PITTSFIELD — A Superior Court judge is considering whether to grant a new trial for a man who says changes in the law were not applied equitably to him and a co-defendant when considering parole eligibility.
Rashawn "Sleepy" Johnson pleaded guilty in January 2012 to four counts each of cocaine distribution and committing a drug violation near a school or park. He was sentenced to a total of 5 1/2 to 7 years.
Those crimes were charged as first offenses as part of a plea agreement.
A co-defendant in Johnson's case, Devon Kelly, pleaded to similar charges about the same time and was given a sentence of the same length, but was charged as a first-time offender under a different subsection of Massachusetts General Law than Johnson was.
According to Johnson's attorney, Raymond Jacoub, the state's August 2012 Crime Bill made changes to some mandatory minimum sentences for those convicted of drug offenses, but that change did not affect Johnson's sentence.
Kelly was originally sentenced under subparagraph (b) of the cocaine distribution law which carries a three-year minimum mandatory sentence.
Johnson was sentenced under subparagraph (c) of the same law, which carries a one-year minimum mandatory sentence.
Both sentences carry a maximum penalty of 10 years in prison.
As a result of the change, minimum mandatory sentences like Kelly's under subparagraph (b) were reduced from three years to two and no changes were made to subparagraph (c) sentences like Johnson's.
In his motion, Jacoub said the state Department of Correction applied the new minimums to those already sentenced when calculating parole eligibility, making Kelly eligible one year earlier than he originally would have been.
Johnson received no such consideration, because there were no changes made to his sentence, because no changes were made to the specific section of the law under which he was convicted.
Jacoub said without re-sentencing Johnson under the alternate subparagraph, he will only become parole eligible at the five-year mark of his sentence, in contrast to Kelly, who became parole eligible immediately with the change in the law.
Jacoub argued that the disparity in sentences was unfair, considering it is the result of a change in the law after the fact.
Jacoub said Wednesday that if Johnson is granted a new trial on the revised charges or his sentence is altered to be closer in line with Kelly's, he would be eligible to be considered for parole immediately.
Assistant Berkshire District Attorney Joseph A. Pieropan said that while he understands Jacoub's position and appreciates the work he's done on his client's behalf, he believes Jacoub's argument would be better taken up with the Department of Correction or the parole board itself.
Judge Daniel A. Ford didn't issue a decision Wednesday, but did raise a concern that granting Johnson a new trial could open the DA's office up to a charge of vindictive prosecution.
Ford took the matter under advisement, but did not give a date by when his decision will be made.