Darrien Goetzendanner was at liberty on parole from concurrent, twenty-year reformatory sentences
Goetzendanner claims that applicable law dictates that he first complete his intervening sentences before serving the remainder of his reformatory sentences.
We agree with the department that Goetzendanner’s sentences are not illegal, that they were not illegally imposed by the trial judge, and that Goetzendanner is not entitled to immediate release. That does not, however, end the inquiry. As the motion judge deciding the petition for writ of habeas corpus noted (albeit without deciding the controversy on this ground), Goetzendanner’s reformatory sentences were “improperly executed” when the department calculated these sentences as having been served prior to the intervening sentences. We treat the denial of Goetzendanner’s petition as a denial of his request for declara
Background. Goetzendanner’s reformatory sentences were imposed on February 18, 1983. On that date, he was convicted of armed assault with intent to rob or murder (and other offenses) and ordered to serve concurrent sentences, the longest of which was twenty years. Goetzendanner commenced serving the concurrent reformatory sentences and, as is relevant to this appeal, was released on parole from his reformatory sentences on June 11, 1991.
The department, taking the position that the “effective” date of return of the parole violation warrant was February 5, 1993 (the date Goetzendanner was convicted and received the intervening sentences), treated Goetzendanner as a returned parole violator with new sentences to be served after completion of the reformatory sentences.
Goetzendanner claims that he “cannot be compelled to do his time on the intervening sentence from and after his parole sentence unless the parole violation warrant has been served prior to imposition of the intervening sentence,” citing 120 Code Mass. Regs. § 303.16(2)(b)(2) (1997).
Responding, the department cites 120 Code Mass. Regs. § 303.16(2)(a), for the proposition that “[a]ny person [sz'c] authorized to serve civil or criminal process may serve a parole warrant,”
For reasons we shall discuss, we conclude that Goetzendanner’s claim is appropriately construed as one for declaratory judgment regarding the controversy between the parties: whether the department correctly carried out Goetzendanner’s sentences.
Discussion. 1. Denial of habeas corpus relief. We begin our
“An ‘illegal sentence’ is one that is in excess of the punishment prescribed by the relevant statutory provision or in some way contrary to the applicable statute,” Commonwealth v. Layne, 21 Mass. App. Ct. 17, 19 (1985), or one that is “premised on a major misunderstanding by the sentencing judge as to the legal bounds of his authority,” Commonwealth v. McGuinness, 421 Mass. 472, 475 (1995). The sentences imposed in 1993 and 1983 were within the scope of permissible sentences under statutes applicable to Goetzendanner’s convictions and are not illegal.
Nor were the sentences illegally imposed. An illegally imposed sentence is one in which the sentencing judge employs an erroneous or incorrect procedure when imposing the sentence. See Commonwealth v. Layne, 21 Mass. App. Ct. at 20; Reporters’ Notes to Mass.R.Crim.P. 30, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1610 (LexisNexis 2007). Contrast Commonwealth v. White, 436 Mass. 340, 345 (2002), quoting from Commonwealth v. McGuinness, 421 Mass. at 475 (illegal sentence resulted from resentencing judge’s “major misunderstanding” that she lacked authority to consider good conduct information); Robinson v. United States, 313 F.2d 817, 820-821 (7th Cir. 1963) (judge imposed maximum sentence under erroneous belief that petitioner would be eligible for parole, where statute precluded parole release); United States v. Lewis, 392 F.2d 440, 444 (4th Cir. 1968) (sentencing judge erroneously believed he was obligated to impose maximum sentence). The judge’s actions here did not result from any major misunderstanding as to his authority, nor did they exceed the legal bounds of his authority.
As we shall discuss, the sentences — while not illegal or il
However, because there is a controversy between Goetzendanner and prison authorities regarding the proper execution of his unexpired and intervening sentences, “the court may properly treat his petition as a claim for declaratory relief.” Hamm v. Commissioner of Correction, 29 Mass. App. Ct. 1011, 1011 n.3 (1991).
2. Declaration as to proper execution of sentences. Whether Goetzendanner’s two sets of sentences were improperly executed depends on the application of G. L. c. 127, § 149, regarding when service of the parole violation warrant is effective. Section 149, as appearing in St. 1986, c. 327, provides, in relevant part:
“Service of the parole violation warrant shall be made effective forthwith upon arrest and imprisonment of the parole violator unless he is convicted of commission of a crime or found guilty of violating the conditions of federal or another state’s parole or probation, then service of said parole violation warrant shall not be effective until the expiration of any additional sentences by parole or otherwise. ...”
Because Goetzendanner was convicted of crimes while on parole, service of the parole violation warrant issued by the parole board on March 31, 1992, was not “made effective forthwith upon arrest and imprisonment of the parole violator”; rather, in these circumstances, “service of said parole violation warrant shall not be effective until the expiration of any additional sentences by parole or otherwise.” Ibid. We have said, with respect to this legislation, that “the Legislature intended that service of the unexpired sentence of one on parole when sentenced for another crime was not to begin to run until the expiration of the term of the second sentence.” Costa v. Commission of Correction, 56 Mass. App. Ct. 42, 45 (2002), quoting from Harding v. State Bd. of Parole, 307 Mass 217, 220 (1940).
The trial judge’s order that the intervening sentences were “to be served from and after the exp[i]ration of all previous sentences which Goetzendanner has been ordered to serve” was not an order that required the intervening sentences to be served after Goetzendanner had completed his reformatory sentences. That order provides merely that the intervening sentences were to be served in addition to, and not concurrent with, his previously ordered reformatory sentences.
The execution of Goetzendanner’s sentences, that is, the order in which he serves the reformatory and intervening sentences, is controlled by G. L. c. 127, § 149. We reject the notion advanced by the department that the trial judge’s sentencing order effected a constructive service of the parole violation warrant that required that Goetzendanner first complete the balance of his reformatory sentences before the department could invoke the intervening sentences.
We conclude as follows: the department improperly executed Goetzendanner’s sentences when it required Goetzendanner first to serve the four years remaining on his reformatory sentences and, on February 1, 1997, discharged him of those sentences, prior to invoking his intervening sentences.
The judgment is vacated and the case remanded to Superior Court for entry of a modified judgment which construes the writ of habeas corpus as a claim for declaratory relief and declares that Goetzendanner began serving his 1993 intervening sentences on February 5, 1993, with 320 days of credit, and that the remaining time on his reformatory sentences will not commence until the expiration by parole or otherwise of his intervening sentences.
So ordered.
Reformatory sentences, repealed in 1994 by St. 1993, c. 432, §§ 17-19, were “claimed to be based on a policy of early parole eligibility and rehabilitation.” Commonwealth v. Hayes, 372 Mass. 505, 510 (1977). See Commonwealth v. Brown, 47 Mass. App. Ct. 616, 620 (1999), S.C., 431 Mass. 772 (2000).
Any sentence for a crime committed while the petitioner is on parole, that is imposed prior to service of the parole violation warrant, is an intervening sentence. See 120 Code Mass. Regs. § 303.16(2)(b)(l) (1997).
The parties are in agreement that, in the circumstances of this case, the manner in which the sentences are executed makes a difference to Goetzendanner in that his parole eligibility date is four years sooner if we decide that he first serves his intervening sentence. This is because, by having executed the sentences such that Goetzendanner served the four years remaining on his reformatory sentences (and was not paroled from those sentences), his parole eligibility date in connection with the intervening sentences is calculated from the date he wrapped up the reformatory sentences; according to the department, he does not become eligible for parole until September 7, 2008. If parole eligibility is now calculated based on the intervening sentences having commenced on February 5, 1993, Goetzendanner’s parole eligibility for the intervening sentences — as well as the reformatory sentences — will be calculated as having occurred four years earlier (according to the department, this “would have been in 2004”).
Goetzendanner had also been paroled several times between 1985 and 1991, but parole was revoked following each of those releases.
With respect to the first indictment for aggravated rape, the judge sentenced Goetzendanner to the Massachusetts Correctional Institution, Cedar Junction (MCI-Cedar Junction), “for not less than twenty years and not more than thirty years. You will receive credit for any time spent in confinement awaiting disposition of this case. This sentence is to be served from and after the expiration of all previous sentences which you have been ordered to serve.”
As to the next three indictments on which Goetzendanner was convicted, the judge gave sentences of from twenty to thirty years, from eight to ten years, and from three to five years; each of these was ordered to “be served concurrently with each other” and concurrently with the sentence imposed on the first indictment.
On the face of the printed parole violation warrant in the space below the
The department’s supplemental record appendix includes an affidavit from Stephanie Weimar stating that she is a parole officer employed by the Massachusetts Parole Board and that “[i]n order to carry out the clearly expressed intention of the sentencing court that the [intervening] sentence ... be served ‘from and after’ all previously imposed sentences, shortly after Goetzendanner’s arrival at MCI-Cedar Junction on February 5, 1993,1 made a return on the parole violation warrant and entered the effective date of return on the warrant as ‘2-5-93’ and initialed that date.”
Title 120 Code Mass. Regs. § 303.16(2)(a) (1997) actually states, “Any officer authorized to serve civil or criminal process may serve a parole warrant.”
The department argues that Goetzendanner’s claim “concerns execution of a parole violation warrant” and is thus directed at the parole board or its employee, a nonparty to this action. The “execution of a parole violation warrant” appears to be a reference to the affidavit of parole officer Stephanie Weimar, described at note 7, supra. The department (correctly in our view) does not advance the claim that the purported service of the parole violation warrant by Weimar constituted an effective, retroactive service of the warrant as of February 5, 1993.
Because his sentences were neither illegal nor illegally imposed, postconviction relief pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), and Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), is not available to Goetzendanner. See Commonwealth v. Layne, supra at 19-20.
We note that in Goetzendanner’s first motion for new trial pursuant to rule 30(b), he also alleged, inter alia, that he was unlawfully sentenced for his 1993 convictions. In a memorandum of decision, the motion judge (who was
We reject Goetzendanner’s claim that he is entitled to immediate release because his due process rights were violated by the following: (1) the prosecutor’s alleged silence as to his parole status that, according to Goetzendanner, was “equivalent to providing misinformation that formed the foundation of the judge’s sentence”; and (2) defense counsel’s alleged failure to alert the trial judge that Goetzendanner was not serving the parole sentence. Neither the record nor the cases cited by Goetzendanner, Townsend v. Burke, 334 U.S. 736, 740-741 (1948), and Commonwealth v. LeBlanc, 370 Mass. 217, 221 (1976), support his claim.
Goetzendanner also contends that he must be immediately released because the judge “usurped” the executive authority of the parole board by imposing a “from and after” sentence, violating art. 30 of the Massachusetts Declaration of Rights. The parole board is not a party to this action. In any case, although the intervening sentence was incorrectly executed, imposition of that sentence was a proper judicial function. Cf. Brach v. Chief Justice of the Dist. Ct. Dept., 386 Mass. 528, 538 (1982).
In Hamm v. Commissioner of Correction, supra, the petitioner appealed
Once the parole violation warrant issued on March 31, 1992, Goetzendanner ceased serving time on his paroled reformatory sentence and the time spent awaiting trial for the new charges was credited toward his 1993 intervening sentence. Watts v. Commissioner of Correction, 42 Mass. App. Ct. 951, 952-953 & n.2 (1997), citing G. L. c. 127, § 149.
As Goetzendanner points out, applicable regulations provide that he “cannot be compelled to do his time on the intervening sentence from and after his parole sentence unless the parole violation warrant has been served prior to imposition of the intervening sentence,” citing 120 Code Mass. Regs. § 303.16(2)(b)(2). We do not address the circumstance in which service of such a warrant is made upon a petitioner while he is free on bail and prior to imposition of any intervening sentence.
This is also apparent from the context in which the judge issued his oral orders during the February 5, 1993, sentencing hearing. Goetzendanner’s counsel informed the judge prior to sentencing that he had information that Goetzendanner was “facing five years still remaining to be served on a parole violation.” In connection with the imposition of the sentence on the first indictment for aggravated rape, the judge stated: “You will receive credit for any time spent in confinement awaiting disposition of this case.” This reflects the judge’s correct interpretation of the application of G. L. c. 127, § 149, to the facts of this case. Because Goetzendanner was, at the time of sentencing, being held on bail in connection with the intervening sentences, the time awaiting trial was to be credited to reduction of the intervening sentences. See note 13, supra.
This would have been tantamount to a finding of a violation of parole in the absence of such a finding by the parole board.