Commonwealth v. Holmes (Lawyers Weekly No. 11-075-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 12‑P‑59 Appeals Court COMMONWEALTH vs. MARLON HOLMES. No. 12‑P‑59. Hampden. January 30, 2013. ‑ June 14, 2013. Present: Rapoza, C.J., Cypher, Kantrowitz, Berry, & Grainger, JJ.[1] Imprisonment, Credit for time served. Practice, Criminal, Sentence. Indictments found and returned in the Superior Court Department on January 16, 2003. Motions to receive credit for time served, filed on November 29 and December 16, 2011, were considered by Mary‑Lou Rup, J., and a motion for reconsideration was considered by her. Marlon Holmes, pro se. Jane Davidson Montori, Assistant District Attorney, for the Commonwealth. GRAINGER, J. The defendant appeals from the denial of his motion for credit for two years he spent incarcerated on a prior sentence that was subsequently reversed. We reverse the denial of his motion. Background. As with most sentencing disputes, a specific chronology is useful to clarify the issues. On November 15, 1997, the defendant was charged with possession with intent to distribute a class B substance, in violation of G. L. c. 94C, § 32A. On December 5, 1997, he pleaded guilty and was sentenced to serve two years in the Hampden County house of correction (the 1997 conviction). The defendant completed this sentence and was released in late 1999. Three years later, on October 30, 2002, the defendant was arrested; he was subsequently charged with two counts of unlawful possession of a firearm and two subsequent offender counts. He pleaded guilty on July 15, 2003, and was sentenced to a term of twelve years to twelve years and one day to be served at the Massachusetts Correctional Institution at Cedar Junction (the 2003 convictions). On October 17, 2005, while still incarcerated for the 2003 convictions, the defendant moved to withdraw his 1997 guilty plea on the basis of ineffective assistance of counsel.[2] On May 17, 2006, a District Court judge allowed the motion. The defendant’s motion to dismiss the 1997 complaint with prejudice was later allowed. The defendant then filed a motion seeking credit for the time he served on his sentence for the 1997 conviction. His motion was denied on December 2, 2011. Discussion. Our law recognizes that time served under a vacated sentence should be credited against a valid one, “for only in this way can a prisoner receive credit, not as matter of grace, but as of […]