Commonwealth v. Malick (and a companion case) (Lawyers Weekly No. 11-102-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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. 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 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 […]