No. 99-1249-DCommonwealth of Massachusetts Superior Court CIVIL ACTION MIDDLESEX, SS.
May 3, 1999
MEMORANDUM AND ORDER ON PLAINTIFF’S PETITION FOR A WRIT OF HABEAS CORPUS
BRASSARD, JUSTICE.
Plaintiff, Edwin Montalvo (“Montalvo”), is currently under the custody of the Massachusetts Department of Correction (“DOC”). Montalvo is being held at the Massachusetts Correctional Institution, Shirley (“MCI-Shirley”). Montalvo has filed a petition for a writ of habeas corpus alleging that he has been held past his date of release by the respondent, Peter Pepe (“Pepe”), the superintendent of MCI-Shirley. Pepe has filed a return and opposition to the petition for a writ of habeas corpus. For the reasons stated below, Montalvo’s petition is ALLOWED.
BACKGROUND[1]
On September 9, 1992, Montalvo was sentenced by the Worcester Superior Court to a sentence of 5 to 7 years for being an accessory after the fact and a 3 to 7 year sentence from and after the first sentence for two counts of accessory after the fact. These sentences were combined for purposes of determining parole eligibility and discharge date into an aggregate sentence of 8 to 14 years. See Henschel v. Commissioner of Correction, 368 Mass. 130, 134-36 (1975). Montalvo received 341 days of jail credit which resulted in an effective date of sentence of October 4, 1991. The original maximum term of his sentences, therefore, is October 3, 2005.
On April 4, 1995, Montalvo was paroled. His parole was revoked on April 1, 1996 and he was returned to custody on May 24, 1996. He has remained in custody since that date. Montalvo was on parole for 363 days. The 52 days dead time in between the date his parole was revoked and the date he was returned extended his maximum term of sentence from October 3, 2005 to November 24, 2005.
DISCUSSION
The court may grant a petition for habeas corpus only where the petitioner shows that he is entitled to immediate release from imprisonment. Averett, petitioner, 404 Mass. 28, 32 (1989); Pina v. Superintendent, M.C.I. Walpole, 376 Mass. 659, 664-65
(1978). The petitioner bears the burden of making clear the legal basis for his liberty. If he fails to make this showing, the petition must be dismissed. Stewart, petitioner, 411 Mass. 566, 569 (1992).
According to the affidavit of Ms. Bettencourt, Montalvo’s release date is calculated as follows: Montalvo received 525 days of retrospective statutory good time credit for the period of time (October 4, 1991 to April 4, 1995) he spent incarcerated prior to his release on parole; he receives 1, 425 days of prospective statutory good time credit for the 9 years and 6 months between his parole return on May 24, 1996 and his revised maximum date of November 24, 2005; this results in a total of 1, 950 days of combined statutory good time which is deducted from the revised maximum date of November 24, 2005 resulting in a revised good conduct discharge date of July 23, 2000; having served 363 days on parole, Montalvo is entitled to 213 days of credit for the time served while on parole on both sentences pursuant to Crooker v. Chairman, Mass. Parole Board, 38 Mass. App. Ct. 915 (1995); this “Crooker credit” is deducted from the revised good conduct date which includes statutory good time attributed to his consecutive sentence; the 150 days of statutory good time that he would have earned had he been incarcerated for 363 days must be deducted, resulting in the 213 days of credit; as of March 30, 1999, Montalvo has been awarded 162.5 days of earned good time; this time is combined with the “Crooker credit” for a total of 375.5 days; this total is subtracted from the revised good conduct date of July 23, 2000, resulting in an adjusted good conduct date of July 13, 1999.
This Court grants the petition for two reasons, each of which provides a sufficient basis for its allowance. First, the 150 days of statutory good time should not have been deducted from the 363 days Montalvo served on parole because the DOC calculations set forth above did not credit Montalvo with statutory good time while he was on parole. The DOC calculations only credited Montalvo for statutory good time while he was incarcerated. Accordingly, because Montalvo is entitled to 363 days of credit while he was on parole, not 213, Montalvo is entitled to immediate release from custody. Secondly, pursuant to G.L.c. 279, § 8A, Montalvo’s on and after sentence took effect when he was released on parole. Montalvo was entitled to “day-for-day credit against both his sentences during the time he spent on parole.” Crooker, supra at 916. The DOC calculations set forth above did not credit Montalvo for both sentences. For this reason as well, Montalvo is entitled to immediate release from custody.
ORDER
For the foregoing reasons, it is hereby ORDERED that Montalvo’s petition for a writ of habeas corpus is ALLOWED.
_____________________________ Raymond J. Brassard Justice of the Superior Court
Dated: May 3, 1999