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NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]
Holmes v. Holmes (Lawyers Weekly No. 10-061-14)
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‑11538 ELAINE M. HOLMES vs. KENNETH E. HOLMES. Essex. December 3, 2013. ‑ April 2, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Divorce and Separation, Alimony, Modification of judgment. Statute, Amendment. Words, “General term alimony”. Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on May 31, 2006. The case was heard by Amy L. Blake, J., and a complaint for modification, filed on July 20, 2011, was heard by her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William Sanford Durland, III for the defendant. James M. Walsh for the plaintiff. GANTS, J. Under the Alimony Reform Act of 2011, St. 2011, c. 124 (reform act), “[i]f the length of the marriage is [twenty] years or less, but more than [fifteen] years, general term alimony shall continue for not more than [eighty] per cent of the number of months of the marriage” unless the judge makes a written finding that deviation beyond this time limit is required in the interest of justice. G. L. c. 208, § 49 (b) (4). The issue presented in this case is whether alimony paid under a temporary support order during the pendency of a divorce proceeding, pursuant to G. L. c. 208, § 17 (temporary alimony), must be included in calculating the maximum presumptive duration of general term alimony under § 49 (b). We conclude that temporary alimony is separate and distinct from general term alimony, and that the duration of temporary alimony is not included in calculating the maximum presumptive duration of general term alimony. We also conclude that, where temporary alimony is unusually long in duration or where the party receiving temporary alimony has caused unfair delay in the issuance of a final judgment in order to prolong the length of time in which alimony may be paid, a judge in her discretion may consider the duration of temporary alimony in determining the duration of general term alimony. Background. Kenneth Holmes (husband) and Elaine Holmes (wife) were married on May 25, 1991, and have three children. The wife filed a complaint for divorce on May 31, 2006. On June 12, 2006, and again on November 3, 2006, in accordance with the parties’ written agreement, the judge […]
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 […]