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09-P-1292                                              Appeals Court
11-P-973

                COMMONWEALTH vs. WAJAHAT Q. MALICK
                      (and a companion case 1).


                             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 thief 2 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.
