COMMONWEALTH v. CARPENTER (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Joseph G. Carpenter, appeals from an order of a Superior Court judge denying his motion for additional jail credit on his sentences for six counts of breaking and entering a building in the nighttime with the intent to commit a felony, G. L. c. 266, § 16, two counts of larceny, G. L. c. 266, § 30 (1), and one count of receiving a stolen motor vehicle, G. L. c. 266, § 28 (a), or, in the alternative, to withdraw his guilty pleas. We conclude that the defendant is not entitled to jail credit for time he spent serving a committed sentence and that the judge acted within her discretion in denying jail credit for time spent awaiting trial that was already credited to another sentence. Further concluding that the defendant has failed to meet his burden of showing that he received ineffective assistance of counsel, we affirm.

1. Jail credits. “If a defendant is held in custody before trial, G. L. c. 279, § 33A, and G. L. c. 127, § 129B, mandate that he or she be credited with those days spent incarcerated toward the sentence eventually received.” Commonwealth v. Caliz, 486 Mass. 888, 891 (2021). “[W]here the statute does not strictly control, considerations of fairness and fair treatment of the defendant guide the determination of whether to give jail credit.” Commonwealth v. Maldonado, 64 Mass. App. Ct. 250, 251 (2005).

The defendant was arrested on April 11, 2019, and arraigned on two separate criminal complaints. The first charged the defendant with, inter alia, reckless operation of a motor vehicle, G. L. c. 90, § 24 (2) (a). The second charged the defendant with, inter alia, receiving a stolen motor vehicle, which ultimately became part of the Superior Court case. On May 24, 2019, the Superior Court indictments were returned.

On July 31, 2019, the defendant pleaded guilty in District Court to reckless operation. The judge sentenced the defendant to nine months in a house of correction and awarded him 112 days of jail credit, representing all the time he had been incarcerated since his April 11, 2019, arrest.

On March 5, 2020, the defendant pleaded guilty to the Superior Court charges and was sentenced to six to eight years in State prison on the lead charges, concurrent with each other. The defendant was awarded 101 days of jail credit, presumably reflecting the time between when he finished serving the house of correction sentence and when he pleaded guilty to the Superior Court indictments.

“[A] defendant is not entitled to jail credit for time spent awaiting trial if he is already serving a committed sentence for unrelated offenses.” Commonwealth v. Pearson, 95 Mass. App. Ct. 724, 726 (2019). During such periods, the defendant is “in confinement pursuant to a sentence for an unrelated crime of which he had been convicted,” not “in custody awaiting trial.” Commonwealth v. Barton, 74 Mass. App. Ct. 912, 913 (2009), quoting Commonwealth v. Foley, 15 Mass. App. Ct. 965, 966 (1983). Accordingly, the defendant may not receive jail credit for the time he was incarcerated in a house of correction pursuant to his District Court plea.

“A defendant in custody awaiting trial on multiple unrelated cases is entitled to apply the jail credit to only one case; however, a judge has discretion to award jail credit to multiple cases upon a timely request.” Pearson, 95 Mass. App. Ct. at 727. Here, the time between the defendant's arrest and his District Court plea was credited to his house of correction sentence. The Superior Court judge recognized her discretion to award that same time to the State prison sentence, but she declined to do so in light of the fact that “[t]he events that gave rise to the district court charges occurred well before the events leading to the superior court charges, and involved misconduct of a totally different variety from the events leading to the indictments.” We discern no abuse of discretion, as “it would be contrary here to the ultimate goal of fairness to allow the defendant to earn two days of credit for every day in jail.” Commonwealth v. Harvey, 66 Mass. App. Ct. 297, 301 (2006).

2. Ineffective assistance of counsel. “Ineffective assistance of counsel requires ‘behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer,’ which ‘likely deprived the defendant of an otherwise available, substantial ground of defen[s]e.’ ” Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175 (2018), quoting Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 44 (2015). “The defendant has the burden to establish both prongs.” Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 824 (2019).

Here, the defendant has failed to meet this burden. He has provided us with neither an affidavit of plea counsel nor a transcript of the plea colloquy. See Gilbert, 94 Mass. App. Ct. at 178 (“the absence of an affidavit from plea counsel, without a description of unsuccessful attempts to secure such an affidavit, is conspicuous”). Accord Commonwealth v. Lys, 481 Mass. 1, 6 (2018). The defendant's affidavit merely states that he “reasonably believed, and was informed by counsel, that the county time from both cases[² ] would be concurrent with the state time on this matter.” He makes no assertion that plea counsel discussed jail credits with him or that he would not have pleaded guilty had he been informed that he would not receive the extra jail credit. See Commonwealth v. Al Kenani, 100 Mass. App. Ct. 288, 295-296 (2021). To the contrary, the defendant now asserts that “the granting of that credit will have minimal impact on the overall length of his sentence.” In any event, “[t]he judge was free to reject the self-serving affidavits the defendant offered in support of his new trial motion.” Commonwealth v. Bolton, 92 Mass. App. Ct. 469, 475 (2017). The defendant has failed to demonstrate that he received ineffective assistance of counsel.

Order denying motion for jail credit, or in the alternative to withdraw pleas, affirmed.

FOOTNOTES

2.   The defendant was sentenced in Superior Court to concurrent sentences in a house of correction for receiving a stolen motor vehicle and for larceny.