Commonwealth v. Unitt
AC 16-P-29
| Mass. App. Ct. | Feb 28, 2017Background
- Peter J. Unitt, III and Lee Peck Unitt: married, ran a law office; charged and later convicted of theft/embezzlement; ordered to pay joint and several restitution to victims.
- Bail set at $50,000 cash for each defendant at arraignment; adult children Jade Unitt and Peter Unitt, IV posted the cash and were named as sureties on identical recognizances.
- Both defendants appeared as required throughout the proceedings (no default) and were later convicted or pleaded guilty; restitution was ordered in 2013.
- The judge held postconviction hearings (documentary evidence, no live testimony) and found the bail funds were sham loans and in fact belonged to the defendants rather than the sureties.
- The judge ordered forfeiture of the posted bail and directed the funds be applied to restitution; defendants appealed arguing statutory mandate required return of bail to sureties when no default occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judge may order forfeiture of bail and apply it to restitution where the defendant did not default | Commonwealth: court has inherent authority to hold/attach funds postconviction and apply them to fines/restitution when the purpose of bail has been fulfilled | Unitt: G. L. c. 276, § 68 mandates return of bail to surety when defendant appears and no default occurred; judge lacked authority to forfeit absent default or proper procedure | Reversed: judge lacked authority here—statute mandates return of bail when no default; Commonwealth did not prove money belonged to defendants and proper procedures for forfeiture were not followed |
| Whether judge permissibly found the suretyship was fraudulent without an evidentiary hearing or offer of proof | Commonwealth: judge may inquire into ownership of funds to prevent sham suretyship | Unitt: fraudulent suretyship requires motion, offer of proof, and evidentiary hearing; judge improperly relied on memory, discredited documents, and absence of affidavits | Court: proof of fraud could support forfeiture, but here the judge made unsupported factual findings without required hearing; findings were inadequate |
| Whether G. L. c. 276 permits inquiry into surety sufficiency when funds are on deposit | Commonwealth: statute does not limit court's postconviction authority over deposited funds | Unitt: G. L. c. 276, § 57 bars inquiry into sufficiency of sureties so long as required amount was deposited; § 68 mandates return | Court: § 68’s plain mandatory language controls; return required absent default or proper forfeiture procedure |
| Whether defendants waived claim as to restitution amount by not appealing restitution order | Commonwealth: restitution amount not at issue in this appeal | Unitt: alternatively sought remand for full evidentiary hearing | Court: restitution-amount challenge waived; remand unnecessary because forfeiture reversed |
Key Cases Cited
- Querubin v. Commonwealth, 440 Mass. 108 (discusses purpose of bail to secure appearance)
- Commonwealth v. Bautista, 459 Mass. 306 (surety liability on recognizance; forfeiture on default)
- Commonwealth v. Brown, 431 Mass. 772 (statutory plain-language control requiring return of bail when no default)
- Commonwealth v. Nattoo, 452 Mass. 826 (credibility findings cannot substitute for evidentiary proof)
- Commonwealth v. Haggerty, 400 Mass. 437 (disbelief of testimony is not proof of contrary facts)
- Commonwealth v. Davis, 376 Mass. 777 (postconviction application of bail to fines where parties conceded or stipulated)