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SJC-11557

               COMMONWEALTH   vs.   MARLON HOLMES.


                       September 12, 2014


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


     This case is before the court for further appellate review.
The Appeals Court, in a divided opinion, held that the defendant
must be credited for time served on a sentence for a vacated
conviction against sentences that he was serving on later
convictions. Commonwealth v. Holmes, 83 Mass. App. Ct. 737
(2013). The Commonwealth argues that the defendant is not
entitled to credit for time served on an earlier conviction that
was unrelated to the later convictions, where he had completed
serving the sentence before committing the new crimes. It
argues further that allowing credit in such circumstances
implicates the prohibition against banking time. We agree with
the Commonwealth, and affirm the Superior Court's order denying
the defendant's motion for credit.

     Background. The facts are fully set forth in the Appeals
Court's opinion. Commonwealth v. Holmes, supra at 737-738. In
short, in 1997, the defendant pleaded guilty to unlawful
possession of a controlled substance (class B) with intent to
distribute. After he completed serving his sentence on that
conviction in 1999, he was released. In 2003, the defendant
pleaded guilty to two counts of unlawful possession of a
firearm, both committed in 2002, and two subsequent offender
counts in violation of G. L. c. 269, § 10G (b). He was
sentenced to serve two concurrent terms of from twelve years to
twelve years and one day and credited for his pretrial
confinement. In 2005, while he was incarcerated for the 2003
convictions, the defendant moved to withdraw his guilty plea for
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the unrelated 1997 offense on the ground of ineffective
assistance of counsel. That motion was allowed in 2006, and the
underlying complaint for the 1997 offense was eventually
dismissed.1

     In 2011, while still incarcerated, he filed a motion "for
time served on reversed or revised prior sentences under [G. L.
c. 279, § 33A(6)]," seeking credit for the earlier sentence that
he had completed serving on the vacated 1997 conviction. A
Superior Court judge denied his motion for credit. The
defendant appealed. The Appeals Court reversed the denial of
the defendant's motion and credited him for the time that he had
served on the vacated 1997 conviction against the sentences that
he was serving on the 2003 convictions. Commonwealth v. Holmes,
supra at 744.

     Discussion. The defendant is not claiming any statutory
right to credit. See G. L. c. 127, § 129B; G. L. c. 279, § 33A.
Absent a controlling statute, considerations of fairness guide
our determination whether and to what extent credit is due.
Chalifoux v. Commissioner of Correction, 375 Mass. 424, 427-428
(1978), and cases cited. Where, as here, a defendant seeks
credit for unrelated crimes, there are two considerations in
play: first, a prisoner should not be required to serve "dead
time" on a vacated sentence for which he otherwise would not
receive credit, see Commonwealth v. Milton, 427 Mass. 18, 24
(1998); and second, a prisoner is prohibited from using "banked
time" from an earlier conviction toward a new conviction.
Manning v. Superintendent, Mass. Correctional Inst., Norfolk,
372 Mass. 387, 395-396 (1977) (Manning). In weighing these
equitable considerations, the banking prohibition outweighs any
concern about dead time: "[T]he need to prevent criminal
defendants from 'banking time' for use against future sentences
outweighs any fairness issues normally applicable in [dead time]
situations." Commonwealth v. Milton, supra at 25.

     The Appeals Court concluded that the prohibition against
banking was not implicated by the circumstances of this case and
that the denial of credit in these circumstances would be

     1
       One of the two predicate offenses for the defendant's 2003
convictions was another 1997 conviction of unlawful possession
of a controlled substance (class B) with intent to distribute.
His vacated 1997 conviction was not a predicate offense. Thus,
he could not avail himself of the vacated 1997 conviction (and
the time he had served on the sentence for that conviction) by
seeking resentencing on the 2003 convictions.
                                                                   3


contrary to the principles of fairness on which the dead time
cases are based. Commonwealth v. Holmes, 83 Mass. App. Ct. at
739. The court relied heavily on the fact that the defendant
did not have any knowledge that the 1997 conviction would be
vacated when he committed the new crimes that resulted in the
2003 convictions. Id. at 740-741 ("Banking turns on one factor:
commission of an offense with knowledge that a sentence
previously served has been judged improper"). In the Appeals
Court's view, where there were no concerns that the defendant
committed new crimes with the knowledge that he had banked time,
considerations of fairness required that he receive full credit
for the time served on his vacated conviction toward his
subsequent, unrelated sentences. Id. at 742-743.

     The defendant's position finds some support in this court's
discussion of banking time in the Manning case, where the
banking prohibition did not apply when the new crime was
committed before the earlier convictions were reversed:

    "[I]t is not our intention to grant prisoners license to
    commit future criminal acts with immunity. Indeed, the
    fear of authorizing 'a line of credit for future crimes,'
    . . . has troubled a number of courts. . . . Such concerns
    are not appropriate here. . . . Credit allowed when the
    subsequent conviction is for an offense committed before
    the reversal of the first sentence in no way permits credit
    for future criminal acts."

Manning, 372 Mass. at 395-396 (citations omitted). While the
defendant in the Manning case did not knowingly bank time before
committing a new crime, he did serve dead time on earlier,
related sentences.2 The court remedied the injustice of the

    2
       In Manning, the defendant was found guilty by a Norfolk
County jury of various charges for which he received concurrent
sentences. Manning v. Superintendent, Mass. Correctional Inst.,
Norfolk, 372 Mass. 387, 388-389 (1977). While he was serving
those sentences, he was convicted of an unrelated Suffolk County
charge for which he received a sentence to be served from and
after the Norfolk sentences. Id. at 389. While serving the
Norfolk sentences, his Norfolk convictions were reversed on
appeal. Id. The defendant remained incarcerated on the Suffolk
sentence and sought credit for the dead time that he had served
on his vacated convictions. Id. at 395. In Manning, unlike
this case, the sentences were related; the defendant received a
sentence on the Suffolk conviction to be served from and after
his Norfolk sentences, and a calculation of the start date for
                                                                   4


defendant having served dead time on these related sentences by
crediting that time toward the from-and-after sentence that he
received for his new crime. Id. at 396-397. In the present
case, the court considers circumstances that are similar in one
respect to the events in Manning, i.e., the defendant did not
have any prior knowledge that his earlier conviction would be
vacated before he committed his new crime, but distinguishable
in another very important respect, i.e., there was no
substantive or temporal connection between the earlier sentence
and new sentence.

      There may be circumstances in which a criminal defendant
could receive credit for time previously served on an unrelated
crime, but we do not find those circumstances here.3 Although we
acknowledge that the defendant will have served dead time on his
1997 sentence, we cannot allow him credit toward his 2003
convictions, especially where he completed serving his 1997
sentence before committing any new crimes. Credit for time
served on a vacated conviction cannot be applied against time to
be served on new and unrelated sentences in this fashion.
Manning, 372 Mass. at 395 n.9. Moreover, allowing credit would
undermine an essential purpose of the prohibition against
banking time, which is to prevent a defendant from effectively
receiving immunity for new crimes. See Commonwealth v. Milton,
427 Mass. at 25, citing Manning, supra at 395. It is true that
the defendant could not have known with any certainty that his
earlier conviction would be vacated before committing the new
crimes, but that does not change the fact that he would be
drawing on time banked from his earlier conviction, for which


the Suffolk sentence was therefore dependent on the completion
(or vacation) of his Norfolk sentences. Id. at 389. In those
circumstances, considerations of fairness required that the
defendant receive full credit for the dead time served on his
vacated convictions toward the consecutive sentence that he was
serving on his subsequent conviction. Id. at 396-397.
    3
       For example, we are not faced with circumstances where an
earlier conviction has been vacated on the ground of actual
innocence. The defendant successfully sought to withdraw his
guilty plea on the charge of unlawful possession of a controlled
substance (class B) with intent to distribute on the ground of
ineffective assistance of counsel. The criminal complaint was
eventually dismissed. We leave open the possibility of allowing
credit for time served on a completed sentence for an unrelated
crime where there is actual innocence or some other equally
compelling circumstance.
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his sentence had been fully served, and applying it toward his
new convictions.

     Allowing credit in these circumstances would encourage
defendants who previously have not filed motions for a new trial
on their prior convictions to file such motions after they have
already completed their sentences, solely in order to obtain a
credit to be applied against sentences for subsequently-
committed crimes. Only recidivists would benefit from such a
system. There also would be a foreseeable, yet unnecessary,
burden on the court system in having to adjudicate these
motions. And, in the event such a motion is granted, the
Commonwealth may feel obligated to pursue a new trial not for
the purpose of obtaining a conviction for the subject offense,
but solely for the purpose of preventing credits for unrelated
and completed sentences from being applied toward the subsequent
crimes. For these reasons, where, as here, a defendant has
fully completed his sentence on an unrelated conviction, the
need to prevent abuses associated with banking time outweighs
any concern about unfairness arising from dead time. See
Commonwealth v. Milton, 427 Mass. at 25.

     Conclusion. The defendant is not entitled to credit for
time served on his vacated 1997 conviction. Accordingly, we
affirm the Superior Court's order denying his motion for credit.

                                   So ordered.

     Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.
     Merritt Schnipper for the defendant.
