Febonio v. Superintendent

664 N.E.2d 481, 40 Mass. App. Ct. 933, 1996 Mass. App. LEXIS 164

• Court: Massachusetts Appeals Court
• Decided: May 9, 1996
• Docket: No. 95-P-1614
• Status: Published

Opinion

Prior to its amendment in 1989, G. L. c. 94C, § 32H, precluded individuals convicted of certain drug offenses from being “eligible for probation, parole, furlough, or work release” until they had served the mandatory minimum term of imprisonment established by the applicable sentencing statute. In Rodriguez v. Superintendent, Northeastern Correctional Center, 24 Mass. App. Ct. 481 (1987), we held that § 32H did not prohibit the application of statutory good time pursuant to G. L. c. 127, § 129, even where such deductions allowed a prisoner to be discharged before serving the mandatory minimum term of imprisonment. Id. at 485. In comparing other statutes, we noted that “when the Legislature has intended to restrict the application of such deductions it has done so in an explicit manner.” Id. at 484. Since § 32H did not specifically exclude the application of good conduct deductions to mandatory minimum sentences, we resolved any existing ambiguity strictly against the Commonwealth. Id. at 484-485.

Matthew S. Robinowitz for the plaintiff. William D. Saltzman for the defendant.

In the wake of Rodriguez, the Legislature amended G. L. c. 94C, § 32H. See St. 1989, c. 415. It explicitly prohibited the receipt of any deduction for good conduct under G. L. c. 127, § 129, during the three year mandatory minimum established by G. L. c. 94C, § 32E.⁴ Compare Lydon v. Sheriff of Plymouth County, 393 Mass. 1002, 1002-1003 (1984) (interpreting firearm statute so as to preclude accumulation of earned good time credit pursuant to G. L. c. 127, § 129D, during mandatory minimum term); Commonwealth v. Haley, 23 Mass. App. Ct. 10, 17 (1986) (interpreting G. L. c. 90, § 24G(a), as a general statement of a desired result with a list of forbidden ways to stymie that result).

Nothing in Difario v. Commissioner of Correction, 371 Mass. 545 (1976), indicates a contrary result. Rather, the consecutive sentences are to be aggregated for purposes of determining the rate of reduction and a single termination date. See id. at 551-552. However, the prisoner does not receive good conduct deductions for the period during which he serves his mandatory minimum. See G. L. c. 94C, §§ 32E and 32H. In the instant case, the prisoner does not begin to accrue good time deductions on his initial sentence until after he has served his three year mandatory minimum. Thus, he is eligible for good time deductions on the remaining one day of his initial sentence and on the three years and one day of his consecutive nonmandatory sentence.

The petitioner also challenges the calculation of his discharge date on equal protection grounds. He claims that he is treated differently than prisoners serving a single sentence with a three-year mandatory minimum. Because the petitioner is not similarly situated, we find no equal protection violation.

Judgment affirmed.

4 “A person convicted of violating any provision of [G. L. c. 94C, § 32E] shall not, until he shall have served the mandatory minimum term of imprisonment established, in [G. L. c. 94C, § 32E], be eligible for probation, parole, furlough, work release, or receive any deduction from his sentence for good conduct under [§§ 129, 129A, 129C and 129D of chapter 127] . . . .” G. L. c. 94C, § 32H, as amended through St. 1989, c. 415.