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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 victim-

centered 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.
