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14-P-1991                                           Appeals Court

                 COMMONWEALTH   vs.   RUARK BOND.


              No. 14-P-1991.      October 26, 2015.


Imprisonment, Credit for time served. Practice, Criminal,
     Sentence, Conduct of government agents.


     On May 28, 2013, the defendant pleaded guilty in Superior
Court to unlawful possession of a firearm (G. L. c. 269,
§ 10[a]), possession of ammunition without a firearm
identification card (G. L. c. 269, § 10[h]), possession of a
class A controlled substance with the intent to distribute
(G. L. c. 94C, § 32), and possession of a class B controlled
substance with the intent to distribute (G. L. c. 94C,
§ 32A[c]). As part of the plea bargain, the Commonwealth agreed
to dismiss various additional charges.1 The defendant was
sentenced to concurrent four- to five-year prison terms on three
of the convictions, and a concurrent two-year term in the house
of correction on the remaining conviction.

     Approximately one month before the defendant pleaded guilty
to these charges, he had filed in the Boston Municipal Court a
motion for new trial seeking to withdraw a previous guilty plea
(entered September 14, 2010) to possession with intent to




    1
       The Commonwealth agreed to dismissals of a charge of
carrying a loaded firearm (G. L. c. 269, § 10[n]), of so much of
the charge of unlawful possession of a firearm as alleged the
defendant's having done so as an armed career criminal, and of
subsequent offender enhancements on the two drug charges.
                                                                2


distribute cocaine.2 The basis of that motion was that his 2010
plea was not voluntary because the Commonwealth in that case had
been relying on a drug certificate signed by State chemist Annie
Dookhan. See Commonwealth v. Scott, 467 Mass. 336, 348, 352-353
(2014). The Commonwealth eventually assented to that motion and
-- with the defendant having completed his sentence on the
cocaine charge -- agreed to file a nolle prosequi for that
charge, which entered on April 22, 2014.

     The defendant then filed a motion in Superior Court seeking
jail time credit for the 341 days he had served on the (now
vacated) 2010 conviction, to be applied against his sentences on
the new convictions.3 Before us now is the defendant's appeal
from the denial of that motion.

     This case is governed by Commonwealth v. Holmes, 469 Mass.
1010 (2014). In that case, the Supreme Judicial Court clarified
that the reversal of a conviction does not entitle a defendant
to credit for jail time served on that conviction against a
sentence for a subsequent unrelated offense, even where the
second offense was committed before the first conviction was
reversed. Id. at 1012-1013. In Holmes, the court "le[ft] open
the possibility of allowing [jail time] credit for time served
on a completed sentence for an unrelated crime where there is
actual innocence or some other equally compelling circumstance."
Id. at 1012 n.3. The defendant argues that the Holmes rule
should not apply here, not because he is actually innocent, but
because the vacating of a conviction based on egregious
misconduct by a State chemist presents a circumstance "equally
compelling" to that of "actual innocence."

     We are unpersuaded by the defendant's argument. When
making the 2010 plea, the defendant agreed that he indeed had
possessed cocaine with the intent to distribute. The
egregiousness of Dookhan's laboratory practices raised
sufficient questions about the voluntariness of the plea that
the defendant was permitted to withdraw it. See Commonwealth v.

     2
       This motion was initially heard on the same day the
defendant tendered his pleas to the new charges in Superior
Court.
     3
       The convictions for which the defendant is now serving his
sentences are based on offenses that occurred on December 14,
2011. Thus, the defendant perpetrated these new offenses after
he had completed the committed portion of his sentence on the
2010 cocaine conviction.
                                                                   3


Scott, supra. However, the presumed government misconduct that
warranted vacating the defendant's conviction does not come
close to establishing that he was actually innocent of the
cocaine charge. Nor does it establish "equally compelling"
arguments for credit against his sentences on the new unrelated
convictions. Indeed, the defendant's circumstances are no more
compelling than those in Holmes itself, where the initial
conviction was vacated for demonstrated constitutionally
ineffective assistance of counsel. See Commonwealth v. Holmes,
supra at 1010-1011.

                                   Order denying motion seeking
                                     credit for time served on a
                                     vacated sentence to be
                                     applied to present sentence
                                     affirmed.


     Craig D. Mulcahey for the defendant.
     Vincent J. DeMore, Assistant District Attorney, for the
Commonwealth.
