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SJC-12364

COMMONWEALTH vs. MICHAEL WALTERS.

Bristol. December 4, 2017. - April 12, 2018.

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

Practice, Criminal, Sentence. Moot Question.

Indictments found and returned in the Superior Court 

Department on March 28, 2011.

Following review by this court, 472 Mass. 680 (2015), a 

resentencing hearing was had before E. Susan Garsh, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Ethan C. Stiles for the defendant.

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

Commonwealth.

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
2

because the evidence was insufficient. Commonwealth v. Walters, 

472 Mass. 680 (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 
3

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 

 

1 The Bay State Correctional Center at Norfolk was a small, 

general population, medium security State prison that stood on 

the grounds of the original dormitory buildings of the 

Massachusetts Correctional Institution at Norfolk. It was 

closed in December, 2015. A medium security facility holds 

inmates who may still pose a risk to security; however, they 

have demonstrated a willingness to comply with institutional 

rules and regulations. There are increased job and program 

opportunities at this level of security.
4

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 

 

2 The North Central Correctional Institution at Gardner is a 

medium security State prison that houses over 1,000 inmates.
5

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 

 

3 The defendant had served three years, five months, and 

twenty-nine days at the date of his resentencing.

4 The defendant also argues that this time difference may be 

even greater based on "good time" earned. We need not address 

the accuracy of his calculations in light of the result we reach

because it is clear that his probation date would be affected 

regardless of any time earned.

5 By the date of his resentencing, the defendant had been in 

State prison for more than three years. Because the entire 

sentence was dated nunc pro tunc to June 12, 2012, the perjury 

sentence of from two to three years in State prison began

approximately in December, 2014, after the two and one-half year 

sentences for criminal harassment and the restraining order

violation (first count) had been served. As a result, the 

defendant remained in State prison until December 7, 2016, when 

he was released to begin his probation. He served a total of 

four years, five months, and twenty-five days in State prison.
6

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 (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 (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 (1984). This court will review a 

sentence only to determine if it is illegal or unconstitutional.
7

Commonwealth v. Molino, 411 Mass. 149, 155 (1991). See 

Commonwealth v. White, 436 Mass. 340, 345 (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 (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 (1995). See Goetzendanner v. Superintendent, Mass.

Correctional Inst., Norfolk, 71 Mass. App. Ct. 533, 537 (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 (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 (2014) (sentence 
8

illegal where sentencing judge failed to impose global 

positioning system monitoring on defendant as required by 

statute); Commonwealth v. Cowan, 422 Mass. 546, 548 (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 

statue. See McGuinness, 421 Mass. at 475 (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 (2005) ("split sentence" was legal because 
9

law making it illegal did not take effect until after murder 

conviction); Commonwealth v. White, 436 Mass 340, 345 (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. In Brown, the defendant was 

convicted on three indictments in Middlesex County and five 

indictments in Suffolk County. Id. at 719. The sentences for 

the Suffolk convictions were to commence "from and after" the 

sentences for the Middlesex convictions. Id. All Middlesex 

convictions were subsequently set aside. Id. The Commissioner

of Correction argued that because the Middlesex judgments were 

"voidable" and not "void," they were in "full force and effect" 

until they were reversed, and the defendant's Suffolk sentences 

should begin on the date of the reversal. Id. at 720. We held 

that regardless of whether the Middlesex convictions were "void 

or voidable," the Suffolk sentences should be moved forward and 

made to run from the date of the imposition of the reversed 

convictions and not from the date of reversal. Id. at 723.

There, the defendant would have served "dead time"6 if his 

 

6 "Dead time" in this context is "time served under an 

invalid sentence for which no credit is given." Gardner v. 

Commissioner of Correction, 56 Mass. App. Ct. 31, 34 n.5 (2002).
10

remaining sentences had not been determined to be nunc pro tunc 

to the original sentencing date. Id. at 721.

The defendant argues that, according to our holding in 

Brown, all sentences deemed to commence "from and after" an 

earlier invalid sentence must be held to commence when both 

sentences were originally imposed. However, the defendant's 

reading of Brown is too broad. Our holding in Brown is limited 

to cases in which the defendant would have served dead time.

Gardner v. Commissioner of Correction, 56 Mass. App. Ct. 31, 34-

35 (2002) (Brown and Manning v. Superintendent, Mass. 

Correctional Inst., Norfolk, 372 Mass. 387 [1977], did not 

"establish a bright-line rule" that could be applied to all 

"from and after" sentences that lose their anchor sentence).

See Wolcott, petitioner, 32 Mass. App. Ct. 473, 477 (1992) ("the 

rationale of [Brown and Manning] is that a prisoner should not 

serve 'dead time' but should receive credit as matter of right 

for time served under an erroneous conviction"). In Brown, we 

emphasized that the avoidance of dead time was crucial to the 

decision, saying, "We think this is the better and more humane 

view, for only in this way can a prisoner receive credit, not as 

a matter of grace, but as of right, for time served under an 

erroneous conviction." Brown, 336 Mass. at 721. See Manning, 

supra at 396-397 ("A prisoner should not be penalized or 

burdened by denial of a credit simply because he had 
11

successfully appealed [from] a criminal conviction. . . . The 

result we reach neutralizes the effect of the erroneous . . . 

sentences on the valid . . . sentence, and causes the plaintiff 

to serve no more and no less than he should pursuant to the 

[valid] sentence").

Here, the defendant does not face the potential for dead 

time because only one of his original convictions was vacated.

He was therefore serving the concurrent sentences on two 

standing convictions until the "from and after" sentence for 

perjury began. Similar to the defendant in Gardner, the 

defendant here was credited for all the time he had served, and 

Brown is not controlling in this instance.

A dependent relationship exists between the different 

components of a sentencing scheme. See, e.g., Commonwealth v. 

Parrillo, 468 Mass. 318, 321 (2014) (defendant's community 

parole supervision for life [CPSL] sentence may have played part 

in judge's over-all concept of sentencing); Commonwealth v. 

Cumming, 466 Mass. 467, 472 (2013) ("It would not be possible to 

sever the CPSL requirement without fundamentally altering that 

judge's original intent"); Commonwealth v. Leggett, 82 Mass. 

App. Ct. 730, 735 (2012), citing Commonwealth v. LeBeau, 451 

Mass. 244, 245, 263 (2008) ("The components of the scheme work 

in combination, not isolation. . . . The subtraction of one or 

more of the scheme's interdependent elements may disrupt its 
12

intended proportions and purposes, and warrant its entire 

reconstruction within statutory limits by the sentencing judge 

or a successor").

Although an anchor sentence may have been vacated and 

therefore no longer functions as a punishment for the defendant, 

the anchor sentence still provides insight regarding the 

original sentencing judge's intent when punishing multiple 

crimes. Wolcott, petitioner, 32 Mass. App. Ct. at 477, quoting 

Watson v. United States, 174 F.2d 253, 254 (D.C. Cir. 1948)

("so-called 'anchor sentences' if reversed are not effective as 

an agency of punishment," and "they may be considered 'to 

evidence the intention of the court in respect of connected 

sentences'"). In cases where a sentencing scheme is truncated 

by a decision to vacate a conviction, "the literal language of 

the trial judge is less significant than the entire sentencing 

structure as a whole." Wolcott, petitioner, supra at 478.

In the instant case, we have the benefit of analyzing both

the anchor sentence and the intention of the judge. The 

sentencing structure distinguished between the crimes that are 

victim-centered and the two convictions of perjury; the victimcentered sentences ran concurrently, and once they were served, 

the perjury sentences were to begin "from and after." Further, 

the judge voiced her intention of differentiating between the 

victim-centered crimes of stalking, harassment, and G. L. 
13

c. 209A violations and the perjury crimes.7 Once the stalking 

conviction was overturned, the judge simply sought to maintain 

this distinction by denying the defendant's request to deem the 

perjury sentence as time served. The judge carefully considered 

the impact of the sentencing scheme when she chose to impose the 

entire sentence nunc pro tunc as if it had been imposed on June 

12, 2012, and it was within her discretion to do so.

The judge had discretion to determine the resentencing 

structure as long as she did not add additional time to the 

original, lawfully imposed sentence. See Cumming, 466 Mass. at

473-474 (judge may not restructure sentence in way that 

increases aggregate punishment imposed under original sentence).

Under the defendant's original sentencing scheme, he would have 

served from five to seven years of incarceration and five years 

of probation after all incarceration. After resentencing, the 

 

7 During the resentencing hearing, the judge said: "The 

[c]ourt in doing its sentencing structure grouped, in effect, 

stalking, harassment, and [G. L. c.] 209A because they related 

to acts committed with domestic abuse, and the [c]ourt imposed 

sentences on those that were concurrent. The [c]ourt 

intentionally did not impose a perjury sentence that was 

concurrent because the [c]ourt deems that to be a crime 

different in nature and requiring independent punishment, and 

therefore, imposed an on and after sentence on that."
14

defendant served approximately four and one-half years of 

incarceration.8

The defendant's resentencing scheme is neither illegal nor 

unconstitutional; therefore, the decision of the Superior Court 

judge is affirmed.

So ordered.

 

8 The defendant is currently serving five years of 

probation.