Commonwealth v. Holmes (Lawyers Weekly No. 10-161-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11557 COMMONWEALTH vs. MARLON HOLMES. September 12, 2014 Imprisonment, Credit for time served. Practice, Criminal, Sentence. This case is before the court for further appellate review. The Appeals Court, in a divided opinion, held that the defendant must be credited for time served on a sentence for a vacated conviction against sentences that he was serving on later convictions. Commonwealth v. Holmes, 83 Mass. App. Ct. 737 (2013). The Commonwealth argues that the defendant is not entitled to credit for time served on an earlier conviction that was unrelated to the later convictions, where he had completed serving the sentence before committing the new crimes. It argues further that allowing credit in such circumstances implicates the prohibition against banking time. We agree with the Commonwealth, and affirm the Superior Court’s order denying the defendant’s motion for credit. Background. The facts are fully set forth in the Appeals Court’s opinion. Commonwealth v. Holmes, supra at 737-738. In short, in 1997, the defendant pleaded guilty to unlawful possession of a controlled substance (class B) with intent to distribute. After he completed serving his sentence on that conviction in 1999, he was released. In 2003, the defendant pleaded guilty to two counts of unlawful possession of a firearm, both committed in 2002, and two subsequent offender counts in violation of G. L. c. 269, § 10G (b). He was sentenced to serve two concurrent terms of from twelve years to twelve years and one day and credited for his pretrial confinement. In 2005, while he was incarcerated for the 2003 convictions, the defendant moved to withdraw his guilty plea for the unrelated 1997 offense on the ground of ineffective assistance of counsel. That motion was allowed in 2006, and the underlying complaint for the 1997 offense was eventually dismissed.[1] In 2011, while still incarcerated, he filed a motion “for time served on reversed or revised prior sentences under [G. L. c. 279, § 33A(6)],” seeking credit for the earlier sentence that he had completed serving on the vacated 1997 conviction. A Superior Court judge denied his motion for credit. The defendant appealed. The Appeals Court reversed the denial of the defendant’s motion and credited him for the time that he had served on the vacated 1997 conviction against the sentences that he was serving on the 2003 convictions. Commonwealth v. Holmes, supra at […]