Commonwealth v. Malick , 86 Mass. App. Ct. 174 ( 2014 )

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09-P-1292 Appeals Court
11-P-973
COMMONWEALTH vs. WAJAHAT Q. MALICK
(and a companion case 1).
No. 09-P-1292.
Plymouth. October 1, 2013. - August 25, 2014.
Present: Graham, Sikora, & Hanlon, JJ.
Practice, Criminal, Appeal, Appellate Division, Probation,
Restitution, Sentence. Restitution.
Indictments found and returned in the Superior Court
Department on March 26, 1991.
A proceeding for revocation of probation was heard by
Jeffrey A. Locke, J., and a motion to revise and revoke sentence
was considered by him.
Michael J. Traft for the defendant.
Thomas E. Bocian, Assistant Attorney General, for the
Commonwealth.
SIKORA, J. These appeals, consolidated for briefing and
decision, arrive after a long and tortuous procedural history.
1
The companion case parties are the same.
2
They present questions of sentencing. One of them requires us
to consider the purposes of restitution as a criminal law
sanction.
In 1993, the defendant, Wajahat Q. Malick, pleaded guilty
to nine indictments charging him with an elaborate scheme of
larceny and embezzlement in the course of his employment as the
financial comptroller of a substantial automobile dealership.
The plea judge adjudicated him a common and notorious thief 2 and
imposed a prison term of from eighteen to twenty years. Upon
related counts the judge added a consecutive sentence of from
twelve to fifteen years suspended on condition of successful
performance of a ten-year period of probation. A primary
condition of probation was the accomplishment of restitution to
the dealership or its owner, Helmut Schmidt. After a lengthy
hearing, the plea judge set the restitution figure at
$1,016,714.16. He placed six other related indictments on file.
After approximately ten years of incarceration (1993 to
2003), the defendant began the probationary term. Approximately
five years later, a second judge (probation judge) 3 found that
the defendant, who had paid about $291,700 in restitution, or
2
General Laws c. 266, § 40, provides in pertinent part that
"whoever is convicted at the same sitting of the court . . . of
three distinct larcenies, shall be adjudged a common and
notorious thief, and shall be punished by imprisonment in the
state prison for not more than twenty years or in jail for not
more than two and one-half years."
3
The plea judge had retired.
3
less than thirty percent of the amount owed, had obtained a
mortgage loan under a different name, was concealing assets, and
was not making a good faith effort to achieve restitution. In
2009, the judge revoked probation and imposed the suspended
sentence of from twelve to fifteen years. 4
Meanwhile the dealership and Schmidt had pursued civil
claims against banks allegedly negligent or reckless in their
tolerance of the defendant's deception. The civil litigation
was still pending at the time of the revocation of probation in
2009. It later resulted in a Superior Court damages verdict,
judgment, and appellate affirmance, covering fully the losses
and restitutional amount assessed against the defendant.
Because the judge premised revocation of probation in part upon
the victim's then uncompensated loss, we remand the case to the
judge for further consideration in light of that consequence and
with some discussion of his alternatives.
In a companion appeal, the defendant contends that the
probation judge wrongly denied his motion in 2011 to reconsider
an earlier, timely filed, motion to revise or revoke the
suspended twelve-to-fifteen year sentence. He argues that the
plea judge at the time (1996, when he denied the motion) had
lacked evidence supporting revision or revocation and newly
4
The judge stayed execution of the suspended sentence for
the duration of the present appeal.
4
discovered by the defendant between 2009 and 2011. For multiple
reasons we reject that contention and affirm the judge's denial
of the proposed motion to revise or revoke the sentence.
I. Restitution-based appeal. A. Background. 5 A detailed
account of the defendant's offenses appears in Bank of America,
N.A. v. Prestige Imports, Inc., 75 Mass. App. Ct. 741, 742-747
(2009) (Prestige I). 6 One element of the "sophisticated and
complex" scheme, id. 742, extending from 1988 to 1990
illustrated his involvement of banks in a process of
embezzlement from the dealership, Prestige Imports, Inc.
(Prestige). During 1990 he presented a series of nine checks
signed by Schmidt and payable to South Shore Bank (SSB). Id. at
746. Schmidt intended the checks to pay down a loan from SSB to
Prestige. Ibid. Upon presentment of each check to SSB, Malick
requested and received from bank personnel a treasurer's check
in the same amount payable to South Weymouth Savings Bank (South
Weymouth). Ibid. He then deposited the treasurer's check in
his own checking account at South Weymouth. Ibid. Eventually,
SSB discovered the fraud, seized the funds in Prestige's
accounts, foreclosed on the dealership, and sold the collateral
5
We will refer only summarily to a number of procedural
episodes occurring over the twenty-year train of litigation but
having no significance for the issues presently before us.
6
Bank of America, N.A., is the successor in interest to
SSB.
5
securing the loan. The collateral included the dealership's
vehicles and Schmidt's home. Id. at 747.
The defendant's plea of guilty in March of 1993 to nine
counts of larceny of money resulted in his enhanced conviction
as "a common and notorious thief" and in the committed sentence
of from eighteen to twenty years. On pleas of guilty to two
counts of larceny of motor vehicles from the dealership, the
judge imposed concurrent suspended sentences of from twelve to
fifteen years, from and after the committed sentence,
conditioned on the probationary restitution over a ten-year
span. As noted, the judge placed an additional six related
indictments on file. 7
After ten years' service of the primary sentence, the
defendant began probation and restitution in late 2003. During
the ensuing five years, multiple hearings addressed the
defendant's requests for reduction of the restitution amount and
the probation department's suggestions of surrender. The
defendant achieved several reductions. In late 2005, a judge
set his monthly obligation at $400. After further hearings
concerning the defendant's assets and employment efforts, the
7
The prosecutor and the defendant had not reached agreement
upon a recommended sentencing scheme. The defendant made
multiple challenges to the aggregate sentences. None succeeded.
See Commonwealth v. Malick, 41 Mass. App. Ct. 1119 (1996);
Commonwealth v. Malick, 46 Mass. App. Ct. 1102 (1998);
Commonwealth v. Malick, 48 Mass. App. Ct. 1107 (1999).
6
probation judge in March of 2008 set the payment rate at $120
per week and required semiannual financial statements.
In July of 2008, the probation department moved for
revocation of probation for failure to make payments and at an
ensuing hearing submitted information that the defendant, under
a different name, had applied for and obtained a mortgage loan
and that the documents in the loan application file listed
assets of approximately $150,000 in a 401(k) account and annual
income of $93,000. 8 The probation judge found that the defendant
used the false name to conceal from the court and the probation
department substantial undisclosed assets and that he did so to
avoid his restitution obligations. He estimated that the
defendant had paid $291,714 in restitution, or somewhat less
than thirty percent of the court ordered amount; and that
Prestige and Schmidt were unlikely to receive additional
compensation. "In the end Mr. Schmidt loses whatever hope he
may have had that this Court could assist him in recovering the
embezzled funds; but I suspect over the last eighteen years, Mr.
Schmidt has found that hope to dim year by year as the defendant
8
The mortgage loan was based on the value of the property
and not on the assets or income of the defendant. The
defendant's counsel represented to the court that the defendant
used the proceeds to pay tax liens and to enable a payment of
$335,000 made to Schmidt in settlement of litigation in
Connecticut. The defendant's attorney on appeal contends that
the loan issued on the basis of lending practices at that time
(prior to the 2009 financial crisis) and did not reflect hidden
assets or a wilful failure to pay restitution.
7
continued to fail to make meaningful payments." 9 As his options,
the judge weighed (1) termination of probation with no further
consequences, (2) reprobation, or (3) revocation with imposition
of the suspended sentence ("I have no discretion to set a lower
term of imprisonment"). He chose the final option and lifted
the order of restitution.
Meanwhile, as a consequence of the decision in Prestige I.,
75 Mass. App. Ct. at 772, and subsequent new trial, a Superior
Court jury trial in 2011 resulted in a finding that SSB
personnel had acted with conscious and deliberate indifference
to Malick's treasurer's check scheme against Prestige, and in an
award of damages covering and exceeding Malick's unpaid
restitution. 10 On August 6, 2013, this court affirmed the
judgment by an unpublished memorandum and order pursuant to its
rule 1:28. Bank of America, N.A. v. Prestige Imports, Inc., 84
Mass. App. Ct. 1106 (2013) (Prestige II). On October 3, 2013,
the Supreme Judicial Court denied further appellate review, see
466 Mass. 1106.
9
At this point, in January of 2009, Schmidt's civil claims
against SSB were pending. The judge added a possible reference
to them, but could not know of any outcome. "Unfortunately, on
the state of the case now, the Court must leave it to Mr.
Schmidt to pursue whatever other remedies he may have to seek
recompense for the theft in this case."
10
A reference in the record indicates that statutory
interest and multiple damages brought the Superior Court
judgment to approximately $6.7 million.
8
B. Analysis of the restitution appeal. The defendant
argues that the execution of the suspended sentence has become
unwarranted because Prestige and Schmidt have now achieved civil
judgments exceeding the losses caused by the defendant's
larceny. See Prestige I, 75 Mass. App. Ct. at 772; Prestige
II, 84 Mass. App. Ct. 1106. He proposes that any enforcement of
the original restitution order would inflict gratuitous
punishment and approve double recovery for a single harm.
1. Standard of review. "How best to deal with the
probationer is within the judge's discretion." Commonwealth v.
Pena, 462 Mass. 183, 187 (2012), quoting from Commonwealth v.
Durling, 407 Mass. 108, 111 (1990). Therefore the test on
review is abuse of discretion. "There are two components to the
decision to revoke probation: a retrospective factual question
whether the probationer has violated a condition of probation
and a discretionary determination by the judge whether violation
of a condition warrants revocation of probation." Commonwealth
v. Faulkner, 418 Mass. 352, 365 n.11 (1994). "Whether it is a
desirable rule or not," revocation of probation requires
execution of a suspended sentence "if the time has expired
within which the sentence may be revised or revoked" under
Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979). 11 Commonwealth v.
11
The mandate is statutory; G. L. c. 279, § 3, provides in
pertinent part that, if the "suspension [of a sentence] is
9
Holmgren, 421 Mass. 224, 228 (1995). See Commonwealth v.
Bruzzese, 437 Mass. 606, 614 (2002).
2. Authority for criminal restitution. The judge's
comments at the January, 2009, revocation hearing reflected a
belief that Schmidt and Prestige had little prospect of recovery
of the losses caused by the defendant. He could not know the
likelihood of any result in the complex civil litigation. See
especially Prestige I, 75 Mass. App. Ct. at 743, 772. The
decision to revoke probation necessarily triggered a long period
(from twelve to fifteen years) of imprisonment. The timing of
events deprived the judge of full knowledge of all potentially
material circumstances of his decision. See McHoul v.
Commonwealth, 365 Mass. 465, 469-470 (1974) ("Although the
continuation of probation is a matter of discretion, probation
may not be revoked arbitrarily or without a reason"), and cases
cited; Commonwealth v. Phillips, 40 Mass. App. Ct. 801, 804
(1996) (same). In these significant and unusual circumstances
of a heavy sentence premised upon an expectation now superseded,
we conclude that the judge may wish to reconsider the
revoked, the sentence shall be in full force and effect"
(emphasis supplied).
10
alternatives. 12 We therefore vacate the order revoking probation
and remand the revocation decision to the judge's discretion. 13
The question remains whether on remand the judge may revoke
the defendant's probation for failure to make restitution; or
whether the recovery of civil damages by Prestige and Schmidt
excuses the defendant's nonperformance and bars revocation. For
several reasons we conclude that the judge retains an array of
alternatives including revocation.
As a criminal sanction, restitution constitutes "money or
services which a court orders a defendant to pay or render to a
victim as part of the disposition." G. L. c. 258B, § 1, as
appearing in St. 1996, c. 450, § 251. 14 "[C]onsonant with the
12
At oral argument the Commonwealth acknowledged that
recovery of the compensatory civil damages award by Prestige and
Schmidt (then pending on appeal) would warrant remand of the
revocation order to the probation judge for reconsideration.
13
Our vacatur addresses only the revocation order; it does
not touch the existence and the duration of the suspended
sentence, still fixed by G. L. c. 279, § 3.
14
The concept of restitution for victims of crime has
ancient roots. Holmes observed that in Roman law, Germanic
custom, and earliest English cases, reparations from the
wrongdoer served to "buy off" the vengeance of the victim or his
allies. Holmes, The Common Law 15-16, 31 (Harvard Univ. Press,
1963 ed.).
The Babylonians, Hebrews, Greeks, Romans, Germans, and
English all required offenders to make payments to injured
parties. See Jacob, "The Concept of Restitution: An Historical
Overview," in Restitution in Criminal Justice 34-36 (1975);
Kelly, Where Offenders Pay for Their Crimes: Victim Restitution
and Its Constitutionality, 59 Notre Dame L. Rev. 685, 686
11
public policy of the Commonwealth," Novelty Bias Binding Co. v.
Shevrin, 342 Mass. 714, 717 (1961), restitution can function as
"an appropriate consideration in a criminal sentencing."
Commonwealth v. Nawn, 394 Mass. 1, 6 (1985). "[R]estitution in
whole or in part, or the promise thereof, by a repentant
defendant may often be an important factor in the disposition of
a criminal case . . . ." Novelty Bias Binding Co. v. Shevrin,
supra.The authority to order restitution derives from a judge's
power to order conditions of probation under G. L. c. 276, § 87
(general authorization to Superior, District, and Juvenile
Courts); G. L. c. 276, § 87A (authorizing placement in
rehabilitative programs and community service programs); and
G. L. c. 279, § 1 (authorizing the suspension of a sentence and
placement on probation on discretionary terms of duration and
conditions). Commonwealth v. Denehy, 466 Mass. 723, 737 (2014).
See also G. L. c. 258B, § 3(o), inserted by St. 1995, c. 24,
§ 5, authorizing victims to request restitution as an element of
final disposition and to obtain assistance from the prosecutor
in the documentation of losses; and G. L. c. 211E, § 2(9),
inserted by St. 1996, c. 12, § 9, enumerating as one of the
purposes of the State sentencing commission the recommendation
(1984). See generally Laster, Criminal Restitution: A Survey of
Its Past History and an Analysis of Its Present Usefulness, 5 U.
Rich. L. Rev. 71, 71-80 (1970).
12
of policies making "offenders accountable to the community . . .
through community service, restitution, and a range of
intermediate sanctions" (emphasis supplied).
In addition to situations of restitution compelled by
statute, a sentencing judge retains discretion to order
restitution as an element of his authority to set conditions of
probation. Commonwealth v. Nawn, 394 Mass.at 8;. Commonwealth
v. McIntyre, 436 Mass. 829, 833 (2002). "[T]he scope of
restitution is limited to 'loss or damage' [which] is causally
connected to the offense and [which] bears a significant
relationship to the offense." Commonwealth v. McIntyre, supra
at 835 (2002), quoting from Glaubius v. State, 688 So. 2d 913,
915 (Fla. 1997). See Commonwealth v. Rotonda, 434 Mass. 211,
220-221 (2001). That standard is a "broad test" requiring a
comprehensive assessment of the circumstances "surrounding the
crime, not merely those facts establishing the elements of the
crime." Commonwealth v. Denehy, 466 Mass. at 739. "The
Commonwealth bears the burden of proving both a causal
connection and the amount of the loss by a preponderance of the
evidence." Id. at 740. See Commonwealth v. Casanova, 65 Mass.
App. Ct. 750, 754-757 (2006) (failure of Commonwealth to prove a
causal connection between defendant's assault and battery and
withdrawal from college and forfeiture of tuition payment). As
a matter of reasonable incidental authority enabling fair
13
payment plans and effective monitoring, the judge may require
the probationer to submit financial statements and installment
reports as information of his ability to make payments. See
Commonwealth v. Nawn, 394 Mass. at 8-9.
3. Purposes of criminal restitution. Restitution supports
the four fundamental purposes of sentencing: incapacitation,
deterrence, retribution, and rehabilitation. Commonwealth v.
McIntyre, 436 Mass. at 833. It "also serves the ancillary
purpose of compensating the victim for economic losses." Id. at
833 n.2. See Commonwealth v. Rotonda, supra. Our court, too,
has characterized "the purpose of restitution [as] . . . not
only to compensate the victim for his or her economic loss tied
to the defendant's conduct, but also to make the defendant pay
for the damage [which] he or she caused as a punitive and
rehabilitative sanction." Commonwealth v. Williams, 57 Mass.
App. Ct. 917, 918 (2003). The United States Supreme Court has
struck the same theme.
"The criminal justice system is not operated primarily for
the benefit of victims, but for the benefit of society as a
whole. Thus, it is concerned not only with punishing the
offender, but also with rehabilitating him. Although
restitution does resemble a judgment 'for the benefit of'
the victim, the context in which it is imposed undermines
that conclusion. . . . [T]he decision to impose
restitution generally does not turn on the victim's injury,
but on the penal goals of the State and the situation of
the defendant."
Kelly v. Robinson, 479 U.S. 36, 52 (1986).
14
See United States v. Petersen, 98 F.3d 502, 510 (9th Cir. 1996)
(criminal restitution is a means of achieving penal objectives
such as deterrence, rehabilitation, or retribution as well as
compensation). See also United States v. Hairston, 888 F.2d
1349, 1355 (11th Cir. 1989) (restitution is a criminal penalty,
not a civil matter; however, any settlement with the victim in a
civil case should be one of the factors considered in forming
the restitution order).
Commentators, too, have identified the penitential
consequences of restitution.
"Restitution goes beyond recovery and is designed to
instill responsibility in criminal offenders. Unlike other
forms of penal sanctions, restitution forces the offender
to answer directly for the consequences of his or her
actions. Restitution attempts to develop in the offender a
degree of self-respect and pride for having righted a wrong
committed."
24 C.J.S. Criminal Law § 2475, at 608-609 (2006). As scholarly
agreement, see, e.g., Note, Victim Restitution in the Criminal
Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 941
(1984) ("restitution is an appropriate and effective criminal
sanction that promotes the criminal law's goals of
rehabilitation, deterrence, and retribution"); Harland, Monetary
Remedies for the Victims of Crime: Assessing the Role of the
Criminal Courts, 30 U.C.L.A. L. Rev. 52, 119-128 (1982).
4. Application. In appropriate cases, then, a
restitutional order may have the capacity to teach the
15
perpetrator the cost of his offense, to inhibit recidivist
conduct, to impose the character-building benefits of honest
work, and to provide the victim and society with some degree of
retributive satisfaction. Because the offender's probationary
freedom may depend upon his effective performance, those
desirable possibilities can be realistic. We therefore conclude
that the recovery of damages from the bank by Prestige and
Schmidt does not preclude revocation of the defendant's
probation. The penal objectives of deterrence, retribution, and
rehabilitation remain open for consideration by the judge. Even
full collateral compensation of a victim may leave the purposes
of probationary restitution unfulfilled and the noncompliant
probationer exposed to the discretionary sanctions of the
sentencing court. 15,16
15
Certain Federal legislation maintains a Federal
probationer's duty of restitution after collateral recovery by
the victim and attempts to prevent redundant compensation.
Under the Federal Mandatory Victim Restitution Act of 1996
(MVRA), the victim must return any compensation received from a
third party after the defendant has made full restitution. 18
U.S.C. § 3664(j)(1)(2) (2012). The policy is that a victim's
recovery in separate civil proceedings does not offset, or
reduce, the restitutional amount imposed in the criminal case.
Goodwin, Federal Criminal Restitution § 12:7-12:9 (2013).
16
We have considered and rejected the defendant's alternate
contention that restitution is available only for specific
statutory offenses and that the plea judge unlawfully fastened
the large restitutional condition onto the smaller property
crimes of larceny of two automobiles from the dealership. The
law provided the judge with flexible authority to attach the
condition of restitution to an offense causally and
16
5. Judge's probationary alternatives. Our analysis leaves
the judge with expansive discretion. It allows, but does not
require, revocation of probation and the accompanying imposition
of the suspended sentence. It is open to the judge, also, to
take no action, or to reprobate upon new conditions, or to
terminate probation. See Commonwealth v. Goodwin, 458 Mass. 11,
16-17 (2010); Commonwealth v. Al Saud, 459 Mass. 221, 226
(2011). Cf. Dist. Ct. R. for Probation Violation Proceedings
7(d)(i-iii) (2000). "Where a defendant has violated a condition
of his probation, a judge's authority to modify or add
conditions of probation is nearly unlimited should the judge
decide not to imprison the defendant but to return him to
probation." Commonwealth v. Goodwin, supra at 17.
Alternatives, other than revocation of probation and
execution of the suspended sentence, are available. The record
indicates that the judge may have revoked the defendant's
significantly related to the loss in the total circumstances of
the connected crimes. He could and did survey Malick's entire
program of larceny from the dealership, of which the
misappropriation of the automobiles was a part, and employ those
convictions as vehicles for restitution toward the more costly
but related offenses within the scheme. The specific
restitutional loss need not flow directly from the elements of
the offense on which the defendant was being sentenced. The
permitted "nexus" or scope of restitution extends beyond the
specific harm from the elements of the particular offense
underlying the sentence. The restitution need only bear a
significant causal relationship to the crime. Commonwealth v.
McIntyre, 436 Mass. at 833-836. Commonwealth v. Denehy, 466
Mass. at 739-740.
17
probation, at least in part, because he concluded that the
defendant had "willfully frustrated" and "willfully obstructed"
the probation department's efforts to collect restitution "by
concealing assets and by using a false identity." If true,
those actions would provide a basis for a judgment of criminal
contempt. See Mass.R.Crim.P. 44, 378 Mass. 920 (1979); Sodones
v. Sodones, 366 Mass. 121, 130 (1974) ("purpose of criminal
contempt . . . is punitive: its aim is to vindicate the court's
authority and to punish the contemnor for doing a forbidden act
or for failing to act as ordered") (emphasis supplied); Vizcaino
v. Commonwealth, 462 Mass. 266, 273 (2012).
Finally, the original sentencing judge placed six
indictments and guilty pleas on file. "[T]he common-law rule,
unaltered since its creation, [is] that the court retains the
ability, at any time, to remove [an] indictment from the file."
Commonwealth v. Simmons, 448 Mass. 687, 696 (2007). Thus the
judge would also have discretion to sentence the defendant on
one or more of the filed indictments. In that process he "must
consider the over-all scheme of punishment employed by the
[plea] judge." Id. at 699. 17
17
The established fair hearing process -- e.g., opportunity
to cross-examine and to present rebuttal evidence -- would apply
to a reimposition of a restitutional condition. Commonwealth v.
Nawn, 394 Mass. at 6-8. Commonwealth v. Denehy, 466 Mass. at
740.
18
II. Appeal from denial of motion to revise or revoke. A.
Background. In reaction to the revocation of probation and
imposition of the suspended sentence in January of 2009, the
defendant pursuant to Mass.R.Crim.P. 29 filed, within sixty days
of the imposition of the sentence, a motion to revise or revoke
the sentence and requested that "no immediate action be taken on
the motion." In accordance with G. L. c. 278, § 28A, he pursued
an appeal from the sentence to the Appellate Division of the
Superior Court. In June of 2010, the Appellate Division
affirmed the sentence and dismissed the appeal. In April of
2011, the defendant filed a further motion to revise or revoke
upon the grounds of newly discovered evidence unknown to the
plea judge at the time of the disposition of an original motion
to revise or revoke in 1996. The proposed newly discovered
evidence consisted of two letters written in July of 1994 by
counsel for Prestige and Schmidt in the civil litigation and
reporting that attorney's "distinct impression" that the plea
judge would favorably consider the defendant's then pending
motion to revise or revoke his sentences if Malick were to show
"cooperat[ion] in the civil litigation." In support of the 2011
motion, the defendant submitted affidavit and deposition
materials as evidence of cooperation in the civil actions.
If the judge were to reinstate revocation of probation, the
due process requirements of Commonwealth v. Durling, 407 Mass.
at 113, would apply.
19
The probation judge denied both motions and found the
supporting factual representations to be "uncorroborated
assertions" unworthy of a hearing. This appeal followed.
B. Analysis. The standard of review of the disposition of
a motion to revise or revoke is abuse of discretion. See
Commonwealth v. Derry, 26 Mass. App. Ct. 10, 13 (1988). In this
instance, multiple grounds defeat the appeal from the denials of
the motions. We shall assume, without deciding, that the
motions were timely. 18
First, it is firmly settled that "a judge may not take into
account conduct of the defendant that occurs subsequent to the
original sentencing" in ruling on a motion to revise or revoke
(emphasis supplied). Commonwealth v. Barclay, 424 Mass. 377,
380 (1997), and cases cited. Here, the entire grounds submitted
by the defendant related exclusively to conduct after the
original 1993 sentencing (alleged cooperation in the ensuing
civil litigation). As a matter of law, the judge possessed no
discretion to consider the subsequent conduct.
Second, an appeal to the Appellate Division of the Superior
Court functions as an exclusive and final challenge to a
sentence. "If the appellate division decides that the original
18
The defendant filed the 2009 motion within sixty days of
the imposition of the suspended sentences. The 2011 motion has
the character of a motion to reconsider a long past motion to
revise or revoke.
20
sentence or sentences should stand, it shall dismiss the appeal.
Its decision shall be final." G. L. c. 278, § 28B, second par.,
as appearing in St. 1968, c. 666, § 2. Callahan v.
Commonwealth, 416 Mass. 1010, 1011 (1994). As a matter of law,
the Appellate Division's affirmance of the sentence precluded
any separate relief by motions to revise or revoke under
Mass.R.Crim.P. 29.
Third, if the merits were properly open, we would affirm
the probation judge's rulings as grounded in sound discretion.
The only basis offered for relief was seventeen-year old
correspondence relating a lawyer's "impression" about a judge's
state of mind concerning a contingency (Malick's cooperation in
the civil cases). That information provided no reliable ground
for either a hearing or a ruling upon revision or revocation of
the original sentencing scheme.
Conclusion. For these reasons we (1) vacate the order
revoking probation and remand the issue of revocation to the
probation judge for the exercise of his broad discretion in
light of the civil damages recovery by the victims, and (2)
affirm the orders denying the motions to revise or revoke the
probation judge's sentencing order of January 22, 2009.
So ordered.