Commonwealth v. Malick
12 N.E.3d 338
Mass. App. Ct.2014Background
- Malick pleaded guilty in 1993 to nine counts of larceny and was sentenced as a common and notorious thief to 18–20 years, plus consecutive 12–15 years suspended on probation with restitution of $1,016,714.16 ordered.
- Probation began after serving roughly ten years, with restitution obligations reviewed and adjusted over time, including reductions to monthly payment amounts.
- In 2008 the probation office alleged concealment of assets under a false name and nonpayment, leading to a revocation hearing and a decision to revoke probation and impose the suspended sentence.
- Civil litigation by Prestige Imports and Schmidt against banks later resulted in judgments that fully covered the restitution losses, creating a later question of whether restitution could still be enforced.
- The 2009 revocation order was remanded for reconsideration in light of the civil damages recovery; the companion 2011 motion to revise or revoke raised issues about post-sentencing conduct and new evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether civil damages recovery bars probation revocation for restitution. | Malick argues civil recovery defeats restitution as a sanction. | Malick contends restitution has been satisfied by civil awards and should not support revocation. | Remanded; restitution-based revocation remains available despite civil recovery. |
| Authority and scope of restitution as a probation condition and its nexus to the offense. | Restitution should be enforceable to the extent linked to losses from the offense. | Restitution should be limited to losses causally tied to charged offenses. | Restitution can serve broader restorative purposes and support revocation under proper nexus. |
| courts discretion on remand regarding whether to revoke probation or consider alternatives. | Discretion limited by prior loss) | Judge can choose alternatives to revocation. | Judge retains broad discretion to revoke or choose alternatives on remand. |
| Whether post-sentencing conduct can be considered in a motion to revise or revoke. | N/A | Post-sentencing conduct cannot be relied upon for relief. | Post-sentencing conduct may not be considered to revise or revoke; rejected for merits; remanded for other considerations. |
Key Cases Cited
- Commonwealth v. Pena, 462 Mass. 183 (2012) (abuse-of-discretion standard for revocation decisions)
- Commonwealth v. Denehy, 466 Mass. 723 (2014) (broad authority to order restitution and nexus requirement)
- Commonwealth v. Holmgren, 421 Mass. 224 (1995) (retains discretion in probation decisions; Rule 29/a considerations)
- Commonwealth v. Bruzzese, 437 Mass. 606 (2002) (relevance of discretion in probation revocation)
- Commonwealth v. Nawn, 394 Mass. 1 (1985) (scope of restitution and monitoring obligations)