Opinion
No. 15–P–765.
12-02-2016
COMMONWEALTH v. David LYDON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, David Lydon, appeals from an order denying his motion for jail credit. The defendant argues that the judge erred in failing to exercise discretion to credit the defendant for the time he served on an unrelated sentence while he was awaiting his sentencing on charges in Suffolk Superior Court (Suffolk). We affirm.
On August 28, 2014, the defendant was arrested for two unarmed robberies, in violation of G.L. c. 265, § 19(b ). At the time of his arrest, the defendant was on probation for prior convictions involving drug charges in the Roxbury Division of the Boston Municipal Court (Roxbury). On August 29, 2014, the defendant was arraigned for the charges relating to the robberies in the Dorchester Division of the Boston Municipal Court (Dorchester). On October 3, 2014, the defendant stipulated to a violation of probation in Roxbury and was sentenced to six months in a house of correction. He was moved from the Suffolk County jail to the Suffolk County house of correction.
The defendant was also charged with assault and battery on a person sixty years or older or assault and battery on a person with a disability, in violation of G.L. c. 265, § 13K (a1/2 ), that allegedly resulted from the commission of one of the robberies.
Because the defendant could not post bail, he was held in custody and remained in custody until his sentencing in Roxbury for violating probation.
On October 30, 2014, the defendant was arraigned in the Suffolk case, where bail was set. The defendant was held in lieu of bail, and on February 12, 2015, the defendant pleaded guilty to all three charges in the Suffolk case. He was sentenced to two and one-half to three and one-half years of incarceration in State prison on the two unarmed robbery indictments, concurrent with each other and imposed forthwith. The Suffolk County house of correction sentence, imposed at Roxbury, was effectively terminated as of that date.
For the assault and battery charge on a person sixty years or older, the defendant received a sentence of three years of probation, with several conditions, from and after the State prison sentence.
At sentencing, the defendant requested that the judge credit the time that he had spent in custody, beginning from his arrest in Dorchester. The sentencing judge credited the defendant with thirty-six days, the time between his arrest on August 28, and the Roxbury sentencing, on October 3. The judge stated that he could not "give him credit" for the time (approximately 132 days) between the Roxbury sentencing and the sentencing in the Suffolk case.
The defendant filed a motion for jail credit claiming that he was entitled to additional credit (the time that he spent serving his sentence pursuant to the violation of probation until the time of the Suffolk sentencing) as a matter of judicial discretion pursuant to Commonwealth v. Ridge, 470 Mass. 1024, 1025 (2015). The judge denied the motion on the basis that Ridge did not apply to the circumstances of the defendant's case.
Discussion. The defendant argues that the sentencing judge erroneously believed that he lacked authority to grant the defendant credit for the time that the defendant was held in lieu of bail, while also serving a sentence on another case. The defendant's reliance on Ridge, however, is misguided.
In Ridge, the defendant was sentenced in Norfolk County to approximately four years in State prison. Ibid. At the time of this sentencing, he received credit for the time that he was held on bail and awaiting trial on both the Norfolk charges and other charges pending against him in Plymouth County. Ibid. One year later, the defendant was sentenced on charges in Plymouth County, where the sentencing judge ordered him to serve a term of fourteen to fifteen years in the State prison. Ibid. The defendant argued on appeal that he should receive credit on his Plymouth County sentencing for the time that he was detained awaiting trial. Ibid. The Supreme Judicial Court held that the motion judge was not obligated to grant the defendant's request because the defendant did not seek credit at the time of the Plymouth County sentencing. Id. at 1024–1025. However, the court stated 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." Id. at 1025.
The defendant contends that this statement made in Ridge, stands for the proposition that it is within the sentencing judge's discretion to credit the time that a defendant spends in custody while serving a sentence for an unrelated offense. To the contrary, the court in Ridge used the term "pretrial detention" in reference to the defendant's specific request before the court: to receive credit for the time that the defendant spent in pretrial custody before both the Norfolk County sentence and the Plymouth County sentence. See id. at 1024 (time spent in pretrial custody was "credited to his Norfolk County sentence"). Moreover, here, the defendant received the credit that the defendant in Ridge had requested on appeal, the full thirty-six days that he was held on bail and awaiting sentencing in both Roxbury and Suffolk.
In fact, the defendant in Ridge specifically stated in his appellate brief that he "is not requesting [on appeal] double credit or credit for the time between when he was sentenced in Norfolk to the time he was sentenced in Plymouth."
There is no question that a defendant "is entitled to credit for time spent confined to jail before sentencing so long as that confinement is related to the criminal episode for which the prisoner is then sentenced" (emphasis supplied). Commonwealth v. Barton, 74 Mass.App.Ct. 912, 913 (2009). Here, however, it was proper for the sentencing judge to find that it was not within his discretion to credit the defendant's Superior Court sentence for the time that he was incarcerated and serving an unrelated sentence. See Ledbetter v. Commonwealth, 456 Mass. 1007, 1009 (2010) ("[The defendant] is not, as he claims, entitled to credit against his Superior Court drug sentences for the time he was incarcerated on an unrelated ... sentence"); Barton, 74 Mass.App.Ct. at 913 ("The statutory purpose [of the jail credit statutes] was not to allow deductions for time served under sentence for another crime, but was to afford relief to those not convicted and not serving any sentence but who because of inability to obtain bail, for example, were held in custody awaiting trial" [quoting from Needel, petitioner, 344 Mass. 262, 262 (1962) ] ). While "[i]n some circumstances, a defendant may be allowed to credit time in an unrelated case if necessary to prevent a defendant from serving ‘dead time,’ " such circumstances are not present here. Williams v. Superintendent, Mass. Treatment Ctr., 463 Mass. 627, 632 (2012), quoting from Commonwealth v. Milton, 427 Mass. 18, 24 (1998). See Commonwealth v. Blaikie, 21 Mass.App.Ct. 956, 957 (1986) ("We perceive no special consideration of fairness which requires crediting the Suffolk sentences with time spent in confinement awaiting sentence on the unrelated Middlesex offenses"). We therefore find no error.
Order denying motion for jail credit affirmed.