Commonwealth v. Carlos Bastos.

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

25-P-375

COMMONWEALTH

vs.

CARLOS BASTOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from a Hampden Superior Court

judge's allowance of the defendant's motion awarding him jail

credit, arguing that the judge abused his discretion because the

defendant's original sentence was lawfully imposed and that

there was no basis to disturb the sentence. Discerning no abuse

of discretion or other error, we affirm.

Background. The defendant committed related crimes in two

counties. In Hampden County, he gave another person a firearm

that was used to kill the victim, James Rosario. After the

shooting, the defendant fled to Plymouth County where he was

ultimately arrested and found in possession of ammunition with

the murder weapon nearby.
Charges in both counties quickly followed. The police

arrested the defendant on July 15, 2011, and he was arraigned on

offenses related to possession of the firearm in the Brockton

Division of the District Court Department (Plymouth case). He

remained in custody awaiting trial. On September 23, 2011, the

defendant was arraigned in the Springfield Division of the

District Court Department on murder and firearm charges (Hampden

case) and held without bail.

Both cases moved to the Superior Court following

indictments in the respective counties. On September 3, 2013,

the defendant was convicted on the Plymouth case, and a judge

(Plymouth judge) sentenced him to a State prison term of from

ten years to ten years and one day. The defendant received 777

days of jail credit on the Plymouth case for time spent in

custody.1

On October 30, 2013, the defendant pleaded guilty to a

reduced charge of voluntary manslaughter and to two of the

firearm charges (carrying a firearm without a license and

unlawful possession of ammunition) in the Hampden case. The

judge (sentencing judge) imposed a State prison sentence of from

twelve to fifteen years on the manslaughter charge, to run

1 As the motion judge noted, the correct jail credit award
on the Plymouth case should have been 781 days, equal to the
number of days between July 15, 2011, and September 3, 2013.

2
concurrent with the Plymouth case sentence. The sentencing

judge also imposed a State prison sentence of from four to five

years on the carrying a firearm without a license charge and a

one-year sentence in the house of correction on the possession

of ammunition charge, both to run concurrently with the sentence

on the voluntary manslaughter charge. At the time of the

Hampden County plea, the defendant asked the sentencing judge to

run the sentence on the manslaughter charge nunc pro tunc to the

date of his arrest in the Plymouth case. The sentencing judge

asked about the amount of jail credit to which the defendant was

entitled. The Commonwealth stated that it would not agree to

the defendant receiving credit on the Hampden case if he

received credit on the Plymouth case. The sentencing judge

stated that the defendant would receive "whatever credit he is

entitled to for this case" and denied the defendant's request

that the sentence be nunc pro tunc. The defendant did not

receive any credit for time served on the Hampden case.

On September 20, 2023, this court vacated the defendant's

sentence on the Plymouth case after concluding that one of the

two prior convictions did not qualify as a sentencing

enhancement under the Massachusetts armed career criminal act,

G. L. c. 269, § 10G (b). See Commonwealth v. Bastos, 103 Mass.

App. Ct. 376, 377-381 (2023). On March 15, 2024, the Plymouth

judge held a resentencing hearing and resentenced the defendant

3
to a State prison term of from three years to three years and

one day. The Plymouth judge denied the defendant's request that

the judge impose the sentence nunc pro tunc to September 3,

2013, the date of the defendant's original sentencing, without

any jail credit for time spent in pretrial custody. The

Commonwealth objected to this proposal, and the Plymouth judge,

citing a belief that he lacked discretion to change the award of

jail credit on remand, denied the defendant's request and

awarded him 777 days of jail credit. On April 24, 2024, the

defendant filed a motion to reconsider, asking the Plymouth

judge to reconsider his decision denying his request to not

award jail credit toward his new sentence. On October 1, 2024,

the Plymouth judge allowed the defendant's motion to reconsider

and vacated the award of jail credit so that the jail credit

could "potentially be awarded on the Hampden Court Case."

On October 17, 2024, the defendant filed a motion in the

Hampden Superior Court seeking 839 days of jail credit. On

February 10, 2025, a judge in the Hampden Superior Court (motion

judge) held a nonevidentiary hearing on the defendant's motion

and entered an order and decision on February 11, 2025, awarding

711 days of jail credit on the Hampden case.2 The Commonwealth

now appeals from that order.

2 On appeal, the defendant does not challenge that decision.

4
Discussion. "[General Laws] c. 279, § 33A, requires a

sentencing judge to give a defendant credit for time served in

jail before sentencing while awaiting trial and during trial."

Commonwealth v. Carter, 10 Mass. App. Ct. 618, 619 (1980).3 "The

governing principle in the application of G. L. c. 279, § 33A,

. . . is fair treatment of the prisoner." Commonwealth v.

Blaikie, 21 Mass. App. Ct. 956, 957 (1986). "Fairness is the

basic touchstone, and is the appropriate measure in determining

whether and to what extent credit for time spent in custody

shall be given." Commonwealth v. Ridge, 470 Mass. 1024, 1024

(2015).

The Commonwealth initially argues that the motion judge had

no authority to award the defendant jail credit where there was

no express basis under the Massachusetts Rules of Criminal

Procedure to disturb the sentencing judge's original sentence.

In making this argument, the Commonwealth identifies Mass. R.

Crim. P. 29 (a), as appearing in 489 Mass. 1503 (2022); 30 (a),

as appearing in 435 Mass. 1501 (2001); and 42, 378 Mass. 919

(1979); as the only viable procedural mechanisms available to

the defendant for requesting application of jail credit. We

disagree.

3 A companion statute, G. L. c. 127, § 129B, contains
similar provisions addressed to the Commissioner of Correction.
Commonwealth v. Grant, 366 Mass. 272, 274 (1974).

5
Our courts have routinely heard motions for jail credit on

the merits without referencing the rules cited by the

Commonwealth. See, e.g., Commonwealth v. Caliz, 486 Mass. 888,

890-891 (2021); Commonwealth v. Schmitt, 98 Mass. App. Ct. 403,

403-408 (2020); Commonwealth v. Barton, 74 Mass. App. Ct. 912,

912-913 (2009). This is true even where the impetus for the

motion was the vacatur of an unrelated sentence rather than an

allegation of error or injustice in the original sentence. See,

e.g., Caliz, supra at 890; Commonwealth v. Holmes, 469 Mass.

1010, 1010-1011 (2014). It is apparent that we do not impose

such a narrow procedural framework on motions for jail credit as

the Commonwealth proposes. See Commonwealth v. Maldonado, 64

Mass. App. Ct. 250, 251 (2005), quoting Manning v.

Superintendent, Mass. Correctional Inst., Norfolk, 372 Mass.

387, 394 (1977) ("We reject 'an overly legalistic approach'

toward jail credit matters . . .").

This case presents a unique situation, but we are guided by

well-settled rules of fair treatment for a defendant who has

been charged with related crimes spanning two counties. Once

the Plymouth judge vacated the jail credit on the Plymouth case,

the defendant's jail credit was unallocated.4 The motion judge

4 Although the Commonwealth contends that the Plymouth judge
erroneously vacated the defendant's jail credit, we express no
opinion on that issue. Because that case is not before us, our

6
reviewed the Hampden plea transcript and found that it

"reveal[ed] a clear intent by the sentencing judge . . . that

the defendant receive credit that he was entitled to 'for this

case.'" The motion judge reasonably inferred that "the

[sentencing] judge did not intend to deny the defendant credit

entirely for the Hampden case if he had not taken the credit in

the Plymouth case."

Given the circumstances of the Plymouth vacatur and the

presently unallocated jail credit, the motion judge determined

that the defendant was entitled to the 711 days for which the

defendant was simultaneously held on both cases prior to the

commencement of the Plymouth case sentence. In doing so, the

motion judge awarded the defendant so much of the requested

credit as was consistent with the express intentions of the

sentencing judge. We conclude that the motion judge did not

abuse his discretion or err. We also agree with the motion

judge that we are not presented with a case of a defendant

improperly "banking" time in custody. See Commonwealth v.

Milton, 427 Mass. 18, 19 (1998) ("defendant is not entitled to

receive credit for time he served awaiting trial on a prior,

wholly unrelated charge").

review is limited to the motion judge's decision in the Hampden
case.

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The Commonwealth advances in essence two arguments that the

defendant was not entitled to the credit on the Hampden sentence

based on considerations of fairness. Neither argument is

persuasive.

First, the Commonwealth argues that the Plymouth judge's

order denying credit was improper and that the unallocated

credit "was a problem of [the defendant's] own making" from

which the defendant should not be permitted to benefit. The

Commonwealth contends that to hold otherwise unfairly allows the

defendant to restructure a lawfully imposed sentencing scheme

and seek credit on a subsequent higher sentence. If the

Commonwealth disagreed with the legality of the Plymouth judge's

order denying credit, its remedy was to file an appeal from the

order in the Plymouth case. Nothing in the record demonstrates

that the Commonwealth appealed from the Plymouth order, and it

is not before us. Our review is therefore limited to the

decision of the motion judge in the Hampden case and not of the

Plymouth judge. In assessing whether there was a special

consideration of fairness to support the defendant's motion for

jail credit, the motion judge did not err by accepting that

8
there was unallocated credit without questioning the propriety

of how the credit became unallocated.5

Second, the Commonwealth attempts to undercut the

defendant's argument that fairness favors granting him the

benefit of the unallocated credit, citing to Ridge and Barton.

See Ridge, 470 Mass. at 1025 (holding motion judge was not

obligated to grant defendant's request for credit on agreed-on

sentence for which defendant had "received what he bargained

for," since "fundamental fairness does not require more");

Barton, 74 Mass. App. Ct. at 915 (explaining that after first

sentencing judge credited first county sentence with time that

"is wholly inclusive of the period the defendant claims as

credit on the [later-imposed second county] sentence . . . ,

there is no special consideration of fairness that supports the

credit that the defendant seeks"). However, Ridge and Barton

are distinguishable from this case. First, neither of those

cases involved vacatur of the first county sentence. See

generally Commonwealth v. Sallop, 472 Mass. 568, 570-572 (2015)

(recognizing resentencing judge's discretion following vacating

sentence). Second, neither of the motion judges in those cases

5 The Plymouth case was not before the Hampden motion judge,
and the Hampden judge was not in a position to evaluate the
propriety of the Plymouth judge's order that led to the
unallocated credit.

9
were confronted with unallocated jail credit. We conclude that

the circumstances here, involving the defendant's commission of

a crime in Hampden County and flight with the murder weapon into

Plymouth County, do implicate special considerations of fairness

that were not present in Barton or Ridge, and the motion judge

did not abuse his discretion or otherwise err by allowing the

motion for jail credit.

Order entered on February 11,
2025, allowing defendant's
motion for jail credit
affirmed.

By the Court (Hand, Hodgens &
Tan, JJ.6),

Clerk

Entered: January 22, 2026.

6 The panelists are listed in order of seniority.

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