FOX v. FRANKLIN COUNTY HOUSE OF CORRECTION (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff sought declaratory relief based on his claim that defendant had miscalculated his parole eligibility date. The defendant moved to dismiss the complaint. A Superior Court judge allowed the motion to dismiss and the plaintiff appeals. We affirm.

After a jury-waived trial, the plaintiff was convicted of a variety of crimes.² He was sentenced as follows: On count 2, six years to six years and one day to State prison; on count 5, two and one-half years in the house of correction, with eighteen months to be served directly, from and after the sentence on count 2, and the balance to be suspended with probation for five years; on count 6, three months in the house of correction, concurrent with the sentence on count 5 and from and after the sentence on count 2; on count 3, seven and one-half years of probation commencing on the date of sentencing;³ and on counts 1 and 4, five years of probation commencing upon release from the sentence on count 5. Thus, the plaintiff is serving consecutive sentences in unlike facilities, i.e., State prison followed by the house of correction.

The plaintiff claims that his parole eligibility date should have been December 23, 2018, instead of December 16, 2020. His claim is based on a misapplication of governing parole board regulations. When an inmate is serving a sentence structure exclusively to the house of correction, parole eligibility is determined by 120 Code Mass. Regs. §§ 200.02(1), 200.08(1) (2017). When the sentence structure is exclusively to the State prison, parole eligibility is controlled by 120 Code Mass. Regs. §§ 200.02(2), 200.08(2) (2017). Contrary to the plaintiff's claim, none of these regulations govern the plaintiff's sentence structure.

Because the plaintiff's sentence structure was a hybrid of a prison term followed by a house of correction term, the proper way to decide the plaintiff's parole eligibility is to calculate the parole eligibility periods of each sentence and then aggregate those periods to determine one date. See Henschel v. Commissioner of Correction, 368 Mass. 130, 137 (1975). Under Henschel, the defendant correctly calculated the plaintiff's single parole eligibility date as December 16, 2020. The motion to dismiss was properly allowed.

Judgment affirmed.

FOOTNOTES

2.   The plaintiff was convicted of unlawful possession of a prohibited weapon (count 1), home invasion (count 2), stalking (count 3), intimidation of a witness (count 4), repeatedly telephoning or contacting a person electronically for the purpose of harassing or annoying that person (count 5), and assault and battery (count 6). Those convictions were affirmed on appeal by this court. Commonwealth v. Fox, 90 Mass. App. Ct. 1108 (2016).

3.   The plaintiff violated the terms of his probation, and he was resentenced on this count to two and one-half years in the house of correction to be served after his sentence on count 5. This resentencing did not change the overall structure of his sentences.