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SJC-12321

                  COMMONWEALTH   vs.   EDWIN PADUA.


                           March 2, 2018.


            Practice, Criminal, Sentence.   Moot Question.


     In 2000, Edwin Padua pleaded guilty to two counts of
threatening to commit a crime, and the charges were placed on
file at that time. In 2014, in connection with proceedings on a
subsequent probation violation, a judge in the District Court
brought the filed charges forward and sentenced Padua on them.
In an unpublished memorandum and order, the Appeals Court
determined that the charges had been properly placed on file and
then brought forward, but remanded the matter to give the
sentencing judge an opportunity to explain the basis for the
sentences he imposed. After the judge responded, the Appeals
Court issued an unpublished decision affirming the convictions
on the filed charges but vacating the sentences and remanding
for resentencing due to certain doubts it had concerning their
propriety. Commonwealth v. Padua, 90 Mass. App. Ct. 1123
(2016). We allowed Padua's application for further appellate
review.

     The sole issue before us is the proper disposition of the
appeal where the Appeals Court determined that the charges were
properly placed on file and then brought forward for sentencing,
but remained in doubt as to the propriety of the sentences
themselves.1 We reject Padua's suggestion that it was improper


    1
       Our order granting further appellate review did not
expressly limit the scope of review, but this is the only issue
that Padua presses in this court. See Moronta v. Nationstar
Mortgage, LLC, 476 Mass. 1013, 1014 n.2 (2016); 81 Spooner Rd.,
                                                                   2


to vacate the sentences without simultaneously vacating the
convictions. It is well established that an appellate court may
do so where it concludes that the defendant was properly found
guilty of an offense, but that the sentence was improper in some
respect. See, e.g., Commonwealth v. Penn, 472 Mass. 610, 628-
629 (2015) (remanding for resentencing after invalidation of
life sentence without possibility of parole for juvenile
convicted of murder in first degree); Commonwealth v. Williams,
456 Mass. 857, 875 (2010) (remanding for resentencing where
sentences exceeded statutory maximum); Commonwealth v. Pillai,
445 Mass. 175, 194 (2005) (remanding for resentencing after
invalidation of term of lifetime community parole supervision).
Although, as we shall explain, remanding for resentencing was
improper in this case, it is a valid disposition as a general
matter. Nothing in Commonwealth v. Simmons, 448 Mass. 687
(2007), is to the contrary: the fact that "a judgment of
conviction does not enter unless sentence is imposed," id. at
688 n.2, in no way requires an appellate court to vacate a fair
and just conviction merely because the sentence is incorrect.

     Even though an appellate court generally may remand a case
for resentencing while affirming the underlying conviction, it
was nevertheless improper to do so in the particular
circumstances of this case. While the case was pending in the
Appeals Court, Padua finished serving his sentences, rendering
moot any error therein. This would not warrant dismissing the
appeal entirely, as Padua continued to have an interest in
obtaining relief from the convictions themselves. However, once
the convictions were affirmed, no purpose could be served by
remanding the matter for resentencing, because no effective
relief could be granted to Padua. See Commonwealth v. Mattier
(No. 2), 474 Mass. 261, 277 (2016) (vacating one of three
convictions, but not remanding remainder for resentencing "where
[defendant's] sentence is unlikely to be affected by our
decision"). Accordingly, the proper disposition of this case is
simply to affirm the judgments of the District Court, without
remand for resentencing.2



LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 693
n.3 (2012).
     2
       We express no view as to whether the sentences imposed by
the judge were improper in any respect, or as to whether the
Appeals Court was right to doubt their propriety. We simply
conclude that where the sentences were fully served,
resentencing could have no practical effect on Padua.
                                                           3


                                  Judgments affirmed.


     Max Bauer (Joshua D. Werner also present) for the
defendant.
     David B. Mark, Assistant District Attorney, for the
Commonwealth.
