Commonwealth v. (And

• Decision Date: 25 August 2014
• Docket Number: Nos. 09–P–1292,11–P–973.,s. 09–P–1292
• Parties: COMMONWEALTH v. Wajahat Q. MALICK (and a companion case).
• Court: Appeals Court of Massachusetts

86 Mass.App.Ct. 174

14 N.E.3d 338

COMMONWEALTH

v.Wajahat Q. MALICK (and a companion case¹ ).

Nos. 09–P–1292

11–P–973.

Appeals Court of Massachusetts, Plymouth.

Argued Oct. 1, 2013.

Decided Aug. 25, 2014.

Michael J. Traft, Boston, for the defendant.

Thomas E. Bocian, Assistant Attorney General, for the Commonwealth.

Present: GRAHAM, SIKORA, & HANLON, JJ.

Opinion

SIKORA, J.

These appeals, consolidated for briefing and decision, arrive after a long and tortuous procedural history. 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 thief² 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 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 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, 917 N.E.2d 207 (2009) (Prestige I ).⁶ One element of the “sophisticated and complex” scheme, id. 742, 917 N.E.2d 207, 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, 917 N.E.2d 207. 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 securing the loan. The collateral included the dealership's vehicles and Schmidt's home. Id. at 747, 917 N.E.2d 207.

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 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 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, 917 N.E.2d 207, 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 WL 3983224 (2013) (Prestige II ). On October 3, 2013, the Supreme Judicial Court denied further appellate review, see 466 Mass. 1106, 996 N.E.2d 473.

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, 917 N.E.2d 207 ; 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, 967 N.E.2d 603 (2012), quoting from Commonwealth v. Durling, 407 Mass. 108, 111, 551 N.E.2d 1193 (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, 638 N.E.2d 1 (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. Holmgren, 421 Mass. 224, 228, 656 N.E.2d 577 (1995). See Commonwealth v. Bruzzese, 437 Mass. 606, 614, 773 N.E.2d 921 (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, 917 N.E.2d 207. 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, 312 N.E.2d 539 (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,...