Argued October 1, 2013
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.
Present: Graham, Sikora, & Hanlon, JJ.
[14 N.E.3d 340] 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 thief 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) 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.
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 [14 N.E.3d 341] 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 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 ). 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 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 fif-
teen 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.
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 [14 N.E.3d 342] 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.
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