By the Court (BERRY, SIKORA & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal, the defendant claims that his motion for jail credit was improperly denied where he sought credit for 642 days that he purportedly spent in pretrial detention. Specifically, the defendant sought to apply this claimed jail credit to an Essex County sentence, notwithstanding the fact that whatever jail credit was due had already been applied to the defendant's longer, concurrent Middlesex County sentence which was already being served. We affirm.
1. Background. On September 23, 2009, the defendant pleaded guilty in Superior Court in Middlesex County to trafficking heroin in violation of G.L. c. 94C, § 32E( c ), and was sentenced to serve five years to five years and one day (the Middlesex sentence). The defendant also received 444 days of jail credit pursuant to G.L. c. 279, § 33A, for time spent in pretrial detention prior to the guilty plea and sentencing. Exactly one month later, on October 23, 2009, the defendant pleaded guilty in Superior Court in Essex County to new and unrelated charges for distribution of a class B substance in violation of G.L. c. 94C, § 32A( a ), and was sentenced to a term of three years and six months to four years (the Essex sentence). The Essex sentence was to be served concurrently with the Middlesex sentence, which had already commenced.
In June, 2011, the defendant filed a motion in the Middlesex Superior Court for additional jail credit and to correct the mittimus. On August 23, 2011, a Superior Court judge allowed the defendant's motion, and his jail credit was recalculated to 552 days, and shortly thereafter amended to 522 days. , In December, 2011, the defendant filed a motion in the Essex Superior Court requesting 642 days of jail credit towards the Essex sentence. The sentencing judge denied the defendant's motion, and this appeal resulted.
This 552 days represents the time between March 21, 2008, when the defendant was ordered held without bail in Boston Municipal Court on defaulted Malden and Lawrence cases, to September 25, 2009, when the Middlesex sentence was imposed.
The amendment was based on the fact that, for thirty of the 552 days (the time period between March 21, 2008, and September 25, 2009, see note 2, supra ) the defendant was serving time on a prior, unrelated sentence that originated in Boston Municipal Court.
2. Discussion. We first note that the defendant's motion for jail time credit was unsupported by an affidavit, a memorandum, a police report, an inmate sentence listing from the Department of Correction, or any other document that could verify the defendant's contention that he was entitled to 642 days of credit. Neither the motion judge, nor this court, is required to rely on the defendant's bare assertions, which are not substantiated by a single court record. “The burden is on the appellant to ensure that an adequate record exists for an appellate court to evaluate.” Commonwealth v.. Woods, 419 Mass. 366, 371 (1995). See also, e.g., Commonwealth v. Lucien, 440 Mass. 658, 672 (2004) (“The judge [is] entitled to reject summarily any claim supported only by the defendant's self-serving affidavits ...”). Consequently, based on the state of the record as it was presented to the motion judge, we can say that there was no error in the denial of the defendant's motion for jail credit.
On appeal, the defendant expanded the record without motion to this court. The record on appeal includes the Middlesex docket sheet and a Department of Correction inmate sentencing listing, which were not a part of his motion for jail credit. However, these documents fail to verify the defendant's contention that he was in pretrial detention from January 28, 2008, until October 23, 2009.
Nevertheless, even if we were to reach the defendant's contention that he is entitled to 642 days credit towards the Essex sentence, his claim is without merit. The crux of the defendant's argument is that, because the Essex sentence was imposed concurrently with the Middlesex sentence, fairness dictates that he be granted jail time credit to “equalize both sentences.” This is not so.
What the defendant seeks, in essence, is double credit for time spent in pretrial detention for a prior, unrelated crime. “When faced with a request for jail time credit regarding unrelated offenses, ... care should be taken to ensure that a prisoner is not ... getting double credit for time.” Williams v. Superintendent, Mass. Treatment Center, 463 Mass. 627, 632 (2012). Though we noted in Commonwealth v. Carter, 10 Mass.App.Ct. 618, 621 (1980), that “[a]ny sentence being served concurrently with a sentence to which a jail credit is applied should receive the benefit of the same credit so that the sentence in fact retains a concurrent status,” we subsequently explained that this requirement does not apply to a concurrent sentence on an unrelated offense, arising from a different criminal episode. See Commonwealth v. Blaikie, 21 Mass.App.Ct. 956, 957 (1986); Commonwealth v. Barton, 74 Mass.App.Ct. 912, 914 (2009) (“The language from Carter ... does not govern cases” where “multiple concurrent sentences are ordered on different dates, on account of different criminal episodes, ... although the later imposed sentences are ordered to be served concurrently with the first sentence imposed,” except when there is unexhausted jail time credit remaining when the first sentence expires, which then must be applied to the remaining sentence).
Furthermore, fairness does not dictate that the defendant receive more jail credit than time actually served in pretrial detention. The defendant received credit for 522 days, representing each day he served in pretrial detention, which was properly applied to the longer Middlesex sentence. “[A] defendant is generally entitled to [credit for] all of the time he spent in custody awaiting trial, but not more than that.” Commonwealth v. Murphy, 63 Mass.App.Ct. 753, 757 (2005).
Order denying motion for jail credit affirmed.
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