40 Mass. App. Ct. 933

May 9, 1996

Matthew S. Robinowitz for the plaintiff.

William D. Saltzman for the defendant.

After being convicted of trafficking in violation of G. L. c. 94C, s. 32E(b)(1), and possession with intent to distribute in contravention of G. L. c. 94C, s. 32A(a), the petitioner received two consecutive sentences of from three years to three years and one day on each conviction, with the trafficking sentence to be served first. The petitioner's trafficking sentence pursuant to G. L. c. 94C, s. 32E(b)(1), carries a mandatory minimum three year term. [Note 1] The petitioner appeals the denial of his petition for a writ of habeas corpus, [Note 2] asserting that statutory good time deductions under G. L. c. 127, s. 129, which accumulated during his incarceration on the trafficking sentence, should be aggregated with those of his from and after sentence for determining his good time release date [Note 3] Thus, we are asked to decide whether a sentence with a mandatory minimum term may be aggregated with a consecutive sentence for the purposes of determining statutory good time pursuant to G. L. c. 127, s. 129. We answer the question in the affirmative, but affirm the judgment below.

Prior to its amendment in 1989, G. L. c. 94C, s. 32H, precluded individuals convicted of certain drug offenses from being "eligible for probation, parole, furlough, or work release" until they had served the mandatory minimum term of imprisonment established by the applicable sentencing statute. In Rodriguez v. Superintendent, Northeastern Correctional Center, 24 Mass. App. Ct. 481 (1987), we held that s. 32H did not prohibit the application of statutory good time pursuant to G. L. c. 127, s. 129, even where such deductions allowed a prisoner to be discharged before serving the mandatory minimum term of imprisonment. Id. at 485. In comparing other statutes, we noted that "when the Legislature has intended to restrict the application of such deductions it has done so in an explicit manner." Id. at

Page 934

484. Since s. 32H did not specifically exclude the application of good conduct deductions to mandatory minimum sentences, we resolved any existing ambiguity strictly against the Commonwealth. Id. at 484-485.

In the wake of Rodriguez, the Legislature amended G. L. c. 94C, s. 32H. See St. 1989, c. 415. It explicitly prohibited the receipt of any deduction for good conduct under G. L. c. 127, s. 129, during the three year mandatory minimum established by G. L. c. 94C, s. 32E. [Note 4] Compare Lydon v. Sheriff of Plymouth County, 393 Mass. 1002 , 1002-1003 (1984) (interpreting firearm statute so as to preclude accumulation of earned good time credit pursuant to G. L. c. 127, s. 129D, during mandatory minimum term); Commonwealth v. Haley, 23 Mass. App. Ct. 10 , 17 (1986) (interpreting G. L. c. 90, s. 24G(a), as a general statement of a desired result with a list of forbidden ways to stymie that result).

Nothing in Difario v. Commissioner of Correction, 371 Mass. 545 (1976), indicates a contrary result. Rather, the consecutive sentences are to be aggregated for purposes of determining the rate of reduction and a single termination date. See id. at 551-552. However, the prisoner does not receive good conduct deductions for the period during which he serves his mandatory minimum. See G. L. c. 94C, s.s. 32E and 32H. In the instant case, the prisoner does not begin to accrue good time deductions on his initial sentence until after he has served his three year mandatory minimum. Thus, he is eligible for good time deductions on the remaining one day of his initial sentence and on the three years and one day of his consecutive nonmandatory sentence.

The petitioner also challenges the calculation of his discharge date on equal protection grounds. He claims that he is treated differently than prisoners serving a single sentence with a three-year mandatory minimum. Because the petitioner is not similarly situated, we find no equal protection violation.

Judgment affirmed.


[Note 1] Pursuant to G. L. c.94C, s. 32E(b), as amended by St. 1988, c.124:

"(b) Any person who trafficks in a controlled substance defined in clause 4 of paragraph (a) of class B of section thirty-one by knowingly or intentionally manufacturing, distributing, or dispensing or possessing with intent to manufacture, distribute, or dispense or by bringing into the commonwealth a net weight of fourteen grams or more of a controlled substance as so defined, or a net weight of fourteen grams or more of any mixture containing a controlled substance so defined shall, if the net weight of a controlled substance as so defined or any mixture thereof is:

"(1) Fourteen grams or more, but less than twenty-eight grams, be punished by a term of imprisonment in the state prison for not less than three nor more than fifteen years. No sentence imposed under the provisions of this clause shall be for less than a minimum term of imprisonment of three years, and a fine of not less than two thousand five hundred nor more than twenty-five thousand dollars may be imposed but not in lieu of the mandatory minimum term of imprisonment, as established herein."

[Note 2] The petitioner assails the Superior Court's decision that G. L. c.94C, s. 32H, creates an absolute bar to the receipt of good time credits during the mandatory minimum period of a sentence thereunder. He argues that the statute's exclusion of good conduct credits was only intended to prevent prisoners from getting a good conduct discharge date earlier than their mandatory minimum sentence.

[Note 3] Section 129 was repealed by St. 1993, c.432, s. 10.

[Note 4] "A person convicted of violating any provision of [G. L. c. 94C, s. 32E] shall not, until he shall have served the mandatory minimum term of imprisonment established, in [G. L. c. 94C, s. 32E], be eligible for probation, parole, furlough, work release, or, receive any deduction from his sentence for good conduct under [secs. 129, 129A, 129C and 129D of chapter 127] ...." G. L. c. 94C, s. 32H, as amended through St. 1989, c.415.