NOTICE: The slip opinions and orders posted here are
subject to formal revision and are superseded by the advance
sheets and bound volumes of the Official Reports. This
preliminary material will be removed from the Bulletin Board once
it is printed in the Official Reports advance sheets. If you find
a typographical error or other formal error, please notify the
Reporter of Decisions, Supreme Judicial Court, Room 1407, Boston,
MA 02108; (617) 557-1030.
97-P-409 Appeals Court
Middlesex. November 9,
1998. – January 28, 1999.
Present: Jacobs, Porada,
& Rapoza, JJ.
Good conduct deductions, Escape. Escape. Practice,
Criminal, Sentence. Statute, Construction.
Petition for a writ
of habeas corpus filed in the Superior Court Department on August
The case was heard by Wendie
I. Gershengorn, J.
Wendy B. Golenbock
for the petitioner.
Beatriz E. VanMeek
for the Commissioner of Correction & another.
The sole issue in this
case is whether pursuant to G. L. c. 127, Sect. 49, consecutive
sentences are to be aggregated for purposes of forfeiting
statutory good conduct credits when an inmate escapes from work
release. Section 49 reads in pertinent part as follows:
"[A]ll deductions from the sentence or sentences [the
inmate] was serving at the time of such escape, authorized by [G.
L. 127, Sect. 129]  shall be forfeited . . .
." The Department of Corrections (department) construes this
statute to mean that consecutive sentences shall be combined into
one sentence from which the prisoner’s accumulated statutory good
conduct credits shall be deducted. Based on this interpretation,
upon the petitioner’s conviction on the charge of escape from
work release, the department combined his two consecutive
sentences — the first, for assault and battery by means of a
dangerous weapon, and the second, for rape — into one sentence
from which the department mandated forfeiture of all the
petitioner’s accumulated statutory good conduct credits to arrive
at a maximum release date. The petitioner contends that this was
error, for the department should have deducted his good conduct
credits only from the one sentence he was serving at the time of
his escape, the sentence for rape, for which there were no
statutory good time credits to deduct. See G. L. c. 127, Sect.
129. Claiming that he was entitled to his immediate release from
prison, the petitioner filed a petition for a writ of habeas
corpus in the Superior Court, which was denied. We affirm.
We summarize the material
facts which are not contested. Effective February 3, 1972, the
petitioner began serving a six to ten year sentence for assault
and battery by means of a dangerous weapon. At the commencement
of that sentence, the petitioner was awarded 1,500 days of
statutory good conduct credits under G. L. 127, Sect. 129. See Burno
v. Commissioner of Correction, 399 Mass. 111, 114 (1987).
On November 26, 1975, the petitioner was sentenced to a term of
from fifteen to twenty years for the crime of rape. This sentence
was to run from and after the expiration of the sentence he was
presently serving. As noted, the petitioner was not entitled to
any statutory good conduct credits for his rape conviction. G. L.
c. 127, Sect. 129. On or about December 10, 1985, the petitioner
escaped from a work release program at the Massachusetts
Correctional Institution at Shirley. He was at large until May
15, 1987. On December 21, 1987, following the conviction of
escape, the petitioner was sentenced to three to five years in
State prison, which sentence was to run concurrently with the
sentence he was then serving. After the imposition of this
sentence, the department authorized forfeiture of all the
petitioner’s accrued statutory good conduct credits of 1,500 days
on his conviction for assault and battery by means of a dangerous
weapon and recalculated his maximum release date as August 30,
2000. If the department had not authorized forfeiture of the
petitioner’s statutory good conduct credits on this conviction,
he would have been entitled to a release date in August, 1996.
We now turn to the
construction of Sect. 49. At the outset, we look to the words of
the statute. Moloney v. Boston Five Cents Sav.
Bank FSB, 422 Mass. 431, 433 (1996). The petitioner argues
that the words at issue, "the sentence or sentences he was
serving at the time of [his] escape," must be interpreted to
mean the sentence for rape because his six to ten year sentence
for his assault and battery conviction had long since been
served. He bases his argument on the grounds that Sect. 49 is a
penal statute, see Wood v. Commissioner of Correction,
363 Mass. 79, 81 (1973), and any ambiguity in its meaning must be
resolved in his favor. He asserts that the words, "at the
time of [the] escape," under their common and approved
usage, have a temporal meaning which suggests that the
Legislature intended the section to apply only to the sentence
presently being served and not a combination of all of his
sentences upon which he was committed. While we agree with the
petitioner that penal statutes should be strictly construed, this
principle does not require that a penal statute be construed in
such a manner so as to defeat the obvious intention of the
In ascertaining the
Legislature’s intent, we look not only at the Legislature’s
words, but also the "cause of [the statute's] enactment, the
mischief or imperfection to be remedied and the main object to be
accomplished . . . ." Commonwealth v. Galvin,
388 Mass. 326, 328 (1983), quoting from Board of Educ. v. Assessor
of Worcester, 368 Mass. 511, 513 (1975). The text of Sect. 49
in question was added by St. 1972, c. 777, Sect. 13. At the time
of its enactment a similar penalty provision was in effect for
escapes from prison camps. G. L. c. 127, Sect. 83B. As in the
case of Sect. 83B, we presume it was the intent of the
Legislature to impose a mandatory penalty to deter prisoners from
escaping in circumstances presenting the opportunity for doing
so. Wood v. Commissioner of Correction, 363 Mass.
at 83. Were we to adopt the construction being urged by the
petitioner, there would be no such deterrent for a prisoner who
was serving a sentence which was not entitled to any good conduct
credits. Similarly, without a discernible reason, a prisoner
serving a single sentence in most cases would suffer a greater
penalty than those prisoners sentenced for the same total period
but under consecutive sentences. In comparison, the department’s
construction would insure that all prisoners would be exposed to
an additional penalty upon their escape commensurate with the
Legislative purpose and achieve greater parity in treatment of
prisoners similarly situated.
We are also aided in our
interpretation of Sect. 49 by the canon of statutory construction
which provides that different sections of the same statute which
relate to the same subject matter should be construed together so
as to constitute a harmonious whole consistent with the
legislative purpose. See McNeil v. Commissioner of
Correction, 417 Mass. 818, 822 (1994). Section 129 sets out
the method for reducing the sentences of prisoners by reason of
their good conduct credits. In Diafario v. Commissioner
of Correction, 371 Mass. 545, 547 (1976), the court was asked
to determine how a reduction under Sect. 129 should be applied
when a prisoner is serving two consecutive sentences. Like the
petitioner in this case, the prisoner in Diafario was
serving two consecutive sentences and was entitled to good
conduct credits on only the first of his two sentences. Id.
at 548-549. The prisoner in that case also argued that
consecutive sentences should be treated separately in
deducting good conduct credits. Id. at 550. The court
rejected that argument, and held that in arriving at a release
date, consecutive sentences are to be aggregated for purposes of
fixing a single termination date from which the total statutory
good conduct credits are to be deducted, even though one of the
sentences is not entitled to statutory good conduct credits. Id.
at 550-552. In order to achieve internal consistency between
Sect. 49 and Sect. 129, the department urges us to
treat consecutive sentences similarly in applying the forfeiture
provisions of Sect. 49.
The petitioner asserts
that we should reject that approach because the language in Sect.
129, on which the court relied in the Diafario case, is
not identical to the language used by the Legislature in Sect.
49. Specifically the petitioner points to that provision in Sect.
129 which reads, "[i]f a prisoner has two or more sentences
to be served concurrently or otherwise, the maximum period
of time for which he may be held under his sentences shall be the
basis upon which the deduction shall be determined . . ."
(emphasis supplied). The lack of identical language does not
necessarily prove varying intent. Goodwin v. Department
of Pub. Util., 351 Mass. 25, 27 (1966). Instead, we are
persuaded that the better course is to read the sections together
so as to constitute a harmonious and consistent body of law. Johnson
v. Johnson, 425 Mass. 693, 696 (1997). Cf. Wood v. Commissioner
of Correction, 363 Mass. at 82 n.5.
Accordingly, we decide
that the sentence or sentences the petitioner was serving at the
time of his escape for the purpose of applying the forfeiture of
good conduct credits pursuant to Sect. 49, was an aggregate of
his sentence for assault and battery by means of a dangerous
weapon and his sentence for rape.  Such a construction not
only promotes parity in treatment among prisoners but also best
achieves the purpose of the statute without enlarging its meaning
Order denying petition
 General Laws c. 127, Sect.
129, was repealed by St. 1993, c. 432, Sect. 10, effective July
1, 1994. We review the petitioner’s appeal because his action was
brought while Sect. 129 was still in effect. See Cordeiro
v. Commissioner of Correction, 37 Mass. App. Ct. 690, 693
 We decline to review the
petitioner’s argument that he is entitled to a pro rata
forfeiture of his good time credits since he did not raise this
issue in Superior Court. See Commonwealth v. Marchionda,
385 Mass. 238, 242 (1982).