NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1442
COMMONWEALTH
vs.
BARRY L. THOMAS, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Allowing a defendant's motion to revise and revoke his
sentence, a District Court judge ordered that the defendant be
credited for 365 days and his sentence be deemed served. The
Commonwealth appeals and argues that the sentencing judge
erroneously included jail credit on an unrelated case. We
affirm.
Sentence. The defendant's sentence stems from a complaint
that issued from the Brockton District Court on July 3, 2020.
The complaint charged the defendant with failure to stop (G. L.
c. 90, § 25) and operating a motor vehicle with a suspended
license (subsequent offense) (G. L. c. 90, § 23). Following
arraignment, the defendant was released on personal recognizance until his bail was revoked for fifty-one days. On December 19,
2022, the prosecution dismissed the failure to stop charge, and
the remaining charge was continued without a finding for six
months of administrative probation. Following a violation of
probation, the probation period was extended for an additional
six months. The defendant violated his probation once again,
and the defendant remained in custody awaiting a hearing for an
additional forty-two days (bringing the total days in custody to
ninety-three). On September 25, 2023, the sentencing judge
entered a guilty finding and sentenced the defendant "without
prejudice" to the maximum of one year in the house of
correction. In doing so, the judge awarded seventy-one days of
credit and acknowledged that the defendant may have additional
sentence credit, but he did not want to calculate the exact
credit "on the fly" and encouraged counsel to file a motion (the
docket reflected ninety-three days of credit).
Revised sentence. Days later, on October 3, 2023, the
defendant filed a motion to revise or revoke the sentence. He
sought credit for time he was held in custody awaiting trial on
an unrelated case in the Stoughton District Court where he was
previously sentenced following a guilty plea on March 6, 2023.
Defense counsel's affidavit, however, acknowledged that the
defendant received full credit of 244 days on the Stoughton
sentence for the time held awaiting trial in that case. At the
2 October 27, 2023 hearing on the defendant's motion, the judge
discussed his intent to structure the sentence and credit so
that the defendant would be released fifty days after the date
of the hearing (on November 22). He was concerned that the jail
might misinterpret the sentence: "I just want to make sure he
gets credit for having already served the time so that it
doesn't appear as a new sentence of 50 days; do you know what I
mean?" See G. L. c. 90, § 23 (sentence of sixty days to one
year for subsequent offense of operation after suspension). In
an effort to structure a sentence resulting in the defendant's
release fifty days from the hearing, the judge allowed the
motion to revise and revoke, ultimately giving the defendant
credit for 315 days on his 365 day sentence. These credits
included the defendant's time held in custody before sentencing
in the unrelated Stoughton case.
Reconsideration. On October 30, 2023, the Commonwealth
filed a motion for reconsideration and reported that the house
of correction calculated only ninety-three days of available
credit on the defendant's sentence. That same day, the
sentencing judge denied the motion without a hearing. The next
day, the Commonwealth filed a notice of appeal and an emergency
motion for reconsideration and motion to stay the defendant's
release from custody. A different judge allowed the
Commonwealth's motion to stay. In the meantime, the defendant
3 filed another motion to revise and revoke with a different
calculation for sentence credit. On November 20, 2023, the
sentencing judge held a hearing, awarded the defendant 365 days
credit, and concluded that the defendant's sentence "is deemed
served and completed."
Discussion. Within sixty days of sentencing, a judge may
revise or revoke a sentence upon motion of the defendant "if it
appears that justice may not have been done." Mass. R. Crim. P.
29 (a) (2), as appearing in 378 Mass. 899 (1979). The purpose
of the rule is to allow a judge to reconsider a sentence to
"determine, in light of the facts as they existed at the time of
sentencing, whether the sentence was just." Commonwealth v.
McCulloch, 450 Mass. 483, 487 (2008), quoting Commonwealth v.
DeJesus, 440 Mass. 147, 152 (2003). Occasions will inevitably
occur where a conscientious judge, upon reflection, will
conclude that the sentence was "too harsh" or "failed to give
due weight to mitigating factors." District Attorney for the N.
Dist. v. Superior Court, 342 Mass. 119, 128 (1961). "In such
cases the interests of justice and sound judicial administration
will be served by permitting the trial judge to reduce the
sentence within a reasonable time." Id.
Here, on September 25, the judge initially imposed a one-
year sentence, acknowledged that he was imposing the maximum,
and invited the defendant to file a motion to revise or revoke
4 due to a question about potentially substantial sentence credit.
At the hearing on the defendant's subsequently filed motion to
revise and revoke on October 27, the judge indicated his intent
to impose a sentence that included 315 days credit, which would
result in the defendant's release in fifty days from the date of
the hearing (November 22). By applying 315 days of credit, the
judge erred because the credit well exceeded the 125 days the
defendant had actually served in this case as of October 27.
"[A] prisoner is to receive credit for all jail time -- neither
more nor less -- served before sentencing which relates to the
criminal episode for which the prisoner is sentenced, but does
not receive credit greater than the number of days of his
presentencing confinement." Commonwealth v. Carter, 10 Mass.
App. Ct. 618, 620-621 (1980).
To the extent the judge also applied credit from time
served by the defendant under the prior and completed and
unrelated Stoughton sentence, he could not do so in these
circumstances. The defendant could only receive credit for jail
time served in this case, regardless of jail time he may have
served in another case pre-trial. Put differently, where the
defendant had only served 125 days in this case, that was the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1442
COMMONWEALTH
vs.
BARRY L. THOMAS, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Allowing a defendant's motion to revise and revoke his
sentence, a District Court judge ordered that the defendant be
credited for 365 days and his sentence be deemed served. The
Commonwealth appeals and argues that the sentencing judge
erroneously included jail credit on an unrelated case. We
affirm.
Sentence. The defendant's sentence stems from a complaint
that issued from the Brockton District Court on July 3, 2020.
The complaint charged the defendant with failure to stop (G. L.
c. 90, § 25) and operating a motor vehicle with a suspended
license (subsequent offense) (G. L. c. 90, § 23). Following
arraignment, the defendant was released on personal recognizance until his bail was revoked for fifty-one days. On December 19,
2022, the prosecution dismissed the failure to stop charge, and
the remaining charge was continued without a finding for six
months of administrative probation. Following a violation of
probation, the probation period was extended for an additional
six months. The defendant violated his probation once again,
and the defendant remained in custody awaiting a hearing for an
additional forty-two days (bringing the total days in custody to
ninety-three). On September 25, 2023, the sentencing judge
entered a guilty finding and sentenced the defendant "without
prejudice" to the maximum of one year in the house of
correction. In doing so, the judge awarded seventy-one days of
credit and acknowledged that the defendant may have additional
sentence credit, but he did not want to calculate the exact
credit "on the fly" and encouraged counsel to file a motion (the
docket reflected ninety-three days of credit).
Revised sentence. Days later, on October 3, 2023, the
defendant filed a motion to revise or revoke the sentence. He
sought credit for time he was held in custody awaiting trial on
an unrelated case in the Stoughton District Court where he was
previously sentenced following a guilty plea on March 6, 2023.
Defense counsel's affidavit, however, acknowledged that the
defendant received full credit of 244 days on the Stoughton
sentence for the time held awaiting trial in that case. At the
2 October 27, 2023 hearing on the defendant's motion, the judge
discussed his intent to structure the sentence and credit so
that the defendant would be released fifty days after the date
of the hearing (on November 22). He was concerned that the jail
might misinterpret the sentence: "I just want to make sure he
gets credit for having already served the time so that it
doesn't appear as a new sentence of 50 days; do you know what I
mean?" See G. L. c. 90, § 23 (sentence of sixty days to one
year for subsequent offense of operation after suspension). In
an effort to structure a sentence resulting in the defendant's
release fifty days from the hearing, the judge allowed the
motion to revise and revoke, ultimately giving the defendant
credit for 315 days on his 365 day sentence. These credits
included the defendant's time held in custody before sentencing
in the unrelated Stoughton case.
Reconsideration. On October 30, 2023, the Commonwealth
filed a motion for reconsideration and reported that the house
of correction calculated only ninety-three days of available
credit on the defendant's sentence. That same day, the
sentencing judge denied the motion without a hearing. The next
day, the Commonwealth filed a notice of appeal and an emergency
motion for reconsideration and motion to stay the defendant's
release from custody. A different judge allowed the
Commonwealth's motion to stay. In the meantime, the defendant
3 filed another motion to revise and revoke with a different
calculation for sentence credit. On November 20, 2023, the
sentencing judge held a hearing, awarded the defendant 365 days
credit, and concluded that the defendant's sentence "is deemed
served and completed."
Discussion. Within sixty days of sentencing, a judge may
revise or revoke a sentence upon motion of the defendant "if it
appears that justice may not have been done." Mass. R. Crim. P.
29 (a) (2), as appearing in 378 Mass. 899 (1979). The purpose
of the rule is to allow a judge to reconsider a sentence to
"determine, in light of the facts as they existed at the time of
sentencing, whether the sentence was just." Commonwealth v.
McCulloch, 450 Mass. 483, 487 (2008), quoting Commonwealth v.
DeJesus, 440 Mass. 147, 152 (2003). Occasions will inevitably
occur where a conscientious judge, upon reflection, will
conclude that the sentence was "too harsh" or "failed to give
due weight to mitigating factors." District Attorney for the N.
Dist. v. Superior Court, 342 Mass. 119, 128 (1961). "In such
cases the interests of justice and sound judicial administration
will be served by permitting the trial judge to reduce the
sentence within a reasonable time." Id.
Here, on September 25, the judge initially imposed a one-
year sentence, acknowledged that he was imposing the maximum,
and invited the defendant to file a motion to revise or revoke
4 due to a question about potentially substantial sentence credit.
At the hearing on the defendant's subsequently filed motion to
revise and revoke on October 27, the judge indicated his intent
to impose a sentence that included 315 days credit, which would
result in the defendant's release in fifty days from the date of
the hearing (November 22). By applying 315 days of credit, the
judge erred because the credit well exceeded the 125 days the
defendant had actually served in this case as of October 27.
"[A] prisoner is to receive credit for all jail time -- neither
more nor less -- served before sentencing which relates to the
criminal episode for which the prisoner is sentenced, but does
not receive credit greater than the number of days of his
presentencing confinement." Commonwealth v. Carter, 10 Mass.
App. Ct. 618, 620-621 (1980).
To the extent the judge also applied credit from time
served by the defendant under the prior and completed and
unrelated Stoughton sentence, he could not do so in these
circumstances. The defendant could only receive credit for jail
time served in this case, regardless of jail time he may have
served in another case pre-trial. Put differently, where the
defendant had only served 125 days in this case, that was the
maximum jail credit the judge could award as of the October 27
hearing. Also, by the time of his Brockton sentence, the
defendant had completed a "sentence for an unrelated crime of
5 which he had been convicted. The statutory purpose [of G. L.
c. 279, § 33A] was not to allow deductions for time served under
sentence for another crime, but was to afford relief to those
not convicted and not serving any sentence but who because of
inability to obtain bail, for example, were held in custody
awaiting trial." Commonwealth v. Foley, 15 Mass. App. Ct. 965,
965 (1983), quoting Needel, petitioner, 344 Mass. 260, 262
(1962). Contrast Commonwealth v. Ridge, 470 Mass. 1024, 1025
(2015) (where credit awarded on prior concurrent sentence is
"illusory," judge has discretion to award credit on longer
subsequent sentence in consideration of fairness).
We do not believe resentencing is necessary where the
record demonstrates that the judge, in substance, ultimately
revised the sentence once again on November 20. During a
hearing on that date, the judge expressed his intent to release
the defendant days earlier than he previously planned, adopted
the defense recommendation, and deemed the defendant's sentence
"served and completed" as of that date. Contrast Commonwealth
v. Henriquez, 440 Mass. 1015, 1016 (2003) (resentencing required
where judge's ambiguous remarks created "sufficient concern
about the appearance of justice"). The judge had broad
discretion, within the sentencing range of G. L. c. 90, § 23,
and the parameters of rule 29, to revise the sentence on
November 20 and to release the defendant who by then had served
6 149 days, and we discern no error in that ultimate decision.
See Commonwealth v. White, 436 Mass. 340, 343 (2002) (sentencing
"judges are permitted considerable latitude").
Order of November 20, 2023, revising sentence affirmed.
By the Court (Englander, Hodgens & Smyth, JJ.1),
Clerk
Entered: May 29, 2025.
1 The panelists are listed in order of seniority.