WARREN DURHAM vs. MASSACHUSETTS PAROLE BOARD.

QUIRICO, J. The defendant Massachusetts Parole Board appeals from the decision of a Superior Court judge declaring that the plaintiff Warren Durham, a prisoner at the Massachusetts Correctional Institution at Walpole is presently eligible for parole consideration. We granted direct appellate review to resolve a question as to the proper interpretation of the third clause of G. L. c. 127, Section 133, which establishes a minimum period of ineligibility for parole release after conviction of and sentencing to State prison for a crime committed while on parole. We now reverse the judgment below and remand to the Superior Court for entry of a substitute judgment.

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The facts essential to our disposition of this appeal are not disputed. On September 19, 1969, upon his conviction on two counts of an indictment charging assault and battery by means of a dangerous weapon, Durham was sentenced to be confined at M.C.I., Walpole, for a period of not less than three nor more than ten years. This sentence took effect July 14, 1969; [Note 1] on December 18, 1970, Durham was released on parole. [Note 2] On July 6, 1972, Durham's parole was revoked and a parole violation warrant was issued for his arrest. He was returned to custody under this warrant on March 6, 1975. On October 2, 1975, Durham received an additional sentence of six to ten years at M.C.I., Walpole, again for a conviction on an indictment charging assault and battery by means of a dangerous weapon. This sentence was imposed to take effect from and after the expiration of the sentence he was then serving.

In accord with its stated policy, see Commissioner's Bulletin No. 77-11 -- Parole Board Policy Statement (June 6, 1977), the parole board in 1976 and 1977 reviewed Durham's eligibility for parole from his 1969 sentence but did not grant him a parole. On May 6, 1978, Durham completed serving that sentence and began serving his 1975 sentence. According to the parole board, Durham will not become eligible for parole consideration until May 5, 1982,

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the date on which he will have served two-thirds of the minimum term of his 1975 sentence. [Note 3]

Durham, however, contends that he became eligible for parole consideration after having served a period equal to two-thirds of the aggregate minimum terms of the two sentences. Under his theory, the date of his parole eligibility as to both sentences was September 30, 1979. [Note 4] Accordingly, on December 12, 1979, Durham through his attorney filed an action seeking a declaration of his eligibility for parole consideration and an order requiring the parole board to provide a parole release hearing. There being no dispute as to any material fact, the case was heard by a special master on the parties' cross motions for summary judgment. The master recommended granting the plaintiff's motion, and on April 2, 1980, the Superior Court judge entered a judgment declaring as follows: "G. L. c. 127, sec. 133, clause (c) does not preclude the aggregation of preparole and post-parole sentences such as are here involved. Plaintiff is entitled as a matter of law to such aggregation of sentences and the Board is to grant plaintiff a hearing as required by G. L. c. 127, sec. 136 [specifying procedure for parole release hearings]." [Note 5]

The sole issue presented on this appeal is whether G. L. c. 127, Section 133, permits such aggregation. Section 133 begins by stating that "[p]arole permits may be granted by the

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parole board to prisoners subject to its jurisdiction at such time as the board in each case may determine," then limits the board's discretion by providing minimum periods of parole ineligibility depending on the type of crime for which a prisoner has been sentenced. Clause (a) of Section 133 establishes the period of parole ineligibility for certain enumerated violent felonies; clause (b) amounts to a residual provision applicable to all State prison sentences imposed for conviction of any crime other than those mentioned in clause (a). Clause (c) makes special parole provisions for cases involving sentences imposed for crimes committed by persons while at liberty on parole. It provides "that no prisoner held under a sentence containing a minimum sentence for a crime committed while on parole shall receive a parole permit until he shall have served two-thirds of such minimum sentence, or, if he has two or more sentences to be served otherwise than concurrently for offenses committed while on parole, two-thirds of the aggregate of the minimum terms of such several sentences, but in any event not less than two years for each such sentence." G. L. c. 127, Section 133 (c), as appearing in St. 1979, c. 266. Finally, Section 133 provides for certain deductions from the periods of ineligibility for parole otherwise established by that section.

Durham concedes that the period of parole ineligibility on his 1975 sentence is determined by clause (c) of Section 133, but argues that the language of that clause represents a simple "omission of a provision for aggregation" of pre-parole and parole crime sentences. The end product of his theory, accepted by the judge, is that time served by a prisoner on a pre-parole sentence over and above the minimum period of parole ineligibility based on that sentence would be available to offset the period of parole ineligibility arising from his subsequent parole crime sentence. This "credit" would apparently include both the period of actual incarceration prior to parole as well as the time between a prisoner's release on parole and the revocation of parole. See G. L. c. 127, Section 149, as appearing in St. 1980, c. 155, Section 6 ("In computing the period of [a prisoner's] confinement, the

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time between the day of his release upon a permit and the day of revocation of such permit shall be considered as part of the term of his sentence . . ."). See also Pina v. Superintendent, Mass. Correctional Inst., Walpole, 376 Mass. 659, 667-668 (1978).

We do not agree with this interpretation of the restrictions on parole eligibility imposed by clause (c). In our view, such a procedure would conflict directly with the language of clause (c) as well as the purposes of that clause as revealed by its legislative history. First, it is plain that clause (c) of Section 133 speaks prospectively. Before that section can come into play at all a prisoner must be "held under a sentence containing a minimum sentence for a crime committed while on parole." Once it does come into play, no parole permit may be issued until the prisoner "shall have served two-thirds of such minimum sentence" (emphasis supplied). To sanction a procedure which allows partial or complete satisfaction of the ineligibility period by time served prior to the commission of the parole crime -- time which, by the terms of Section 149, may in fact have been served while on parole release -- would be simply to ignore the statutory language.

Equally significant to our analysis is the fact that clause (c) makes specific provision for the aggregation, for purposes of computing parole eligibility, of multiple consecutive sentences imposed for crimes committed while on parole. The provision for calculating parole eligibility as to a single parole crime and the provision for calculating parole eligibility for multiple parole crimes were enacted together. See St. 1965, c. 764, Section 1. We think it clear from a comparison of these two provisions that, had the Legislature intended to permit the aggregation of sentences proposed by Durham, it would have done so expressly, not by silence. Cf. Brady v. Brady, 380 Mass. 480, 483 (1980). 2A C. Sands, Sutherland Statutory Construction Section 47.23, at 123 (4th ed. 1973).

Finally, our conclusion as to the intent of clause (c) is buttressed by a review of the legislative history of Section 133. Prior

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to 1965, Section 133 contained no special provision pertaining to the parole eligibility of persons convicted of crimes committed while on parole release. By c. 162 of the Resolves of 1963, the Legislature empanelled a Special Commission on Firearms, Paroles, and Related Matters. Among its several tasks, the commission was to undertake an investigation and study of "the laws of the commonwealth relative to the release of prisoners on parole, and of the procedures employed in carrying out the provisions of such laws, to determine whether proper safeguards are observed for the protection of the public." On June 29, 1965, the commission presented to the Legislature its third report, dealing with the subject of paroles. 1965 Senate Doc. No. 1151. The commission prefaced its report with the observation that the Legislature had acted in part "as a result of the murders of several police officers by parolees or former parolees and the increase in crimes of violence by gangland figures throughout Metropolitan Boston. This has caused a loss of confidence in the parole system by the people of the commonwealth and your Commission feels that stringent measures must be used and that this condition must be speedily corrected." Id. at 1. The commission noted among the purposes of its recommendations "providing the public with greater protection, thus restoring the confidence of the community in our parole system." Id. at 2. With respect to parole eligibility after conviction of a crime committed while on parole, the recommendation was unequivocal: "We . . . recommend that men sentenced to the State Prison for a crime committed while on parole shall not be eligible for parole until they have served two-thirds of their minimum sentence but in any event not less than two years." Id. at 3.

The language chosen by the commission to effect this change was less than a model of clarity. [Note 6] Significantly,

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however, the first provision of the recommended clause (c) survived the legislative process intact, and it is that provision which applies to Durham's case. We thus find in the legislative history a clear indication that clause (c) of Section 133 was meant to ensure an absolute minimum period of parole ineligibility following the conviction of a crime committed while on parole.

As we have demonstrated, the third clause of Section 133 is neither ambiguous nor silent as to the theory of aggregation advanced by Durham. Accordingly, we need not resort to the principle of strict construction of penal statutes expressed in Beloin v. Bullett, 310 Mass. 206, 211 (1941). Nor is there anything in Henschel v. Commissioner of Correction, 368 Mass. 130 (1975), that is inconsistent with the instant decision. There, our study of the legislative history of G. L. c. 127, Section 128, revealed that the Legislature, in extending the jurisdiction of the parole board to include certain county house of correction prisoners, had simply omitted a corresponding provision for the aggregation of State prison and house of correction sentences in computing parole eligibility. Nothing in the relevant statutes or their history indicated an intent to preclude such aggregation. See Henschel v. Commissioner of Correction, supra at 134-137. Henschel is thus wholly distinguishable from the instant case. [Note 7]

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In sum, we hold that, for the purpose of determining parole eligibility as to a parole crime sentence, clause (c) of G. L. c. 127, Section 133, does not permit a sentence imposed for crimes committed while on parole to be aggregated with a prisoner's pre-parole sentence. We therefore vacate the judgment below and remand for the entry of a judgment in accordance with the terms of this opinion.

So ordered.