Commonwealth v. Felt

COMMONWEALTH v. RICHARD FELT.

12-P-1561

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

March 16, 2015

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this consolidated appeal, the defendant appeals the denials of two postconviction motions for relief that sought eighty-six days' jail credit toward an already-completed sentence.¹ The defendant contends he is entitled to this relief which would have rendered the Commonwealth's petition to classify him as a sexually dangerous person untimely, as he would not have been a "prisoner" for purposes of G. L. c. 123A, § 12(b). We affirm.

Background. The defendant was arrested in New Hampshire on February 26, 1986, and charged with "felonious sexual assault." He remained in custody on that charge until May 29, 1986, whenthe New Hampshire authorities filed a nolle prosequi because the victim in that case was unable to identify the defendant as the person who assaulted him. In the meantime, the defendant also had been charged in Massachusetts on March 4, 1986, for a similar assault; an arrest warrant had issued that day. After the New Hampshire case was terminated, New Hampshire authorities continued to hold the defendant until he was transported to Massachusetts for arraignment on his indictment, which charged him with indecent assault and battery on a child under the age of fourteen. That June 11, 1986, arraignment was his first appearance in Massachusetts on this case.

On June 8, 1988, after a jury trial on the indictment, the defendant was sentenced to a term of four to six years' imprisonment. Several years later, in 1991, the defendant escaped from custody. While on escape status in Massachusetts, he was charged and convicted in 1993 in the State of Maine of various other sexual offenses -- resulting in a twenty-year State prison sentence in Maine. In 2005, the defendant was returned to Massachusetts to serve the remainder of his four- to six-year sentence on the indecent assault and battery. He was also sentenced to three to five years of from-and-after imprisonment for the escape from Massachusetts custody. In July, 2011, one month before the defendant was due to complete his sentence, the Commonwealth filed a petition for thedefendant's civil commitment as a sexually dangerous person (SDP) pursuant to G. L. c. 123A, § 12.² By his postconviction motions filed on April 12, 2012, and April 30, 2013, the defendant sought eighty-six days of credit for the time, after his Massachusetts arrest warrant issued, that he spent confined in New Hampshire awaiting trial on the unrelated New Hampshire case.³ He admits that, without the credit he seeks, his sentence ended in August, 2011.

Discussion. The defendant asserts the motion judges erred in failing to credit his sentence by eighty-six days pursuant to G. L. c. 279, § 33A, and G. L. c. 127, § 129B, for dead time spent in New Hampshire custody. He also contends he was entitled to have his sentence corrected, despite his having served the sentence in its entirety, because the correction would result in an end date that predates the Commonwealth's petition for his civil commitment as an SDP. If that were the case, he would not have been a "prisoner" for purposes of G. L. c. 123A, § 12(b), at the time the Commonwealth's petition wasfiled, and the petition would have to be dismissed. We disagree that sentence correction was required here.

In the first place, "time spent in custody awaiting trial for one crime generally may not be credited against a sentence for an unrelated crime." Commonwealth v. Milton, 427 Mass. 18, 24 (1998). See Commonwealth v. Velez, 86 Mass. App. Ct. 727, 730 (2014). This defendant received credit for all of the time that he was held on the indecent assault and battery charge, including the time that he was held in New Hampshire after the nolle prosequi and before his arraignment in Massachusetts. See note 3, supra. In addition, contrary to the defendant's assertion, the New Hampshire case was unrelated to the Massachusetts case.⁴ While in some instances the courts have determined that "considerations of fairness" require that the defendant "should not be required to serve 'dead...