October 04, 2013

• Steven Topazio wrote this May 5, 2014 at 4:06 am

The client, a 44 year old individual, was serving a 4-5 year state prison sentence after tendering a change of plea in Salem Superior Court to an Assault and Battery with a Dangerous Weapon and Breaking and Entering charge. Prior to his change of plea, the client was out on bail but was arrested for Possession With Intent to Distribute Class A School Zone and held on bail in the BMC, a different court. Shortly after his new arrest the client pled guilty in the BMC and was convicted of the Possession With Intent to Distribute Class A in a School Zone and received a sentence of one (1) day to the House of Correction and two (2) years from and after sentence. The client began serving his BMC sentence at South Bay House of Corrections until he changed his plea in the Superior Court case where he received a sentence of 4-5 years in State Prison forthwith which ended the BMC House of Corrections sentence. The client was not given jail credit on his Superior Court sentence for the time he was in custody on the BMC case. Attorney Topazio challenged the BMC case and moved to vacate the sentence on grounds that it was discovered that Chemist Annie Dookhan carried out the testing on the alleged controlled substance in the laboratory where the testing was carried out which has been identified by law enforcement officials as a person who intentionally contaminated drug evidence to ensure positive tests, inflated drug sample weights, falsified drug analysis findings, and fraudulently altered chain of custody documents during a time period relevant to this case. As a result of Ms. Dookhan’s misconduct, the Attorney Topazio filed a Motion for New Trial in the BMC which after hearing was allowed by the Court on the ground that the defendant’s guilty plea was not knowing and voluntary, and therefore violated the Fourteenth Amendment and Article 14. Attorney Topazio next argued that his client did not receive the full jail credit on his Superior court case for the time that his client was in custody on the BMC case as a result of the client’s conviction on the BMC case being vacated. Attorney Topazio argued that this lost time is now considered dead time and his client should be credited with this time on his Superior Court sentence. By way of motion Attorney Topazio requested that his client be credited on the Superior Court case in Essex County for all time awaiting trial in the BMC case in Suffolk County due to the erroneous conviction in the BMC. Attorney Topazio argued that it is necessary to remedy the injustice to his client who served time for which he otherwise would receive no credit. Attorney Topazio argued that if his client is not credited that time it will be considered dead time to the defendant, and the court agreed.