NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

09-P-1292 Appeals Court

11-P-973

COMMONWEALTH vs. WAJAHAT Q. MALICK

(and a companion case1).

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 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 

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.