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18-P-1399 Appeals Court
COMMONWEALTH vs. TRENT S. LINDBERG.
No. 18-P-1399.
Plymouth. October 11, 2019. - September 3, 2020.
Present: Milkey, Sullivan, & Ditkoff, JJ.
Youthful Offender Act. Department of Youth Services. Juvenile
Court, Probation. Practice, Criminal, Probation, Mittimus,
Sentence, Judicial discretion. Imprisonment, Credit for
time served.
Indictments found and returned in the Superior Court
Department on November 23, 2010.
After transfer to the Plymouth Division of the Juvenile
Court Department, the cases were heard by John P. Corbett, J.;
and a motion to correct mittimus, filed on April 30, 2018, was
heard by Kathryn A. White, J.
Rebecca Rose for the defendant.
Johanna S. Black, Assistant District Attorney, for the
Commonwealth.
SULLIVAN, J. The defendant was adjudicated a youthful
offender and received a combination sentence providing for
commitment to the Department of Youth Services (DYS) until age
2
twenty-one, probation until age twenty-five, and a suspended
sentence of incarceration as an adult. See G. L. c. 119,
§ 58 (b). He violated the terms of his probation while a
juvenile, and a different judge imposed the adult portion of the
sentence, commencing that day, concurrent with the balance of
his DYS commitment.1 The defendant appeals from an order denying
his motion to correct the mittimus, claiming that the second
judge failed to adhere to the original sentence when she
declined to treat the adult sentence as having run concurrently
with the juvenile portion of the sentence from the inception of
his original sentence. We affirm.
Background. Born on July 29, 1995, the defendant, age
fifteen, was charged with breaking into a residence, stealing
various items, entering the bedroom of the sleeping occupant,
and masturbating in front of her as she awoke.2 Indicted on
charges of assault with intent to rape, see G. L. c. 265, § 24;
indecent assault and battery on a person fourteen years of age
or older, see G. L. c. 265, § 13H; unarmed burglary, see G. L.
1 The original sentencing judge had retired.
2 The underlying offenses are not in dispute and are
summarized in the appeal from the order revoking probation and
imposing sentence. See Commonwealth v. Lindbergh, 92 Mass. App.
Ct. 1121 (2018) (decision pursuant to M.A.C. Rule 23.0 [formerly
known as Appeals Court Rule 1:28], as appearing in 97 Mass. App.
Ct. 1017 [2020]).
3
c. 266, § 15; and larceny in a building, see G. L. c. 266, § 20,
he agreed to adjudication as a youthful offender.
The original sentencing judge (first judge) entered
detailed findings regarding his choice of sentence in accordance
with G. L. c. 119, § 58, fourth par. He found that the
defendant had a history of substance abuse, anger issues,
truancy, and poor academic performance. The first judge further
found that the likelihood of reoffense was high and noted the
availability of services through DYS consisting of between
twenty-four and thirty-six months of secure treatment. He then
entered a combination sentence on the indecent assault and
battery conviction -- commitment to DYS until July 29, 2016 (age
twenty-one), a term of probation until July 29, 2020 (age
twenty-five), plus a suspended adult (State prison) sentence of
from three to five years. On the assault with intent to rape
conviction, the first judge imposed a sentence of commitment to
DYS until July 29, 2016 (age twenty-one), a term of probation
until July 29, 2020 (age twenty-five), plus a suspended adult
sentence of from six to ten years. With respect to the property
offenses, he imposed the same period of commitment to DYS, and a
three to five year suspended adult sentence for the larceny
conviction and a six to ten year suspended adult sentence for
the burglary conviction. In each instance he ordered that the
4
"[p]rison or HOC [house of correction] sentence(s) shall run
concurrently with[] other sentences imposed this day."
The defendant was released from DYS custody in April of
2013, and violated his probation shortly thereafter by driving
past the victim's home. The first judge reprobated him and
modified the terms of probation to bar travel on the victim's
street. The judge also required global positioning (GPS)
monitoring. The defendant failed to inform the Sex Offender
Registry Board of his employment, and the first judge found that
the defendant violated his probation for a second time. He was
again reprobated, but was found in violation again for a third
time when he failed to charge the GPS device. After a hearing,
a different judge (second judge) imposed the six to ten year
adult sentence as of that date, January 8, 2016, on the then
twenty year old defendant. A subsequent appeal from the
sentence as disproportionate was rejected by a panel of this
court. See Commonwealth v. Lindberg, 92 Mass. App. Ct. 1121
(2018).
Discussion. The defendant filed a motion to correct the
mittimus asserting that all of the sentences were concurrent,
and that his adult sentence should have run from October 21,
2011, the date of his original sentence and commitment to DYS.3
3 The defendant appealed from the order denying the motion.
The Commonwealth suggests that the appeal is more aptly
5
To place the particulars of this argument in context, it is
necessary to review the statutory underpinnings of the sentence
imposed.
"For a youthful offender, a Juvenile Court judge may order
one of three consequences: (1) a sentence provided by law
(i.e., an adult sentence); (2) a combination sentence (which
combines a commitment to DYS with a suspended adult sentence);
or (3) commitment to DYS until the age of twenty-one. G. L.
c. 119, § 58, third par." Commonwealth v. Samuel S., 476 Mass.
497, 503 (2017).4 Youthful offender status, and the sentencing
considered as an appeal from the denial of a motion pursuant to
Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001),
to correct an illegal sentence. We decline to address the
procedural issue. The second judge denied the motion on its
merits, nothing turns on the characterization of the underlying
motion, and both parties agree that the appeal is properly
before us.
4 General Laws, § 58, third par., provides in pertinent part
"a combination sentence which shall be a commitment to [DYS]
until he reaches the age of twenty-one, and an adult sentence to
a house of correction or to the [S]tate prison as is provided by
law for the offense. The adult sentence shall be suspended
pending successful completion of a term of probation, which
shall include, but not be limited to, the successful completion
of the aforementioned commitment to [DYS]. Any juvenile
receiving a combination sentence shall be under the sole custody
and control of [DYS] unless or until discharged by the
department or until the age of twenty-one, whichever occurs
first, and thereafter under the supervision of the juvenile
court probation department until the age of twenty-one and
thereafter by the adult probation department; provided, however,
that in no event shall the aggregate sentence imposed on the
combination sentence exceed the maximum adult sentence provided
by law." G. L. c. 119, § 58, third par.
6
options attendant to it, are a creature of the Legislature's
1996 overhaul of the juvenile justice system. See St. 1996,
c. 200. A combination sentence is neither the least nor the
most severe sentence under the statute. Instead, it offers the
youthful offender a middle ground -- the opportunity to
discharge his or her sentence in the juvenile system and avoid
adult incarceration.
"When a combination sentence is imposed, the adult sentence
must be suspended pending the successful completion of a term
that includes, but is not limited to, the DYS commitment. . . .
If the youthful offender fails to complete his DYS commitment
(and any additional probationary period) successfully, the court
may then impose the adult sentence. Alternatively, if the DYS
commitment (together with any other suspended portion of the
sentence) is successfully completed, the adult sentence can be
averted." Commonwealth v. Lucret, 58 Mass. App. Ct. 624, 626
(2003). See G. L. c. 119, § 58, third par. ("The adult sentence
shall be suspended pending successful completion of a term of
probation, which shall include, but not be limited to, the
successful completion of the aforementioned commitment to
[DYS]").
In the event that the sentencing judge imposes an adult
sentence, "G. L. c. 119, § 58 (b), plainly authorizes the
sentencing judge to order that, in the event of a probation
7
violation, a youthful offender's DYS commitment and adult
sentence be served either concurrently or consecutively as the
situation may warrant, subject, of course, to the overarching
requirement that the aggregate combination sentence not exceed
the maximum adult sentence provided by law." Lucret, 58 Mass.
App. Ct. at 629-630.5 The decision whether to impose the adult
sentence concurrently or consecutively was one which was for the
sentencing "judge to determine, upon consideration of all the
salient factors, whether a new offense should result in
immediate adult incarceration or whether the adult portion of a
combination sentence is best served after the completion of the
youthful offender's commitment to DYS." Id. at 630.
We now turn to the particular sentence under consideration
here. The second judge understood the first judge's notation on
each of the sentencing orders, "[p]rison or HOC sentence(s)
shall run concurrently with[] other sentences imposed this day,"
to be a directive to run the four adult sentences, if and when
imposed, concurrently with each other and any remaining period
of DYS commitment. The defendant maintains that the language of
the sentencing documents is a clear and unambiguous expression
of intent to run the entire package of adult and juvenile
5 The defendant's maximum sentence was twenty years under
G. L. c. 265, § 24, a period greater than the aggregate
sentence.
8
sentences concurrently effective that day, that his construction
is the only permissible construction, and that because the first
judge limited the sentence in this manner from the outset, any
other disposition that increases the original sentence is
illegal. See generally Commonwealth v. Sallop, 472 Mass. 568
(2015).
The premise of the defendant's argument is that the
original sentencing judge intended to allow full credit for time
spent while committed to DYS against the adult sentence once
imposed. This construction does not adequately address the fact
that the sentence was suspended, and was not susceptible of
being served, until it was imposed. Because DYS, and not the
judge, determines where a juvenile will reside during the term
of DYS commitment, see Samuel S., 476 Mass. at 504; G. L.
c. 120, § 6, a sentencing judge has no definitive way of knowing
whether the youthful offender will be held in a secure or
nonsecure facility for all, part, or none of the period of his
or her commitment. If rehabilitation is successful, the
youthful offender may spend time at conditional liberty while
still under the supervision of DYS and juvenile probation. A
concurrent sentence effective the date of commitment would lead
to the anomalous situation, as would be the case here, in which
an adult sentence of incarceration runs concurrently with the
time a youthful offender remains at conditional liberty. The
9
defendant has not cited, and we have not found, any case which
stretches the definition of concurrent sentences of
incarceration to this extent.
The defendant's argument is also belied by the first
judge's carefully constructed sentence and factual findings.
Having found that the youthful offender was at high risk for
reoffense, the judge crafted a sentence that provided a
substantial period of probationary supervision in the event that
the defendant successfully completed the juvenile portion of the
sentence, and a substantial period of incarceration in the event
that the youthful offender did not successfully complete the
juvenile portion of the sentence or violated his probation
before the age of twenty-five. Given the judge's stated
concerns about the defendant's likelihood of reoffense, and the
substantial period of probation and incarceration reflected in
the suspended adult sentence, we agree with the second judge
that it would make little sense to conclude that the first judge
intended to, in effect, forgive up to six years of a six to ten
year adult prison sentence for the period of time the defendant
was still a juvenile.
We reject the defendant's contention that the rule of
lenity requires a different interpretation. The rule of lenity
is a rule of statutory construction, see Samuel S., 476 Mass. at
506, and while it applies to sentencing statutes, see id.,
10
citing Commonwealth v. Richardson, 469 Mass. 248, 254 (2014),
and Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982), cert.
denied, 464 U.S. 815 (1983), the rule of lenity does not apply
to the sentence itself. Furthermore, we think the sentencing
judge's intent is self-evident for the reasons stated above.
Finally, the defendant urges us to rule that the defendant
is entitled to credit for time spent in a DYS secure facility
under the juvenile portion of the sentence against the adult
sentence once imposed. The youthful offender sentence is a
single sentence, but it is composed of two distinct parts.
Lucret, 58 Mass. App. Ct. at 628. The time spent in a secure
DYS facility is spent in satisfaction of the DYS portion of the
sentence. If successful, the adult portion of the sentence is
forgiven in its entirety. But if, as here, the adult sentence
is imposed, that is a separate, statutorily defined consequence.
See G. L. c. 119, § 58, third par. The time spent in a DYS
secure facility in the first part of a youthful offender
sentence is categorically different than jail credit given for
pretrial detention, and the line of jail credit cases cited by
the defendant is therefore inapposite. See, e.g., Chalifoux v.
Commissioner of Correction, 375 Mass 424, 427 (1978). Cf.
Commonwealth v. Ridge, 470 Mass. 1024 (2015) (no entitlement to
jail credits on subsequently imposed concurrent sentence, where
credits were already awarded on previously imposed sentence).
11
We do not decide whether the first judge would have had the
discretion to give credit for time spent in a secure DYS
facility nunc pro tunc against the adult sentence, see generally
Commonwealth v. Lydon, 477 Mass. 1013 (2017), as the issue was
not raised in the trial court. See Lucret, supra at 630.
Order denying motion to
correct mittimus affirmed.