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13-P-1334                                               Appeals Court

                  COMMONWEALTH   vs.   WILLIAM VELEZ.


                           No. 13-P-1334.

       Suffolk.       November 3, 2014. - December 9, 2014.

            Present:    Grainger, Rubin, & Hanlon, JJ.


Imprisonment, Credit for time served.      Practice, Criminal,
     Sentence, Probation.



     Indictment found and returned in the Superior Court
Department on September 3, 2009.

     A motion for pretrial confinement credit, filed on April
17, 2013, was considered by Frances A. McIntyre, J.


     Rebecca A. Jacobstein for the defendant.
     Helle Sachse, Assistant District Attorney, for the
Commonwealth.


    HANLON, J.    The defendant appeals from the partial denial

of his motion for pretrial confinement credits on the sentence

imposed on his probation revocation, claiming that he is

entitled to an additional fifty-six days of credit for time he
                                                                    2


spent in jail awaiting trial on what he describes as unrelated

charges.     We affirm in part and reverse in part.

     Background.    "As with most sentencing disputes, a specific

chronology is useful to clarify the issues."     Commonwealth v.

Holmes, 83 Mass. App. Ct. 737, 737 (2013), S.C., 469 Mass. 1010

(2014).    At various times during the period at issue, the

defendant had three unrelated, open criminal charges -- an

assault and battery charge, an unarmed robbery charge that was

reduced to larceny from the person, and a charge of failure to

register as a sex offender.     It is the failure to register

charge that is primarily at issue in this case; it arose in the

Waltham District Court, which issued a criminal complaint for

that offense on May 8, 2009.    The defendant was arraigned on

July 22, 2009, and was held at the Nashua Street jail on $5,000

bail from the July 22, arraignment date until at least August

24, 2009.1

     The docket sheet in the record does not indicate that bail

ever was posted or reduced; however, the parties appeared to

agree that the defendant was not held on that charge after

August 24, 2009, apparently in reliance on the letter from the

keeper of the records at the Nashua Street jail.      See note 1,

     1
       The appendix includes a letter from the keeper of the
records at the Nashua Street jail which indicates that the
defendant was incarcerated on the failure to register charge at
the Nashua Street jail from July 22, 2009, through August 24,
2009.
                                                                     3


supra.    However, the District Court docket sheet also shows

that, on August 24, 2009, the failure to register case was

continued to September 29, 2009, with the notation "Habe to

Nashua St. Jail same bail $5/0'."    From this, we conclude that,

although the defendant was held in the Suffolk County (Nashua

St.) jail on other charges, and required a writ of habeas corpus

to bring him back to the District Court on September 29, he also

was transported with a $5,000 bail mittimus to secure his return

to the District Court to appear for the failure to register

case.2    There is no entry indicating that the bail remained the

same at the next hearing on September 29, but, by that time, the

defendant had been indicted, and the indictment warrant would

have prevented his release regardless of the District Court bail

status.

     The defendant was indicted on the failure to register case

on September 3, 2009, and arraigned in Superior Court on October

7, 2009.    At his arraignment, he was held on the same $5,000

cash bail as in the related District Court case; he remained in

custody until March 31, 2010, when he pleaded guilty and was

sentenced to three years' probation.    On September 13, 2011, the

defendant was before the court for a probation violation hearing


     2
       At oral argument, the defendant agreed with this reading.
The Commonwealth agreed that the docket sheet could be read that
way, but maintained that the record of the Nashua Street jail
was more likely to be accurate.
                                                                     4


and afterwards was released on personal recognizance.    He

defaulted on November 29, 2011, and remained in default until

January 10, 2012, when he appeared before the court; he was then

held until February 28, 2012, when he was found in violation of

the terms of his probation.    On March 1, 2012, the defendant was

sentenced to State prison for five years to five years and one

day.    It is against this sentence that the defendant seeks

credit for time served.

       On April 17, 2008, more than one year before the complaint

for failing to register issued, the defendant had been charged

in the Boston Municipal Court with one count of assault and

battery.    He pleaded guilty on August 12, 2008, and was placed

on probation for two years.    On August 26, 2008, the defendant

was before the court for a preliminary probation violation

hearing.    That matter was continued several times until the

defendant failed to appear on November 19, 2008.    On July 9,

2009, the defendant was back before the court for violating the

terms of his probation; he was detained on the probation

violation until August 21, 2009, when he stipulated to the

probation violation.    His probation was then extended to August

11, 2010.    A warrant was issued for the defendant's arrest on

that probation case when he failed to appear on March 22, 2010.

On April 1, 2010, the day after he pleaded guilty to failing to

register as a sex offender, the defendant went back before the
                                                                    5


Boston Municipal Court on the assault and battery case; his

probation was then terminated, and he was discharged.

    In addition, on August 26, 2008, the defendant had been

charged in the Boston Municipal Court with unarmed robbery and

assault and battery by means of a dangerous weapon (larceny

charge).   He was held initially, but bail was reduced to $400

cash on September 23, 2008, and he appears to have posted the

bail.   As noted earlier, the defendant defaulted on November 19,

2008, and remained in default until he came back before the

court on July 9, 2009.   He was held on $750 cash bail until

October 21, 2009, when the Commonwealth answered not ready for

trial, and the charges were dismissed "For Want of Prosecution."

    The defendant originally was given fifty-one days' credit

for the time he was held between January 10, 2012, through

February 29, 2012, while the probation violation hearing (on the

failure to register charge) was pending, before he received a

sentence on March 1.   He later was given an additional 176 days

of credit for the time he spent from October 7, 2009, when he

was arraigned in Superior Court on the failure to register

charge, through March 31, 2010, when he was placed on probation.

The defendant then filed a motion requesting pretrial

confinement credit for ninety additional days, from July 9,

2009, through October 6, 2009.   The judge allowed the motion

with respect to the thirty-four days from July 22, 2009, through
                                                                      6


August 24, 2009, when the parties agree that the defendant was

held on District Court bail for the failure to register

complaint.   The judge denied the motion with respect to the

remaining fifty-six days.

    Discussion.    The defendant now argues that the judge

unfairly declined to credit him with fifty-six days he spent

incarcerated awaiting trial on what he characterized originally

as unrelated charges.     The defendant's request for credit can be

divided into two parts:     first, during the thirteen days from

July 9, 2009, through July 21, 2009, he was held on both the

assault and battery charge and the larceny charge, but not the

failure to register charge; second, during the forty-three days

from August 25, 2009, through October 6, 2009, he was held on

the larceny charge and, as appears from our review, also on the

failure to register charge.

    The first period, that is, the time the defendant was held

only on the assault and battery and the larceny charges was for

different crimes, unrelated to and, in fact, preceding his

arraignment on the failure to register charge for which he is

now serving a sentence.    A defendant normally is not entitled to

credit for time spent in detention on unrelated charges.     See

Commonwealth v. Milton, 427 Mass. 18, 24 (1998) ("[T]ime spent

in custody awaiting trial for one crime generally may not be

credited against a sentence for an unrelated crime").    While
                                                                   7


"[i]n some circumstances, a defendant may be allowed to credit

time in an unrelated case if necessary to prevent a defendant

from serving 'dead time,'" ibid., this first period of time is

not such a circumstance.    Permitting the defendant to credit

those days is tantamount to permitting him to "bank" time -- not

against the sentence on the failure to register charge, which

crime, admittedly, he had already committed, but against the

sentence on the probation violation on the failure to register

charge, which came later, at least after he was placed on

probation on March 31, 2010.   As the court pointed out in

Commonwealth v. Holmes, 469 Mass. at 1011, "the banking

prohibition outweighs any concern about dead time."

    The second period, from August 25, 2009, through October 6,

2009, is different.   During that period, it appears that,

notwithstanding the $750 bail on the untried larceny case, the

defendant actually and primarily was held on the $5,000 bail

that was set initially in the District Court on the failure to

register charge at issue, and reaffirmed in Superior Court when

the defendant was arraigned on the indictment for that charge.

Despite the judge's contrary finding, the case records on that

charge support our conclusion that the time period at issue was

governed by the failure to register charge that is the basis of

the defendant's sentence.   It is also clear that any time spent

in custody awaiting trial on a charge should be credited against
                                                                    8


a later sentence on that offense, even if a period of probation

precedes the imposition of the committed sentence.   See Watts v.

Commissioner of Correction, 42 Mass. App. Ct. 951, 953 (1997)

(Days spent awaiting trial on a charge that resulted in a

probation sentence "are not inevitably lost to the [defendant]

because he would become entitled to a credit for them in the

event he were to be imprisoned for a probation violation with

respect to his suspended sentences on the new crimes.   See G. L.

c. 279, § 33A").

    Insofar as the order on the defendant's motion for pretrial

confinement credit denies credit for the thirteen-day period

between July 9, and July 21, 2009, it is affirmed.   As to the

second forty-three day period at issue, that is, from August 24

to October 6, 2009, the order is reversed, and a new order shall

enter allowing the defendant credit for that time against the

sentence he is now serving.

                                   So ordered.
     GRAINGER J. (concurring).    I concur in the result reached

by the majority, and wish to acknowledge the precision and

conscientious analysis required to parse a record of this

complexity.   I write separately to note that our current case

law obviates the need for much of the careful review afforded

this defendant.   While fairness is the professed touchstone by

which we determine entitlement to credit for previous

incarceration,1 Commonwealth v. Holmes, 469 Mass. 1010, 1011

(2014) (Holmes), citing Chalifoux v. Commissioner of Correction,

375 Mass. 424, 427-428 (1978), our law now severely

circumscribes that concept.

     This is best illustrated by the thirteen-day period this

defendant was held for an "unrelated" offense, after which he

was released without any change to his previous sentence of

straight probation, and for which he then sought credit.     The

motion judge denied his request, speculating that "it may have

been considered by the prosecutor and the Probation Department

that [the defendant's] pretrial detention was a sufficient

penalty for the circumstance."   The judge's speculation seeks to

justify the thirteen days of incarceration as tantamount to the

imposition of a sentence for time served, albeit without the

     1
       The defendant's petition for credit implicates, but does
not explicitly invoke, the prohibition under the Fifth Amendment
to the United States Constitution against deprivation of liberty
without due process. See art. 12 of the Massachusetts
Declaration of Rights.
                                                                    2


benefit of any actual finding, conviction, or accompanying

sentencing procedure.   Yet even that strained rationale no

longer appears necessary to meet our current standard of

fairness, as the Supreme Judicial Court has determined that we

will not require the Commonwealth to expend resources in order

to provide a legal basis for incarceration merely to avoid the

possibility that a defendant may seek credit for that

imprisonment at some future time.2   Holmes, supra at 1013.

     Additional factors, disconcertingly asserted by our case

law as pertinent to credit for dead time, are also present here.

This defendant is a multiple recidivist.   Without a second

incarceration, credit is not possible; recidivism is thus a

precondition to raise the issue of credit for dead time.      Yet

even as it does so, recidivism is considered a factor to be

weighed against granting credit for dead time, automatically

diminishing entitlement to fairness.   Ibid.   I submit that

recidivists have the same right as other individuals not to be

incarcerated without a legal basis, and to receive credit if it

is determined that they were.




     2
       I concur independently of this issue because I agree that
"banking," properly defined, provides a legitimate basis to deny
credit here, as the defendant knew he had been released without
a finding before he violated his probation on the failure to
register charge.
                                                                   3


    Recidivism obviously does not come into play in the

provision of credit for time served in computing a sentence for

the same crime after trial and conviction.    Credit for such

pretrial confinement is not subject to dispute in Massachusetts

and does not raise the issue of dead time, as it involves no

subsequent reversal.    It does, however, provide the purely

semantic source of the concept, imported into our cases, of the

entitlement to credit for unjustified imprisonment only on a

"related" offense.    This has no rational nexus to any

considerations of fairness.    Holmes, supra at 1012.

("Substantive or temporal connection" constitute very important

factors in dead time consideration).

    Yet additionally, our cases have held that a sentence fully

served, then vacated, is less deserving of credit than one

interrupted in medias res.    Holmes, supra at 1012.    I submit

that the application of redress only to a shorter period of

legally unsupported imprisonment, but not to a longer one, is

illogical, and certainly not consonant with any rational notion

of fairness.

    Finally, our case law holds that the underlying reason a

conviction is vacated should be considered in deciding whether

to credit a defendant for time served pursuant to that

conviction.    We favor reversals based on indicia of actual

innocence.    For example, in Holmes, the defendant served two
                                                                   4


years pursuant to a conviction that was vacated when a judge

determined the defendant had not received effective assistance

of counsel.   Thus, despite the reversal of his conviction,

Holmes did not fulfil what can only be described as a judicially

established defendant's burden to establish his innocence of the

underlying charge.   Holmes, supra at 1012 n.3.   To be sure,

Holmes states that there may arise an "equally compelling

circumstance" analogous to a determination of innocence that

would meet the test of fairness.   But ineffective assistance of

counsel, notwithstanding its constitutional dimension,3 is found

not to meet this test.

     I concur in the denial of credit in this case because

knowledge of a previous legally unjustified confinement can be

imputed to this defendant at the time when he again violated his

probation. If the timing were otherwise, fairness would compel a

contrary result.




     3
       See Sixth Amendment to the United States Constitution;
art. 12 of the Massachusetts Declaration of Rights; and
Strickland v. Washington, 466 U.S. 668, 686 (1984).
