COMMONWEALTH v. TRITES (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal from an order denying a motion for sentencing credit for the time spent in home confinement during a stay of sentence pending appeal on COVID-19 grounds. Following a hearing on June 19, 2020, the sentencing judge allowed the defendant's emergency motion to stay sentence pending appeal on COVID-19 pandemic grounds, setting conditions that included strict home confinement at the home of the defendant's girlfriend with GPS and SCRAM monitoring and an exception for authorized medical appointments only. On June 19, 2020, the defendant was released from State prison to begin his stay of sentence. The underlying, direct appeal of a conviction for operating under the influence of liquor as a fifth or subsequent offense was unsuccessful, and further appellate review was denied. See Commonwealth v. Trites, 98 Mass. App. Ct. 1108 (2020). The record indicates the defendant adhered to all the conditions of his stay. Following a hearing on October 29, 2020, the judge allowed the Commonwealth's motion to execute the sentence, and ordered the defendant to return to State prison, ending the stay. The defendant sought credit for the time spent in home confinement. His motion was denied and he now appeals.²

As the defendant acknowledges, the ordinary rule is that home confinement is not the functional equivalent of incarceration and does not qualify for sentence credit except in certain statutorily authorized penal programs. See Commonwealth v. Morasse, 446 Mass. 113, 120-122 (2006). The defendant argues that where “the deprivation of liberty to which the defendant was subjected” during the stay “approached incarceration,” Commonwealth v. Speight, 59 Mass. App. Ct. 28, 32 (2003), the judge has discretion to give sentence credit for time served during the stay, and that, as a matter of law, “strict home confinement as a COVID-19-vulnerable person during the COVID-19 pandemic [and before the availability of vaccines] constitutes a deprivation of liberty qualifying as the equivalent of incarceration.” In particular he points to the “significant isolation and anxiety” the circumstances entail.

Even assuming a judge has discretion to award credit for home confinement in some circumstances where that restriction approaches incarceration, something we need not decide, and that the defendant is a COVID-19-vulnerable person, we do not agree that home confinement of such a person during the COVID-19 pandemic differs in any material respect from the ordinary case in which home confinement is imposed as a condition of a stay of sentence. Nothing in the record indicates the risks to the health of the defendant were any different during the stay than the risks to the health of similarly situated individuals who were completely at liberty. Consequently, Morasse applies and the orders of the trial court are affirmed.

Order dated October 29, 2020, denying motion to revise or revoke sentence affirmed.

Order dated November 23, 2020, denying motion for sentencing credit affirmed.

FOOTNOTES

2.   The defendant also appeals from the order denying his motion to revise or revoke the sentence. For the reasons stated by the motion judge, there was no error in that denial.