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Frank T. Bolduc vs. Commissioner of Correction

Massachusetts Supreme Judicial Court1969-05-01
355 Mass. 765

Summary

Holding. The court affirmed the decree correcting the mittimus to conform to the sentence actually imposed, rejecting the plaintiff's arguments that the correction was improper and that he suffered prejudice thereby.

Frank Bolduc received multiple sentences between 1956 and 1960, including a life sentence imposed on November 14, 1960, that was to run consecutively after his then-current sentence. The mittimus (the official commitment document) issued for the 1960 life sentence contained language stating the sentence would begin "from and after the expiration of all previous sentences," which differed from the court's actual pronouncement that it would begin "from and after the expiration of the sentence" he was then serving at Walpole.

Bolduc sought to have the 1960 life sentence declared void, to obtain a new trial, or alternatively, to have the mittimus corrected to match the actual sentence imposed. The trial judge denied the first two requests but granted the third, correcting the mittimus. On appeal, Bolduc challenged this correction, arguing among other things that the judge lacked power to modify the mittimus after such a long delay and that he suffered prejudice regarding parole eligibility.

The court upheld the correction, holding that judges retain plenary power to correct errors in their records at any time to conform them to what was actually pronounced in court. The court distinguished between correcting a mittimus to match the actual sentence (permissible) and revising or revoking a sentence under the statutory time limit (not applicable here). The court found no prejudice to Bolduc's parole eligibility regardless of how the sentences were construed, since under either interpretation he would remain ineligible for parole for many years.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a court may correct a mittimus after a significant delay to conform it to the sentence actually imposed
  • Whether correcting a mittimus constitutes impermissible revision or revocation of a sentence under statutory time limits
  • Whether an error in the mittimus prejudiced the plaintiff's parole eligibility

Procedural posture

Bolduc filed a bill for declaratory relief, which was heard on the pleadings with the defendant admitting all essential facts; the trial judge granted partial relief by ordering correction of the mittimus, and Bolduc appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Spalding, J.

This bill for declaratory relief was heard on the pleadings, the answer having admitted all the facts essential to a determination of the controversy.

On March 14, 1956, the plaintiff was sentenced to the Massachusetts Correctional Institution at Walpole (Walpole) for life. On December 26, 1956, a sentence of not less than two years nor more than three years was imposed, to.be served “from and after sentence being served.” On March 13, 1957, he received a sentence of not less than seven years nor more than ten years to be served “from and after the expiration of the sentence now being served in the M.C.I., Walpole.” On October 6, 1960, a sentence of not less than five years nor more than seven years was imposed, to be served “from and after sentence now being served.”

The plaintiff received a life sentence on November 14, 1960, to take effect “from and after the expiration of the sentence ” he was then serving at Walpole. At the same time the plaintiff was sentenced on several other indictments, the sentences to run concurrently with this life sentence. Also on the same day a mittimus was issued with respect to the life sentence reciting that “¡Tjhis sentence to take effect from and after the expiration of all previous sentences to be served” (emphasis supplied).

It will be noted that the mittimus did not conform to the sentence actually imposed in that the mittimus did not provide that the sentence was to take effect “from and after the expiration of the sentence” the plaintiff was then serving (emphasis supplied).

The relief sought by the plaintiff is a declaration that (prayer 2) the life sentence imposed on November 14, 1960, be declared null and void; that (prayer 3) the court lacked power to revise or revoke the commitment and the plaintiff must be granted a new trial; and that (prayer 4) if the court should decide that it could correct the mittimus it should be corrected to read “from and after expiration of sentence he is serving in M.C.I., Walpole,” and a declaration should be made that all prior from and after sentences imposed on the plaintiff are to run concurrently with the term set forth in the corrected mittimus.

The judge entered a decree denying the relief sought in the second and third prayers and granting the relief sought in the fourth prayer. The plaintiff appealed.

There was no error.

The mittimus under which a person is committed to prison is “a duly certified transcript [[issued by the clerk] from the minutes of the court of the conviction and sentence, which shall authorize the officer to execute such sentence, and he shall execute it accordingly.” G. L. c. 279, § 34. The sentence recited in the mittimus was not in conformity with that imposed by the court. That a court has plenary power at any time to correct errors in its records is well established. Balch v. Shaw, 7 Cush. 282, 284. Commonwealth v. Soder-quest, 183 Mass. 199, 200. Kacavas v. Toothacker, 278 Mass. 302, 303. Webb v. Cohen, 280 Mass. 292, 293. Chagnon v. Chagnon, 300 Mass. 309, 311. Thus the judge rightly ordered the mittimus to be corrected so that it would conform to the sentence actually imposed. Contrary to the plaintiff’s contention, there is nothing in G. L. c. 278, § 29C, inserted by St. 1962, c. 310, § 2, which prevents such a correction. Section 29C imposes a time limit of sixty days (which was far exceeded here) within which a judge of the Superior Court after the imposition of sentence may “revise or revoke any sentence” if it appears to him that “justice has not been done or cannot be done.” But that is not the situation here, for there was no revision or revocation of the original sentence. Rather there was a correction of the mittimus so that it would conform to the actual record. See Commonwealth v. Soderquest, 183 Mass. 199, 200. The fact that eight years elapsed between the time of sentence and the entry of the decree correcting the mittimus was of no consequence. Balch v. Shaw, 7 Cush. 282 (fourteen years). Long v. George, 296 Mass. 574, 576-577 (five years).

There is nothing in the plaintiff’s argument that the original sentence was too vague. Nor are we persuaded, as the plaintiff argues, that he was prejudiced with respect to his eligibility for parole because of the error in the mittimus. By any construction of either the 1960 sentence or the 1960 mittimus the plaintiff had to serve either a life sentence plus the from and after sentences of two to . three years, seven to ten years, and five to seven years, followed by a second life sentence, or, alternatively, two consecutive life sentences. Since in either case he would not be eligible for parole for many years after the sentencing in 1960 or the decree in this case in 1968, we fail to see how he has in any way been prejudiced in the matter of his parole. See G. L. c. 127, § 133A, as amended.

We have considered all of the questions argued by the plaintiff and have dealt with such of them as require discussion.

Decree affirmed.