Commonwealth v. Walters

• Decision Date: 04 December 2017
• Docket Number: SJC–12364
• Citation: 479 Mass. 277,94 N.E.3d 764
• Parties: COMMONWEALTH v. Michael WALTERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

479 Mass. 277

94 N.E.3d 764

COMMONWEALTH

v.Michael WALTERS.

SJC–12364

Supreme Judicial Court of Massachusetts, Bristol..

December 4, 2017.

April 12, 2018.

Ethan C. Stiles, Pembroke, for the defendant.

Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

CYPHER, J.

The defendant, Michael J. Walters, was convicted by a jury in the Superior Court of stalking, harassment, two counts of restraining order violations, and two counts of perjury. While he was serving his State prison sentence for stalking, that conviction was vacated by this court because the evidence was insufficient. Commonwealth v. Walters, 472 Mass. 680, 37 N.E.3d 980 (2015) ( Walters I ). As a result, the defendant was resentenced on the remaining convictions. At resentencing, the defendant requested that his perjury sentence be deemed "time served" because it was the only other sentence that could have been considered a State prison sentence. Rather than granting the defendant's request, however, the trial judge vacated the stalking sentence, consistent with our opinion in Walters I, and imposed the remaining sentences nunc pro tunc to the date of his original sentence. Consequently, the defendant served his sentences for criminal harassment and a restraining order violation—crimes that normally carry a sentence to a house of correction—in State prison. The defendant appealed from his resentencing on the ground that the structure of his resentencing scheme was illegal. Following the Appeals Court's dismissal of the defendant's case as moot, we granted further appellate review. We affirm the decision of the resentencing judge.

Background. 1. First trial and sentences. On June 12, 2012, the defendant was convicted of stalking, G. L. c. 265, § 43 (a ) ; criminal harassment, G. L. c. 265, § 43A (a ) ; two counts of restraining order violations, G. L. c. 209A, § 7 ; and two counts of perjury, G. L. c. 268, § 1. The trial judge sentenced the defendant to the following: on the charge of stalking, from three to four years in a State prison; on the charge of criminal harassment, two and one-half years in a house of correction, concurrent with the stalking sentence; on the charge of a restraining order violation (first count), two and one-half years in a house of correction, concurrent with the stalking sentence; on the charge of perjury (first count), from two to three years in a State prison on and after the stalking sentence; on the charge of a restraining order violation (second count), two and one-half years in a house of correction, suspended for five years with probation on and after all incarceration; and on the charge of perjury (second count), five years' probation on and after all incarceration. That day, the defendant's bail was revoked and he was transferred to a State prison, the Massachusetts Correctional Institution at Cedar Junction, where he began serving his stalking sentence, before being transferred to the Bay State Correctional Center¹ at Norfolk. In April, 2015, he was transferred to the North Central Correctional Institution at Gardner,² where he remained through resentencing and until he was released to begin probation.

2. Resentencing. On December 11, 2015, the stalking charge was vacated and dismissed, and the defendant was resentenced by the trial judge to the following: on the charge of criminal harassment, two and one-half years in a house of correction, nunc pro tunc to June 12, 2012; on the charge of a restraining order violation (first count), two and one-half years in a house of correction, nunc pro tunc to June 12, 2012, concurrent with the sentence for criminal harassment; on the charge of perjury (first count), from two to three years in a State prison on and after the criminal harassment sentence; on the charge of a restraining order violation (second count), two and one-half years in a house of correction, suspended for five years with probation on and after all incarceration; and on the charge of perjury (second count), five years' probation on and after all incarceration.

Discussion. 1. Mootness. The Commonwealth argues that the defendant's place of confinement is a moot issue because the defendant has already been released from prison. The defendant argues that the structure of his resentencing scheme ultimately determines when his probation will end. Therefore, had the resentencing judge granted his request—that his perjury sentence be deemed time served with the criminal harassment and G. L. c. 209A violation sentences having run concurrently—he would have been released from State prison on the date of his resentencing, December 11, 2015, after serving more than the maximum of his three-year sentence for perjury.³ Had the defendant been released on this date, his five-year probation period would end on December 11, 2020.⁴ However, because the resentencing judge denied the defendant's request and instead ordered that the entire sentencing scheme (minus the stalking sentence) be dated nunc pro tunc to June 12, 2012, the defendant was not released from prison until December 7, 2016.⁵ As a result, the defendant's probation will not end until December 7, 2021.

An issue only becomes moot once a defendant would no longer be personally affected by the resulting decision. See, e.g., Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703, 341 N.E.2d 902 (1976) ( "Ordinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome"). Because the defendant is currently serving the probation portion of his sentence, and the resentencing structure ultimately determines whether the defendant's probation ends in 2020 or 2021, the defendant has a stake in this court's decision. Therefore, the issue is not moot.

2. Resentencing. The defendant argues that his sentence was excessive and incongruous with the applicable statutes because he was forced to serve State prison sentences for crimes that only carried house of correction sentences. He also argues that his sentence was illegal because the resentencing judge did not properly apply our holding in Brown v. Commissioner of Correction, 336 Mass. 718, 147 N.E.2d 782 (1958), that, upon resentencing, all "from and after" sentences be dated nunc pro tunc to the original sentence.

Our review of criminal sentences is limited. Commonwealth v. Coleman, 390 Mass. 797, 804, 461 N.E.2d 157 (1984). This court will review a sentence only to determine if it is illegal or unconstitutional. Commonwealth v. Molino, 411 Mass. 149, 155, 580 N.E.2d 383 (1991). See Commonwealth v. White, 436 Mass. 340, 345, 764 N.E.2d 808 (2002) (applying test of illegality to determine whether resentencing scheme should be vacated).

"An ‘illegal sentence’ is one that is in excess of the punishment prescribed by the relevant statutory provision or in some way contrary to the applicable statute," Commonwealth v. Layne, 21 Mass. App. Ct. 17, 19, 483 N.E.2d 827 (1985), or is "premised on a major misunderstanding by the sentencing judge as to the legal bounds of his authority," Commonwealth v. McGuinness, 421 Mass. 472, 475, 658 N.E.2d 150 (1995). See Goetzendanner v. Superintendent, Mass. Correctional Inst., Norfolk, 71 Mass. App. Ct. 533, 537, 883 N.E.2d 1250 (2008) (defendant's sentences were within scope of permissible sentences under applicable statutes and were therefore not illegal).

A sentence is "in excess" of the prescribed punishment if the defendant is sentenced to any length of time beyond the maximum permitted by the violated statute. See Commonwealth v. McGhee, 472 Mass. 405, 427, 35 N.E.3d 329 (2015) (sentence of up to five years and one day was illegal because it exceeded maximum sentence of five years allowed by applicable statute). A sentence that contradicts the statutory provision in question, even where those contradictions favor the defendant, is also illegal. See Commonwealth v. Selavka, 469 Mass. 502, 505, 14 N.E.3d 933 (2014) (sentence illegal where sentencing judge failed to impose global positioning system monitoring on defendant as required by statute); Commonwealth v. Cowan, 422 Mass. 546, 548, 664 N.E.2d 425 (1996) (defendant's sentence was illegal because statute did not permit house arrest with electronic monitoring device to be substituted for incarceration in facility).

The defendant argues that his sentence was excessive because, after resentencing, he served his sentence for a misdemeanor in a State prison. He argues that a State prison is a place of more serious punishment than a house of correction, and he was therefore confined with more serious offenders. Similarly, the defendant asserts that his sentence is contrary to G. L. c. 265, § 43A (criminal harassment statute), because the statute mandates that the defendant be sentenced to a house of correction—in addition to or in lieu of a fine. However, serving the entirety of his house of correction sentence in a State prison was not illegal because it did not exceed the punishment prescribed by nor was it contrary to the violated statute. See McGuinness, 421 Mass. at 475, 658 N.E.2d 150 (sentence permitted by statutory law for offense committed not illegal).

The second reason an imposed sentence can be deemed illegal is if the resentencing judge premises that sentence on an error or misunderstanding of law. See, e.g., Commonwealth v. Azar, 444 Mass 72, 78–79, 825 N.E.2d 999 (2005) ("split sentence" was legal because law making it illegal did not take effect until after murder conviction); Commonwealth v. White, 436 Mass. 340, 345, 764 N.E.2d 808 (2002) (sentence was illegal because judge mistakenly believed she lacked authority to consider good conduct information offered).

The defendant argues that his sentence was illegal because the resentencing judge did not properly apply this court's holding in Brown, 336 Mass. 718, 147 N.E.2d 782. In Brown, the defendant was convicted on three indictments in ...