Commonwealth v. Barry L. Thomas, Jr.

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

23-P-1442

COMMONWEALTH

vs.

BARRY L. THOMAS, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Allowing a defendant's motion to revise and revoke his

sentence, a District Court judge ordered that the defendant be

credited for 365 days and his sentence be deemed served. The

Commonwealth appeals and argues that the sentencing judge

erroneously included jail credit on an unrelated case. We

affirm.

Sentence. The defendant's sentence stems from a complaint

that issued from the Brockton District Court on July 3, 2020.

The complaint charged the defendant with failure to stop (G. L.

c. 90, § 25) and operating a motor vehicle with a suspended

license (subsequent offense) (G. L. c. 90, § 23). Following

arraignment, the defendant was released on personal recognizance
until his bail was revoked for fifty-one days. On December 19,

2022, the prosecution dismissed the failure to stop charge, and

the remaining charge was continued without a finding for six

months of administrative probation. Following a violation of

probation, the probation period was extended for an additional

six months. The defendant violated his probation once again,

and the defendant remained in custody awaiting a hearing for an

additional forty-two days (bringing the total days in custody to

ninety-three). On September 25, 2023, the sentencing judge

entered a guilty finding and sentenced the defendant "without

prejudice" to the maximum of one year in the house of

correction. In doing so, the judge awarded seventy-one days of

credit and acknowledged that the defendant may have additional

sentence credit, but he did not want to calculate the exact

credit "on the fly" and encouraged counsel to file a motion (the

docket reflected ninety-three days of credit).

Revised sentence. Days later, on October 3, 2023, the

defendant filed a motion to revise or revoke the sentence. He

sought credit for time he was held in custody awaiting trial on

an unrelated case in the Stoughton District Court where he was

previously sentenced following a guilty plea on March 6, 2023.

Defense counsel's affidavit, however, acknowledged that the

defendant received full credit of 244 days on the Stoughton

sentence for the time held awaiting trial in that case. At the

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October 27, 2023 hearing on the defendant's motion, the judge

discussed his intent to structure the sentence and credit so

that the defendant would be released fifty days after the date

of the hearing (on November 22). He was concerned that the jail

might misinterpret the sentence: "I just want to make sure he

gets credit for having already served the time so that it

doesn't appear as a new sentence of 50 days; do you know what I

mean?" See G. L. c. 90, § 23 (sentence of sixty days to one

year for subsequent offense of operation after suspension). In

an effort to structure a sentence resulting in the defendant's

release fifty days from the hearing, the judge allowed the

motion to revise and revoke, ultimately giving the defendant

credit for 315 days on his 365 day sentence. These credits

included the defendant's time held in custody before sentencing

in the unrelated Stoughton case.

Reconsideration. On October 30, 2023, the Commonwealth

filed a motion for reconsideration and reported that the house

of correction calculated only ninety-three days of available

credit on the defendant's sentence. That same day, the

sentencing judge denied the motion without a hearing. The next

day, the Commonwealth filed a notice of appeal and an emergency

motion for reconsideration and motion to stay the defendant's

release from custody. A different judge allowed the

Commonwealth's motion to stay. In the meantime, the defendant

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filed another motion to revise and revoke with a different

calculation for sentence credit. On November 20, 2023, the

sentencing judge held a hearing, awarded the defendant 365 days

credit, and concluded that the defendant's sentence "is deemed

served and completed."

Discussion. Within sixty days of sentencing, a judge may

revise or revoke a sentence upon motion of the defendant "if it

appears that justice may not have been done." Mass. R. Crim. P.

29 (a) (2), as appearing in 378 Mass. 899 (1979). The purpose

of the rule is to allow a judge to reconsider a sentence to

"determine, in light of the facts as they existed at the time of

sentencing, whether the sentence was just." Commonwealth v.

McCulloch, 450 Mass. 483, 487 (2008), quoting Commonwealth v.

DeJesus, 440 Mass. 147, 152 (2003). Occasions will inevitably

occur where a conscientious judge, upon reflection, will

conclude that the sentence was "too harsh" or "failed to give

due weight to mitigating factors." District Attorney for the N.

Dist. v. Superior Court, 342 Mass. 119, 128 (1961). "In such

cases the interests of justice and sound judicial administration

will be served by permitting the trial judge to reduce the

sentence within a reasonable time." Id.

Here, on September 25, the judge initially imposed a one-

year sentence, acknowledged that he was imposing the maximum,

and invited the defendant to file a motion to revise or revoke

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due to a question about potentially substantial sentence credit.

At the hearing on the defendant's subsequently filed motion to

revise and revoke on October 27, the judge indicated his intent

to impose a sentence that included 315 days credit, which would

result in the defendant's release in fifty days from the date of

the hearing (November 22). By applying 315 days of credit, the

judge erred because the credit well exceeded the 125 days the

defendant had actually served in this case as of October 27.

"[A] prisoner is to receive credit for all jail time -- neither

more nor less -- served before sentencing which relates to the

criminal episode for which the prisoner is sentenced, but does

not receive credit greater than the number of days of his

presentencing confinement." Commonwealth v. Carter, 10 Mass.

App. Ct. 618, 620-621 (1980).

To the extent the judge also applied credit from time

served by the defendant under the prior and completed and

unrelated Stoughton sentence, he could not do so in these

circumstances. The defendant could only receive credit for jail

time served in this case, regardless of jail time he may have

served in another case pre-trial. Put differently, where the

defendant had only served 125 days in this case, that was the

maximum jail credit the judge could award as of the October 27

hearing. Also, by the time of his Brockton sentence, the

defendant had completed a "sentence for an unrelated crime of

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which he had been convicted. The statutory purpose [of G. L.

c. 279, § 33A] was not to allow deductions for time served under

sentence for another crime, but was to afford relief to those

not convicted and not serving any sentence but who because of

inability to obtain bail, for example, were held in custody

awaiting trial." Commonwealth v. Foley, 15 Mass. App. Ct. 965,

965 (1983), quoting Needel, petitioner, 344 Mass. 260, 262

(1962). Contrast Commonwealth v. Ridge, 470 Mass. 1024, 1025

(2015) (where credit awarded on prior concurrent sentence is

"illusory," judge has discretion to award credit on longer

subsequent sentence in consideration of fairness).

We do not believe resentencing is necessary where the

record demonstrates that the judge, in substance, ultimately

revised the sentence once again on November 20. During a

hearing on that date, the judge expressed his intent to release

the defendant days earlier than he previously planned, adopted

the defense recommendation, and deemed the defendant's sentence

"served and completed" as of that date. Contrast Commonwealth

v. Henriquez, 440 Mass. 1015, 1016 (2003) (resentencing required

where judge's ambiguous remarks created "sufficient concern

about the appearance of justice"). The judge had broad

discretion, within the sentencing range of G. L. c. 90, § 23,

and the parameters of rule 29, to revise the sentence on

November 20 and to release the defendant who by then had served

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149 days, and we discern no error in that ultimate decision.

See Commonwealth v. White, 436 Mass. 340, 343 (2002) (sentencing

"judges are permitted considerable latitude").

Order of November 20, 2023,
revising sentence affirmed.

By the Court (Englander,
Hodgens & Smyth, JJ.1),

Clerk

Entered: May 29, 2025.

1 The panelists are listed in order of seniority.

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