motion. This appeal followed.
The judge found that "[c]onsiderations of fairness do not weigh in the defendant's favor in light of his attempt to bank time from the 2011 Brockton District Court conviction toward the subsequent 2012 and 2013 drug cases, and the fact that the convictions are not related. Moreover, the defendant's nol pros due to [the] Dookhan lab malfeasance does not constitute an actual innocence claim. See Commonwealth v. Holmes, 469 Mass. 1010 (2014)."
Discussion. This case is controlled in all material respects by Commonwealth v. Holmes, 469 Mass. 1010, 1012 (2014), in which the court flatly rejected the ability of a defendant to be granted jail credit on a new offense for time served on a prior offense. Specifically, the court "clarified that the reversal of a conviction does not entitle a defendant to credit for jail time served on that conviction against a sentence for a subsequent unrelated offense, even where the second offense was committed before the first conviction was reversed." Commonwealth v. Bond, 88 Mass. App. Ct. 901, 901-902 (2015), citing Holmes, supra at 1012-1013.
The defendant attempts to overcome Holmes by claiming that his cases are related by the subsequent offender charges imposed and the relative closeness in time between the dismissals and the new charges. The subsequent offender charges were dismissed, however, and the fact remains that there is no meaningful substantive or temporal connection between the earlier sentence and the new sentence. See Holmes, supra at 1012.
The defendant provides no support for his assertion that the cases are connected because the 2013 charges remained in the Superior Court, even after the subsequent offender portions of the indictments were dismissed.
We also note that the defendant has failed to provide support for both his claim in the trial court that he served 730 days in connection with the 2011 case, as well as his claim on appeal that he is entitled to 513 days of credit. Other than the record documents indicating his plea date and the 260-day jail credit, there is no record support for the total number of days served. While not cited by the judge, on this basis alone, the record supports denial of the motion for sentencing credit. See Commonwealth v. Cruz, 430 Mass. 838, 844 (2000).
Relying on Dookhan's malfeasance, the defendant also claims that he is entitled to sentencing credit based on a finding of actual innocence as envisioned by Holmes. See Holmes, supra at 1012 n.3. Dookhan's misconduct alone does not constitute an equitable consideration that would trigger an exception to the general prohibition against banking time. See Bond, supra at 902. The defendant received exactly what he was entitled to under Commonwealth v. Scott, 467 Mass. 336 (2014). He has failed to show an abuse of discretion or other error of law.
Order denying motion for sentencing credit affirmed.
By the Court (Agnes, Blake & Desmond, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 12, 2016.