Commonwealth v. Henry, 55 N.E.3d 943

Background

Defendant, a long‑time Walmart cashier, “free‑bagged” items for friends; video evidence and stipulation established $5,256.10 total retail sales value of items taken. Defendant admitted facts sufficient to warrant a guilty finding; case continued without a finding and defendant placed on 18 months’ probation.
At a restitution hearing the Commonwealth sought restitution equal to the retail sales value; defendant argued restitution should be replacement (wholesale) cost and that she was unable to pay.
A judge ordered $5,256 restitution and delegated setting a payment schedule to probation; later hearings produced notices of violation and a warrant after missed payments; judge eventually set $30/month payments but probation issues persisted.
The appeal raised (1) whether a sentencing judge must consider a defendant’s ability to pay when ordering restitution and (2) whether a retail victim’s actual economic loss is replacement cost or retail sales value.
The SJC held that a judge must consider ability to pay and may not extend probation (or impose longer probation) because of a defendant’s indigency; and that retail theft loss is generally measured by replacement cost unless the Commonwealth proves the stolen items would have been sold, in which case retail price measures actual loss.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether judge must consider defendant’s ability to pay before ordering restitution as a condition of probation	Commonwealth argued inability to pay need not reduce restitution; defendant’s conduct caused her unemployment	Defendant argued inability to pay precludes ordering restitution that will be unenforceable and cause probation violation risk	Judge must consider ability to pay; defendant bears burden to prove inability; cannot extend probation or lengthen it because of inability to pay
Whether judge may extend probation to allow more time to collect restitution from an indigent probationer	Commonwealth implied extending probation is permissible to collect	Defendant argued extension punishes poverty and is impermissible	Court held judge may not extend probation solely because probationer cannot pay restitution; length of probation must be set independent of ability to pay
Proper measure of victim’s actual economic loss in retail theft: retail price vs replacement (wholesale) cost	Commonwealth/prosecutor argued retail sales value reflects loss at point of sale	Defendant argued replacement cost reflects true economic loss (lost inventory cost, not lost retail profits)	Default measure is replacement (wholesale) cost; retail price may be used only if Commonwealth proves by preponderance that items would have been sold absent theft (facts can support retail price when theft occurred at point of sale)
Delegation of monthly payment amount to probation department	Commonwealth/probation set schedule	Defendant argued judge must set amounts given need to consider ability to pay	Error to delegate monthly payment amount to probation department; judge must set monthly amount (may use probation guidance)

Key Cases Cited

Commonwealth v. McIntyre, 436 Mass. 829 (restitution limited to economic losses caused and documented by defendant's conduct)
Commonwealth v. Nawn, 394 Mass. 1 (court must consider defendant’s ability to pay; Commonwealth bears burden to prove loss)
Commonwealth v. Rotonda, 434 Mass. 211 (restitution order may not exceed victim’s actual loss)
Bearden v. Georgia, 461 U.S. 660 (revocation of probation for inability to pay violates due process unless failure is willful)
United States v. Ferdman, 779 F.3d 1129 (10th Cir.) (retail theft: replacement cost generally better measure unless government proves lost retail sale)
People v. Chappelone, 183 Cal. App. 4th 1159 (retail price can overstate loss when goods were not saleable at retail)
Commonwealth v. Canadyan, 458 Mass. 574 (nonwillful failure to comply is defense to probation violation)