COMMONWEALTH vs. EDWARD SITKO.

COMMONWEALTH vs. EDWARD SITKO.

379 Mass. 921

February 11, 1980

In the defendant's first appeal we reinstated his original sentence of a term of three to five years, Massachusetts Correctional Institution (M.C.I.), Walpole, but granted the Commonwealth sixty days in which to seek a further hearing on its motion to revoke and revise the defendant's sentence. See Commonwealth v. Sitko, 372 Mass. 305 , 314 (1977).

Page 922

On remand the Commonwealth moved to revise the defendant's sentence upward. After hearings on May 13 and May 27, 1977, the trial judge revised the sentence to a term of six to ten years, M.C.I., Walpole, Sitko appealed, and we transferred the case here on our own motion. The defendant claims that the FBI report which the judge used was "uncorroborated, unreliable and misleading." Sitko also claims that the reasons given by the judge did not conform to our rescript by clearly demonstrating that he was not motivated by "impermissible considerations." The defendant made no objection and saved no exception at either of the two sentencing hearings. Since neither of the defendant's assignments of error is based on an exception, there is no judicial action before us for review. "[A]n assignment of error under G. L. c. 278, Sections 33A-33G, brings nothing to this court [for review] unless based on a valid exception." Commonwealth v. Hall, 369 Mass. 715 , 717 (1976), quoting from Commonwealth v. Chapman, 315 Mass. 251 , 255-256 (1962). Without a valid exception the defendant must show a "substantial risk of a miscarriage of justice." See Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967). The defendant specifically states that he does not contend that his "sentence was, in fact, vindictively imposed." The defendant merely argues this case as if there were a valid exception based on an erroneous ruling. In these circumstances there is no reason for us to depart from our established practice.

Judgment affirmed.