COMMONWEALTH vs. JOSE MARTINEZ (and a companion case)
SJC-12479; SJC-12480
Supreme Judicial Court of Massachusetts
October 30, 2018
Essex. Middlesex. September 7, 2018. - October 30, 2018.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Practice, Criminal, Restitution, Costs, Fees and costs, Probation. Restitution. Supreme Judicial Court, Superintendence of inferior courts.
Complaint received and sworn to in the Haverhill Division of the District Court Department on July 13, 2009.
The Supreme Judicial Court granted an application for direct appellate review.
Complaints received and sworn to in the Framingham Division of the District Court Department on August 10 and September 14, 2007.
A motion for return of property, filed on August 25, 2017, was heard by David W. Cunis, J., and questions of law were reported by him to the Appeals Court.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Benjamin H. Keehn, Committee for Public Counsel Services (Nancy J. Caplan & Eric Brandt, Committee for Public Counsel Services, also present) for the defendants.
Jessica Langsam & Robert E. Toone, Assistant District Attorneys, for the Commonwealth.
Sarah M. Joss, Special Assistant Attorney General, for Massachusetts Probation Service.
GANTS, C.J. In Nelson v. Colorado, 137 S. Ct. 1249, 1252 (2017), the United States Supreme Court held that “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,” the State is required under the due process clause of the
Background. 1. Jose Martinez. In 2010, Jose Martinez pleaded guilty in District Court to three counts of possession of a controlled substance with intent to distribute and one count of unlicensed operation of a motor vehicle. On the three drug convictions, Martinez received concurrent sentences of one year in a house of correction, suspended, with two years of probation supervision. On one of his drug convictions, Martinez was also ordered to pay $1,000 in restitution to the Haverhill police department,2 a monthly fee of sixty-five dollars, as required under
On April 19, 2017, Martinez‘s drug convictions were vacated and dismissed with prejudice pursuant to the single justice‘s order arising from our decision in Bridgeman v. District Attorney for Suffolk Dist., 476 Mass. 298 (2017) (Bridgeman II), because the convictions were tainted by the misconduct of Annie Dookhan, a chemist who was employed by the William A. Hinton State Laboratory Institute when the drugs seized from Martinez were examined by that laboratory. Martinez‘s misdemeanor conviction of unlicensed operation of a motor vehicle was not dismissed.
After being informed that his drug convictions had been dismissed with prejudice, Martinez filed a motion for the return of his probation supervision fees, victim-witness assessment, and restitution payment. The judge, without ruling on the motion, reported the matter and seven questions of law to the Appeals Court pursuant to Mass. R. Crim. P. 34.5 We
2. Stephanie Green. On October 8, 2008, Stephanie Green was sentenced in District Court on two drug-related counts arising from a complaint that had been filed after a search warrant had been executed at her residence on August 9, 2007. Green was placed on supervised probation for two years on each count, to be served concurrently. On one of these counts, Green was assessed a probation fee of sixty-five dollars per month and a victim-witness assessment of fifty dollars.6 The judge at sentencing also allowed the Commonwealth‘s motion for the forfeiture of $1,411.63 seized from Green‘s home during the search.
That same day, before the same judge, Green was sentenced on four other drug-related counts arising from a complaint that had been filed after a search warrant had been executed at Green‘s hotel room on September 14, 2007. On counts one and two, Green was sentenced to one year in a house of correction, suspended for two years, with two years of supervised probation.
On April 19, 2017, Green‘s convictions were vacated and dismissed with prejudice pursuant to the single justice‘s order arising from Bridgeman II. Green then moved for a refund of the $8,071.63 she had paid after being sentenced on the drug convictions arising from the two complaints: $1,411.63 in forfeited cash, $1,560 in probation fees, one hundred dollars in victim-witness assessments, and $5,000 in fines and surfines.7 The judge, without ruling on the motion, reported the matter and three questions of law to the Appeals Court pursuant to Mass. R. Crim. P. 34.8 We transferred the case to this court on our own motion, and now consider the reported questions in conjunction with those reported in Martinez‘s case.
- What is the scope of the due process obligation to refund money paid by a defendant “upon, and as a consequence of” a conviction that has been invalidated? Nelson, 137 S. Ct. at 1252.
- What is the procedure to be used to determine a defendant‘s entitlement to a refund and the amount to be refunded, and who bears the burden of proof?
- Where a judge determines that a defendant is entitled to a refund, how will payment of the refund be accomplished?
Discussion. Before we address these questions, it is important to understand the context and reasoning of the Supreme Court‘s opinion in Nelson. There, two defendants were convicted of various crimes and ordered to pay court costs and fees, which went to two funds -- a “victim compensation fund” and a “victims and witnesses assistance and law enforcement fund.” Nelson, 137 S. Ct. at 1253 nn.1, 2. In addition, the defendants were ordered to pay restitution to the victims of their crimes. Id. at 1253. See People v. Madden, 364 P.3d 866, 867-868 (Colo. 2015); People v. Nelson, 362 P.3d 1070, 1073 (Colo. 2015). All counts of their convictions were later invalidated.9 Nelson, supra at 1258.
The defendants then moved for the return of the court costs, fees, and restitution they had paid. Id. at 1253. The Supreme
The United States Supreme Court reversed the judgment, holding that a scheme whereby “a defendant must prove [his or] her innocence by clear and convincing evidence to obtain the refund of costs, fees, and restitution paid pursuant to an invalid conviction . . . does not comport with due process.” Id. at 1255. The Supreme Court evaluated the defendants’ due process claims under the balancing test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which requires courts to weigh (1) the private interests affected; (2) the risk that the procedures used will result in erroneous deprivation of those interests; and (3) the governmental interests. Nelson, 137 S. Ct. at 1255. The Supreme Court held that all three factors weighed “decisively” in favor of the defendants. Id.
As to the first factor in the balancing test, the Court stated that there was an “obvious interest” in a refund of money paid as a consequence of convictions that were no longer valid. Id. An overturned conviction restores the presumption of innocence, the Court said, erasing any State claim to funds paid in the form of costs, fees, or restitution. Id. at 1255-56.
As to the second factor, the Court declared that the act‘s requirement that defendants prove their innocence by clear and convincing evidence created a risk of erroneous deprivation of the defendants’ interest in a refund of their money. Id. at 1256. Once the presumption of innocence is restored, “defendants should not be saddled with any proof burden.” Id.
As to the third factor, the Court stated that Colorado had “zero claim of right” to money paid solely as a consequence of subsequently invalidated convictions. Id. at 1257.
Under the Court‘s holding in Nelson, id. at 1252, the State is obligated under the due process clause of the
We now address each of the reformulated reported questions.
1. What is the scope of the due process obligation to refund money paid by a defendant “upon, and as a consequence of” a conviction that has been invalidated? a. Probation fees. Where a judge sentences a defendant to probation on a single conviction, monthly probation fees ordered under
Where a judge, however, sentences a defendant to a concurrent term of probation on multiple convictions, the probation fees must be refunded to the defendant only where they were paid
Here, all of the counts for which both defendants were sentenced to probation have been invalidated. As a result, all paid probation fees must be refunded because they were paid solely as a consequence of those invalidated convictions.
b. Victim-witness assessments. As with probation fees, where a defendant is sentenced on a single conviction, the victim-witness assessment ordered under
As applied here, all of Green‘s convictions have been invalidated, so she is entitled to a refund of the victim-witness assessments paid as a consequence of those convictions.
In contrast, Martinez‘s drug convictions were invalidated, but his conviction of unlicensed operation of a motor vehicle was not.
c. Restitution. Due process requires the refund of restitution paid as a consequence of an invalidated conviction, see Nelson, 137 S. Ct. at 1252, but the refund of restitution poses two complex issues that generally do not arise with the refund of fees.
First, fees are generally paid solely as a consequence of a conviction and present no opportunity to obtain a civil judgment for their award. But restitution may be ordered as a special condition of probation in a criminal sentence, see Commonwealth v. Henry, 475 Mass. 117, 120 (2016), or obtained by the victim through an execution on a separate civil judgment, see id. at 122 n.5; Mass. R. Civ. P. 69, 365 Mass. 836 (1974).
The Supreme Court noted in Nelson, 137 S. Ct. at 1253 n.3, that “[u]nder Colorado law, a restitution order tied to a criminal conviction is rendered as a separate civil judgment,” and that, “[i]f the conviction is reversed, any restitution order dependent on that conviction is simultaneously vacated.” See People v. Scearce, 87 P.3d 228, 234-235 (Colo. App. 2003). In contrast, under Massachusetts law, there is no statutory authority that permits a restitution order issued by a judge in a criminal case to be enforced through a separate civil judgment; a victim seeking a civil judgment against the defendant must initiate a separate civil action for restitution damages. See Henry, 475 Mass. at 121, 123 (restitution may be ordered in criminal case only as condition of probation, and probation is not “a civil program or sanction” [citation omitted]); id. at 122 n.5 (victims may collect on civil judgments for restitution through civil executions). See also
Where a defendant moves for such relief, the motion judge must determine whether the civil judgment can stand despite the invalidation of the criminal conviction. In contrast with a criminal conviction, which requires proof beyond a reasonable doubt,10 a civil judgment requires proof only by a preponderance of the evidence, see Baker v. Parsons, 434 Mass. 543, 554 n.18 (2001), and that proof may be obtained through evidence separate and apart from the fact of conviction. In fact, under Massachusetts law, a civil judgment may be obtained through collateral estoppel (also known as issue preclusion) based on a criminal conviction only where the defendant has been found guilty at trial; admissions made by a defendant during a guilty plea colloquy do not trigger collateral estoppel, although they may be admitted in evidence in the civil case. Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742, 748-750 (1985). See also Metropolitan Prop. & Cas. Ins. Co. v. Morrison, 460 Mass. 352, 364 (2011) (where “a criminal conviction follows a guilty plea, the plea may be offered as evidence of a defendant‘s guilt in subsequent civil litigation but it is not given preclusive effect.“).
In Nelson, 137 S. Ct. at 1252, 1253 n.3, the Supreme Court held that the defendants were entitled to a refund of restitution that had been the subject of civil judgments associated with criminal convictions. Under Colorado law, the Court said, such civil judgments are “simultaneously vacated” when the underlying convictions are reversed. Id. at 1253 n.3. Because Martinez‘s restitution order was not tied to a civil judgment, we need not address here whether due process requires the refund of restitution related to an invalidated conviction where there is a surviving civil judgment. Moreover, the issue has been rendered moot by the refund of his restitution payment.
Second, in contrast with fees, which in Massachusetts are paid to the Commonwealth, see
judgment), citing
Because the restitution here was paid to the Haverhill police department and has been repaid, we need not decide whether Nelson requires the Commonwealth to refund restitution paid by a defendant as a consequence of an invalidated conviction where the restitution was paid not to the Commonwealth, but to a private victim. We certainly expect the Commonwealth and any other governmental entity to refund restitution paid to it as a consequence of a conviction where the conviction is later invalidated. But we recognize that it is another matter to order the Commonwealth to repay a defendant for restitution that the Commonwealth never received because that restitution was paid to a private victim. We also recognize the challenges involved if a court were to order private victims to repay restitution that had perhaps been received by them years earlier. A victim is not a party to a criminal proceeding and, if faced with the prospect of having to repay restitution, might wish to initiate a civil proceeding against the defendant to obtain a civil judgment for that restitution amount. Does a judge postpone the order of refund to give the victim a reasonable opportunity to pursue that remedy?
d. Fines. Green seeks a refund of the $5,000 in fines and surfines paid as part of her sentence on two invalidated drug convictions. Although the refund of fines was not at issue in Nelson, Green claims that she is entitled to a refund under the due process principles established in Nelson because her drug convictions have been invalidated and the fines were exacted from her upon and as a consequence of those convictions. We agree that there is no reason to exclude fines and surfines from the category of payments that must be refunded to a defendant as a matter of due process where the defendant was ordered to pay those fines and surfines solely as a consequence of a subsequently invalidated conviction. See Commonwealth v. Accime, 476 Mass. 469, 477 & n.13 (2017) (where conviction is vacated, “defendant may be entitled to a refund of any fine he may have paid“). Green is therefore entitled to a refund of fines and surfines totaling $5,000.
e. Forfeiture. Green also seeks a refund of $1,411.63, the amount of money seized from her home during the execution of the search warrant and ordered forfeited at her plea hearing. Although forfeiture was not at issue in Nelson and was not mentioned in the opinion, Green claims that she is entitled to a refund of the forfeited funds under the due process principles established in Nelson.
We conclude that Green is not entitled to return of the forfeited funds because forfeiture, even where ordered at a plea hearing, “is outside the scope of the criminal matter and constitutes a civil proceeding.” Commonwealth v. Brown, 426 Mass. 475, 480 (1998). The forfeiture of property is authorized by
Here, the Commonwealth sought the forfeiture of the $1,411.63 seized from Green‘s home under
Green contends that the forfeiture order, for all practical purposes, was a consequence of the invalidated drug convictions and should therefore be invalidated along with the convictions. But the motion for forfeiture of Green‘s money under
f. Court costs. Although court costs were not imposed in these cases, we address the issue because their refund is specifically required under Nelson, 137 S. Ct. at 1252. In Massachusetts, “[c]osts shall not be imposed by a justice as a penalty for a crime.”
We recognize that the exactions discussed above are not the only ones that can issue as the result of a conviction. See, e.g.,
2. What is the procedure to be used to determine a defendant‘s entitlement to a refund and the amount to be refunded, and who bears the burden of proof? Whether a defendant has been ordered to pay fees, court costs, restitution, or fines as a consequence of an invalidated conviction is a question whose answer should be found in the case docket. But it is often difficult and potentially time-consuming to determine whether those exactions have actually
The Supreme Court in Nelson, 137 S. Ct. at 1258, held that “[t]o comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Although the Court clearly stated that requiring a defendant to prove his or her innocence to obtain a refund violates due process, id. at 1256, the Court did not provide any further guidance as to what was meant by “no more than minimal procedures.” Id. at 1258.
We now outline the procedure to be followed in cases where the defendant applies for a refund of monies paid as a direct consequence of a conviction that has been invalidated. We set forth this procedural guidance under the due process protections implicit in
First, a defendant seeking a refund must file a motion for refund in the court where he or she was convicted and mail to or otherwise serve this motion on the office that prosecuted the conviction, that is, the office of the Attorney General or the district attorney‘s office. The motion may be filed by the defendant or by defense counsel. If the defendant is filing the motion pro se but was represented by an attorney in the underlying criminal case, a copy of the motion should be sent to the defense attorney. The defendant must swear or attest that the information provided in support of the motion is true, based on personal knowledge or information and belief. This may be accomplished by submitting a verified motion, that is, a motion where the information contained within is sworn or attested, or by submitting with the motion
The sworn or attested application alone is sufficient to satisfy the defendant‘s burden of production. But, if possible, the defendant should identify any docket entries reflecting his or her payment of monies, and supplement his or her application with any other existing evidence (e.g., receipts or payment documents) that the defendant reasonably can locate that tend to support the refund claim.
Once the defendant has met his or her burden of production, the burden of proof shifts to the Commonwealth. At this point, the Commonwealth may rebut the defendant‘s claims by producing evidence that the defendant is not entitled to a refund or is entitled to a refund in an amount that differs from what he or she requested. The Commonwealth, like the defendant, may present evidence in the form of docket entries, receipts, and anything else relevant to determine whether the defendant actually paid the amount claimed.
We place the burden of proof on the Commonwealth rather than the defendant because doing so comports most closely with the spirit of the Supreme Court‘s admonition to impose nothing “more than minimal procedures on the refund of exactions” arising from invalidated convictions. Nelson, 137 S. Ct. at 1258. The defendants who file such motions will often be representing themselves, at least initially, and their invalidated convictions may be many years old, as with Martinez and Green. Although criminal files are public records and defendants may gain access to them, they are more easily accessible to prosecutors who are in the court house of conviction every day. Prosecutors also will generally be better able than defendants to understand docket notations that, especially in older cases, often are handwritten and too often are something less than a model of clarity. Moreover,
Where the refund or its amount is disputed, the court shall consider the evidence offered by both parties and determine whether the Commonwealth has met its burden to show, by a preponderance of the evidence, that the defendant is not entitled to the refund amount requested in his or her motion. The court, in its discretion, may conduct an evidentiary hearing to resolve such disputes. If the court finds that a refund in any amount is proper, it shall issue a refund order pursuant to the procedure described infra.
3. Where a judge determines that a defendant is entitled to a refund, how will payment of the refund be accomplished? Under
Fines, fees, victim-witness assessments, and court costs are collected by the trial court or the probation service but are not retained by them. All such funds are paid to the Commonwealth and, with some exceptions,14 are deposited into the general fund. See
forfeitures, penalties and any other receipts or income of any kind paid to or received by any of the courts . . . shall be paid into the general fund of the [C]ommonwealth except as otherwise specifically provided by law.“).
But the basic elements of this protocol still apply. It continues to be the responsibility of the courts to order the refund of fines, fees, and court costs where due process so requires. And the source of payment for such refunds continues to be the Commonwealth, generally its general fund. We will not attempt to specify the means by which such payment is accomplished; it suffices to say that the court must order the refund and the Commonwealth must timely comply with that order by providing the defendant or juvenile with the money to which he or she is entitled.
The refund of restitution, however, requires a different protocol because restitution payments are made to the victim of the defendant‘s crimes, not to the Commonwealth. In contrast with refunds of fines, fees, victim-witness assessments, and court costs, where the Commonwealth is returning funds to which it is no longer entitled, the Commonwealth was never entitled to payments issued as restitution to private victims. Where the Commonwealth, or any other governmental entity, was itself the victim of a crime and received restitution, a judge may order the Commonwealth or the governmental entity to refund the amount paid, and we expect that order to be honored. But we do not address how a court may accomplish the refund of restitution paid to a private person or entity. We will await an appeal of a case where restitution was paid to a private victim as a consequence of an invalidated conviction to decide that difficult issue.
4. The exercise of our superintendence authority. The recognition in Nelson of a constitutional due process obligation to refund fees, court costs, and restitution paid as a consequence of an invalidated conviction comes at a challenging time for the Commonwealth. Drug convictions in more than 21,000 cases have been invalidated as a result of the misconduct of Annie Dookhan at the Hinton laboratory, and drug convictions in thousands of other cases have been invalidated as a result of the misconduct of Sonja Farak at the Amherst laboratory, with even more to be invalidated as a result of our opinion in Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 729, 735 (2018).
The
In Bridgeman II, 476 Mass. at 300, we exercised our superintendence authority under
We have given careful consideration to whether we need to exercise our superintendence authority to craft another global remedy addressing the many thousands of “Nelson” refund motions that may be brought by the so-called Dookhan and Farak defendants. The parties at oral argument, however, have asked us to refrain from doing so pending the anticipated settlement of a putative class action brought in the United States District Court for the District of Massachusetts that seeks, among other things, the refund of fines, fees, court costs, and restitution paid as a result of invalidated drug convictions by the putative class of Dookhan and Farak defendants. Foster vs. Commonwealth of Mass., U.S. Dist. Ct., Civ. No. 18-10354-IT (D. Mass., filed Feb. 23, 2018, amended Sept. 6, 2018).
We will defer, for now, to allow time for a global remedy to be crafted and for a settlement to be reached by the parties to that litigation. But we might not be able to defer for long because we
Conclusion. We remand the cases to the reporting courts for proceedings consistent with this opinion.
So ordered.
Notes
(1) “Does the refund language in
(2) “If
(1) “Who is the proper party to be named in a defendant‘s motion to return money assessments that are dependent on a conviction that was subsequently invalidated? Is designation of the proper party dependent on the type of monetary assessment sought to be refunded? In what [c]ourt should such a motion be filed, and what, if any, entities other than the District Attorney‘s office should receive notice of such a motion?”
(2) “What is the showing a defendant must make to be entitled to a refund of punitive fines imposed upon a conviction that has subsequently been invalidated, and from what source should punitive fines be refunded?”
(3) “Does Nelson . . . require refunding money that was ordered forfeited by the criminal court pursuant to