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SJC-11676

COMMONWEALTH vs. JOSEPH S. RIDGE.

March 2, 2015.

Practice, Criminal, Sentence.

In 2007, Joseph S. Ridge pleaded guilty to certain offenses 

in the Superior Court in Norfolk County and was sentenced to 

approximately four years in the State prison. At that time, he 

received credit for time he spent in custody awaiting trial both 

on that charge and on other charges then pending against him in 

Plymouth County. In 2008, Ridge pleaded guilty to a charge of 

unarmed robbery in the Superior Court in Plymouth County. 

Pursuant to an agreed-upon recommendation that was adopted by 

the sentencing judge, he was sentenced to a term of from 

fourteen to fifteen years in the State prison, concurrent with 

the sentence in the Norfolk County case, which he was then 

serving. At that time, Ridge neither requested nor received 

credit for his pretrial detention. In 2013, Ridge moved pro se 

to correct the mittimus as to the Plymouth County case, 

requesting credit for time he was detained awaiting trial. A 

judge of the Superior Court denied the motion, as well as a 

substitute motion filed subsequently by appointed counsel, on 

the ground that the time in question had already been credited 

against Ridge's sentence in the Norfolk County case, that Ridge 

had benefited from the concurrent sentences, and that 

fundamental fairness did not compel a different result. We 

allowed Ridge's application for direct appellate review and 

affirm the motion judge's orders.

"Pursuant to G. L. c. 279, § 33A, '[c]riminal defendants 

have a right to have their sentences reduced by the amount of 

time they spend in custody awaiting trial, unless in imposing 

the sentence, the judge has already deducted such time or taken 
it into consideration in determining the sentence.'" Williams

v. Superintendent, Massachusetts Treatment Ctr., 463 Mass. 627, 

630-631 (2012), quoting Commonwealth v. Milton, 427 Mass. 18, 

23-24 (1998). Fairness is the basic touchstone, and is the 

appropriate measure in determining whether and to what extent

credit for time spent in custody shall be given. Chalifoux v. 

Commissioner of Correction, 375 Mass. 424, 427 (1978). While 

Ridge acknowledges, as he must, that the time he spent in 

pretrial custody was credited to his Norfolk County sentence, he

argues that this credit was illusory, as he was subsequently 

sentenced to a longer concurrent term in the Plymouth County

case. In other words, he will not be released any earlier as a 

result of this credit. He therefore argues that fairness 

requires that the credit be applied to the Plymouth County 

sentence. We disagree. Where, as here, the time previously 

credited to the defendant is "wholly inclusive of the period the 

defendant claims as credit on" a later-imposed sentence, "there 

is no special consideration of fairness that supports the credit 

that the defendant seeks." Commonwealth v. Barton, 74 Mass. 

App. Ct. 912, 915 (2009). See also Commonwealth v. Blaikie, 21 

Mass. App. Ct. 956, 957 (1986) (sentencing judge in Suffolk 

County properly refused to give credit for time previously 

credited against sentences imposed in Middlesex County). To be 

sure, had the defendant requested credit for his pretrial 

detention at the time of the Plymouth County sentencing, the 

sentencing judge plainly would have had the power to accede to 

or to deny the request. As noted earlier, no such request was 

made. Moreover, Ridge agreed to the Plymouth County sentence 

and, without explaining the delay, did not seek any credit 

against it for nearly five years. In these circumstances, the 

motion judge was not obligated to grant his request. Ridge

received what he bargained for, and fundamental fairness does 

not require more.

The orders denying the defendant's motions to correct the 

mittimus are affirmed.

So ordered.

Katherine C. Riley for the defendant.

Laurie Yeshulas, Assistant District Attorney, for the 

Commonwealth.