Commonwealth v. Martinez Commonwealth v. Green , 480 Mass. 777 ( 2018 )

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SJC-12479
SJC-12480
COMMONWEALTH vs. JOSE MARTINEZ.
COMMONWEALTH vs. STEPHANIE GREEN.
Essex. Middlesex. September 7, 2018. - October 30, 2018.
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.
A motion for restitution of costs and fees, filed on June
12, 2017, was heard by Stephen S. Abany, J., and questions of
law were reported by him to the Appeals Court.
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.
2
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.
Luke Ryan, Daniel N. Marx, & William W. Fick, for Stacy
Foster & others, amici curiae, submitted a brief.
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 Fourteenth Amendment to the United States
Constitution "to refund fees, court costs, and restitution
exacted from the defendant upon, and as a consequence of, the
conviction." There can be no doubt that, because of this
controlling authority, Massachusetts courts are required to
order the refund of fees, court costs, and restitution paid by a
defendant as a consequence of a later invalidated conviction.
These two cases, however, present ten reported questions
regarding the scope and application of the due process
obligations established in the Nelson decision. We have
reformulated the reported questions into three broader questions
to provide guidance to trial courts and litigants regarding the
3
repayment of probation fees, victim-witness assessments,
restitution, fines, forfeitures, and court costs after a
conviction has been invalidated.1
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 G. L. c. 276, § 87A, for those placed on
1 We acknowledge the amicus briefs submitted by Stacy
Foster, Jamie Kimball, Jonathan Riley, Nicole Westcott, and a
proposed class of all others similarly situated.
2 The record does not reflect the basis for the order of
restitution. Generally, judges may order defendants to pay
restitution only to the victims of their crimes and only to
reimburse them for "economic losses caused by the defendant's
conduct and documented by the victim." Commonwealth v. Henry,
475 Mass. 117, 120 (2016), quoting Commonwealth v. McIntyre, 436
Mass. 829, 834 (2002). See also G. L. c. 258B, § 3 (o) (victims
have right "to request that restitution be an element of the
final disposition of a case").
4
supervised probation,3 and a victim-witness assessment of ninety
dollars, as required under G. L. c. 258B, § 8, for those
convicted of a felony.4 On his conviction for unlicensed
operation of a motor vehicle, Martinez was ordered to pay a fine
of one hundred dollars. After being sentenced on his drug
convictions, Martinez paid a total of $2,650: $1,000 in
restitution, $1,560 in monthly probation supervision fees, and a
victim-witness assessment of ninety dollars.
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
3 The monthly fee for those placed on supervised probation
is comprised of two components: a "probation supervision fee"
in the amount of sixty dollars per month and a "victim services
surcharge" in the amount of five dollars per month. See G. L.
c. 276, § 87A. For the sake of convenience, we treat these two
components as a single monthly probation fee of sixty-five
dollars.
4 Martinez also was ordered to forfeit any monies found on
his person at the time of his arrest, but the record does not
reflect the amount of any such monies and Martinez has not
sought their refund.
5
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 allowed the
defendant's motion for direct appellate review.
5 The reported questions are:
(1) "Does the refund language in G. L. c. 258B, §8 apply to
convictions vacated pursuant to the global Dookhan order?
If the statute does apply, what is the showing a defendant
must make to be entitled to a refund of a victim witness
fee imposed pursuant to G. L. c. 258B, § 8, and, if a
defendant makes such a showing, from what source should
this payment be refunded?"
(2) "If G. L. c. 258B, § 8 does not apply in these
circumstances, is refund of a victim witness fee required
pursuant to Nelson v. Colorado, 137 S. Ct. 1249 (2017)? If
Nelson does require refunding victim witness fees, what is
the showing a defendant must make to be entitled to a
refund of such fees, and from what source should this
payment be refunded?"
6
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
(3) "If a refund is required either pursuant to the statute
or pursuant to Nelson, can the court limit the refund to
$40 by redistributing $50 of the victim witness fee to the
surviving judgment on the misdemeanor offense of unlicensed
operation in violation of G. L. c. 90, § 10? G. L.
c. 258B, § 8 ($90 victim witness assessment for felonies;
$50 victim witness assessment for misdemeanors);
Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392, 401 (1996)
(remanding to discretion of trial judge whether $600 of
victim witness assessment lost in connection with the
vacated civil rights counts should be distributed among the
surviving judgments of conviction)."
(4) "Does Nelson . . . require refunding payments assessed
pursuant to G. L. c. 276, § 87A? If so, what is the
showing a defendant must make to be entitled to a refund of
such payments, and from what source should this payment be
refunded?"
(5) "What verification is needed to determine the amount to
be refunded?"
(6) "Does Nelson . . . require refunding restitution? If
so, what is the showing a defendant must make to be
entitled to a refund of this payment, and from what source
should restitution payments be refunded?"
(7) "What verification is needed to determine the amount to
be refunded?"
7
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.
She also was ordered to pay fines totaling $4,000 and surfines
totaling $1,000. On count one, Green was further ordered to pay
a victim-witness assessment of fifty dollars. On count four,
she was placed on probation for two years. On count seven, she
6 We note that the judge ordered Green to pay a victim-
witness assessment of fifty dollars on the count in the
complaint charging possession of a class B substance with intent
to distribute, in violation of G. L. c. 94C, § 32A (a), but a
different judge ordered Martinez to pay a victim-witness
assessment of ninety dollars on a count charging possession of a
class A substance with intent to distribute, in violation of G.
L. c. 94C, § 32 (a). Both are felonies within the jurisdiction
of the District Court, see G. L. c. 218, § 26, although a
defendant whose case is adjudicated in District Court may not be
sentenced to State prison. See G. L. c. 218, § 27. Under G. L.
c. 258B, § 8, where a defendant is convicted of a felony, a
judge "shall impose an assessment of no less than $90"; where a
defendant is convicted of a misdemeanor, a judge "shall impose
an assessment of $50." We do not address the differences in
these cases in the application of G. L. c. 258B, § 8.
8
was sentenced to a term of thirty days in a house of correction,
to be served on weekends.
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
7 On December 3, 2008, the Commonwealth commenced a civil
action in Superior Court seeking forfeiture of the items seized
in the execution of the hotel room search warrant: $8,214 in
cash, three cellular telephones, and a laptop computer.
Judgment issued on July 22, 2009, ordering the forfeiture of
these items to the Commonwealth. Green has not sought the
return of these items.
8 The judge was aware that questions had earlier been
reported in Martinez's case, and supplemented those questions
with reported questions addressing additional issues raised in
Green's case "as to the procedure to be followed for return of
punitive fines imposed and what, if any, obligation the
Commonwealth has to return money ordered forfeited." The
reported questions are:
9
motion, and now consider the reported questions in conjunction
with those reported in Martinez's case.
For the sake of providing clear and simple guidance to
trial courts and litigants regarding the scope and application
of the due process obligation announced in Nelson, we have
exercised our authority to reformulate the reported questions
into three more general questions. See Commonwealth v. Eldred,
480 Mass. 90, 93-94 (2018) (reformulating reported question to
make it answerable on existing record); Tedford v. Massachusetts
Hous. Fin. Agency, 390 Mass. 688, 692-693 (1984) (summarizing
reported questions). See also McStowe v. Bornstein, 377 Mass.
804, 805 n.2 (1979) ("[r]eported questions need not be answered
(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 G. L.
c. 94C, § 47 (b), where the conviction in the related
criminal proceeding is subsequently invalidated and no
retrial will occur? If so, what is the showing a defendant
must make to be entitled to a refund of such forfeited
moneys, and from what source would such a refund be paid?"
10
. . . except to the extent that it is necessary to do so in
resolving the basic issue"). The questions are:
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?
Nelson, 137 S. Ct. at 1252.
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?
3. 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
11
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 Court of Colorado held that such a refund could be
ordered only with statutory authority, and that the exclusive
process for exonerated defendants to seek such a refund was
through the Compensation for Certain Exonerated Persons act, a
Colorado law allowing defendants whose convictions had been
invalidated to receive a refund of fines, penalties, costs, and
restitution only after they proved their innocence by clear and
convincing evidence in a separate civil proceeding. Nelson, 137
S. Ct. at 1254.
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
9 One defendant's conviction was reversed on appeal for
trial error, and she was acquitted of all charges on retrial.
Nelson, 137 S. Ct. at 1253. The other defendant's conviction on
one count was reversed on appeal, and his conviction on the
other count was vacated on collateral review. Id. The State
chose not to appeal or to retry the case. Id.
12
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 Fourteenth
Amendment to refund monies where three elements are satisfied:
13
(1) the monies were "exacted from the defendant" upon conviction
and as a consequence of the conviction; (2) the amounts
"exacted" were actually paid by the defendant; and (3) the
conviction has been "invalidated by a reviewing court and no
retrial will occur." We understand that this third element is
met where, for example, the conviction was vacated, whether by
an appellate court or a trial court, and the indictment or count
was subsequently dismissed with prejudice or nol prossed by the
prosecutor, or was retried and resulted in an acquittal. In
addition, "[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." Id. at
1258. Because the refund obligation is constitutional, it
applies even where there is no statutory authority for the
refund of fines, fees, court costs, or restitution to a
defendant whose conviction was invalidated. Cf. Commonwealth v.
Martin, 476 Mass. 72, 79 (2016). The overriding principle is
that where a defendant has been ordered to make a payment
because of a conviction, the invalidation of that conviction
erases the State's claim to that payment, and any amount paid
must be restored to the defendant as a matter of due process.
Although the Supreme Court speaks only of a "conviction," we
understand a "conviction" in light of this due process principle
to include continuances without a finding and juvenile
14
adjudications. Cf. Committee for Pub. Counsel Servs. v.
Attorney Gen., 480 Mass. 700, 734-735 (2018) (defining class of
"Farak defendants" to include defendants who pleaded guilty to
drug charge, admitted to sufficient facts to warrant finding of
guilty on drug charge, or were found guilty of drug charge at
trial); Bridgeman II, 476 Mass. at 306 (providing comparable
definition for "relevant Dookhan defendants").
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 G. L. c. 276,
§ 87A, are paid by the defendant as a direct consequence of that
conviction. Therefore, any amount paid by the defendant is
"taken from [him or] her solely on the basis of a conviction,"
Nelson, 137 S. Ct. at 1257, and must be returned in full once
the conviction is invalidated and it is determined that the case
will not or cannot be retried. Id. at 1252.
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 solely because of an invalidated conviction. Where
the defendant was sentenced to a concurrent term of probation on
15
a conviction that remains valid, due process does not require
that the probation fees paid during that concurrent term be
refunded, because the obligation to pay monthly probation fees
associated with a valid conviction is unaffected by the
subsequent invalidation of a different conviction. For example,
if a defendant were convicted of a drug count and a firearms
count and sentenced to two years of supervised probation on the
drug count and one year of supervised probation on the firearms
count, to be served concurrently, subsequent invalidation of the
drug conviction would have no impact on the defendant's
obligation to pay probation fees in the first year on the
firearms conviction. Because the defendant is entitled to a
refund of only those fees paid as a direct consequence of the
invalidated drug conviction, he or she would receive a refund of
probation fees paid during the second but not the first year of
probation. Due process requires the refund of fees paid for an
invalidated conviction, but it does not require that a defendant
be placed in a better position because of an invalidated
conviction than the defendant would have been in had he or she
been sentenced on only the surviving convictions.
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.
16
b. Victim-witness assessments. As with probation fees,
where a defendant is sentenced on a single conviction, the
victim-witness assessment ordered under G. L. c. 258B, § 8, is
exacted from the defendant solely as a consequence of that
conviction. Any amount paid must therefore be returned where
the conviction is invalidated and it is determined that the case
will not or cannot be retried. But where a defendant is
sentenced on multiple indictments or counts of a complaint, due
process does not require the refund of a victim-witness
assessment imposed on an invalidated conviction where a
surviving conviction also would have required the imposition of
a victim-witness assessment under G. L. c. 258B, § 8.
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. Had Martinez been convicted of only the latter, a
misdemeanor, the judge would have been required to impose a
victim-witness assessment of fifty dollars. See G. L. c. 258B,
§ 8. Presumably, this assessment was not ordered at sentencing
only because the defendant had already been ordered to pay a
victim-witness assessment of ninety dollars on one of his felony
drug convictions. Martinez is therefore entitled to a refund
17
in the amount of forty dollars, the difference between the
amount he paid (ninety dollars) and the amount he would have
paid if not for the invalidated felony convictions (fifty
dollars). A full refund of the ninety dollars would place the
defendant in a better position than he would have been in had he
originally been convicted of only the surviving count.
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).
18
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
G. L. c. 258B, § 3 (u). And, once a victim obtains such a
civil judgment, the invalidation of the criminal conviction does
not automatically result in the civil judgment being vacated.
Instead, a defendant seeking to vacate a civil judgment in light
of an invalidated criminal conviction must move separately for
relief from that judgment under Mass. R. Civ. P. 60 (b), 365
Mass. 828 (1974), which allows for relief in circumstances where
"a prior judgment upon which [an order] is based has been
reversed or otherwise vacated."
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
19
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"
10A criminal conviction requires proof beyond a reasonable
doubt, but restitution may be awarded as a condition of
probation where the victim's economic loss is proved by a
preponderance of the evidence. McIntyre, 436 Mass. at 834.
20
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 G. L. c. 29A, § 3, restitution is
paid to the victims of crimes, who are often individuals or
private entities. The Supreme Court in Nelson, 137 S. Ct. at
1252, concluded that the State is obliged to refund restitution
exacted from the defendant as a consequence of his or her
invalidated conviction. But the Court also appeared to assume
that the restitution was paid to the State, and not to a private
victim. See id. at 1255 (defendants "have an obvious interest
in regaining the money they paid to Colorado"); id. at 1256
("Colorado may not retain funds taken from [the defendants]
solely because of their now-invalidated convictions"); id. at
1257 (defendants "seek restoration of funds they paid to the
State"). This assumption might have been unwarranted because in
Colorado, where "the obligation to pay restitution is included
in the defendant's sentence, restitution results in a final
civil judgment against the defendant in favor of the State and
the victim." Id. at 1262 (Alito, J., concurring in the
21
judgment), citing Colo. Rev. Stat. § 18-1.3-603(4)(a)(I) (2016).
In fact, the restitution paid by both Nelson defendants was used
to pay for mental health therapy and counselling for the victim
children. See Madden, 364 P.3d at 867-68 (defendant was ordered
to pay $910 in restitution to victim and actually paid $757.75,
which went to counselling services); Nelson, 362 P.3d at 1071 &
n.1 (defendant was ordered to pay $7,845 to victims as
restitution and actually paid $414.60).
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
22
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? And what happens if the victim no longer has the
ability to repay the restitution amount, or is financially able
but unwilling to repay? We need not address these issues
because they are not presented in these cases, but it may not be
long before we confront a case that demands their resolution.
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
23
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 G. L. c. 94C, § 47, which sets forth two methods by which
forfeiture proceedings may be initiated by the Commonwealth:
either by petition in the nature of a proceeding in rem filed in
the Superior Court under § 47 (d), or by motion filed in a
related criminal proceeding under § 47 (b). See Brown, supra.
Regardless of which type of proceeding is chosen by the
Commonwealth, the burden of proof remains the same: "the
[C]ommonwealth shall have the burden of proving to the court the
existence of probable cause to institute the [forfeiture]
action, and [the] claimant shall then have the burden of proving
24
that the property is not forfeitable." Id. at 477 & n.3,
quoting G. L. c. 94C, § 47 (d).
Here, the Commonwealth sought the forfeiture of the
$1,411.63 seized from Green's home under § 47 (b) by a motion in
the criminal proceeding.11 Under such circumstances, probable
cause for the forfeiture may be shown from the same facts the
prosecutor presented as the factual basis for the defendant's
guilty plea. See id. at 477-478. The Commonwealth satisfies
its initial burden, and thus shifts the burden of proof to the
defendant, by showing that "the Commonwealth had reliable
information in its possession that established probable cause"
to believe that "the property at issue derived from illegal
narcotics or facilitated a violation of the controlled
substances laws." Commonwealth v. One 2004 Audi Sedan Auto.,
456 Mass. 34, 38-39 (2010). The Commonwealth may make this
showing of nexus even where it lacks a sufficient factual basis
to support a finding of guilt, or where a defendant is found not
guilty at trial, or where the Commonwealth later dismisses or
nol prosses the criminal complaint or indictment. See
Commonwealth v. Fourteen Thousand Two Hundred Dollars, 421 Mass.
11As noted earlier, see note 7, supra, the Commonwealth
obtained the forfeiture of the monies, cellular telephones, and
laptop computer seized from Green's hotel room through a
proceeding in rem filed in the Superior Court under § 47 (d),
and Green does not seek the refund of that forfeited property.
25
1, 9 (1995); Commonwealth v. One 1986 Volkswagen GTI Auto., 417
Mass. 369, 370 n.2 (1994).
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 § 47 (b),
as a matter of law, initiated a separate civil proceeding that
was adjudicated at the same time as the criminal proceeding.
See Brown, 426 Mass. at 480. The finding of probable cause of
nexus that sufficed to order forfeiture in the civil proceeding
did not depend on the finding in the criminal proceeding of
sufficient evidence to warrant a finding of guilt on the plea.
See Fourteen Thousand Two Hundred Dollars, 421 Mass. at 9. The
forfeiture judgment therefore was not solely a consequence of
the invalidated drug convictions, and need not be vacated
because of their invalidation. To be sure, the reasons for
invalidating a conviction potentially may warrant relief from
the civil judgment of forfeiture, but that issue must be
separately litigated in the civil forfeiture proceeding through
a motion for relief from judgment under Mass. R. Civ. P. 60 (b).
A defendant is not entitled to such relief solely because the
criminal convictions that were related to the forfeiture were
invalidated. Green, therefore, is not entitled as a matter of
26
due process to a refund of the $1,411.63 taken in forfeiture
solely because her drug convictions were invalidated.
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." G. L. c. 280, § 6.12 Because Nelson, 137
S. Ct. at 1252, requires the refund of only those costs exacted
from the defendant "upon, and as a consequence of, the
conviction," and because § 6 prohibits court costs from being
ordered as a consequence of conviction, the due process
obligation set forth in the Nelson decision should not affect
court costs assessed in Massachusetts. The due process
obligation to refund would apply to court costs only where, in
apparent violation of § 6, a defendant was ordered to pay court
costs as a consequence of a conviction that was later
invalidated.
12 General Laws c. 280, § 6, also provides:
"A justice may, as a condition of the dismissal or placing
on file of a complaint or indictment, or as a term of
probation, order the defendant to pay the reasonable and
actual expenses of the prosecution. A justice may impose
reasonable costs as a result of a default by a criminal
defendant that was intentional or negligent and without
good cause."
27
We recognize that the exactions discussed above are not the
only ones that can issue as the result of a conviction. See,
e.g., G. L. c. 90, § 24 (assessments and fees in cases of
operating motor vehicle while under influence); G. L. c. 258B,
§ 8 (domestic violence prevention assessments); G. L. c. 280,
§ 6B (drug analysis fees). Because questions regarding other
fines and fees are not presented in these two cases and were not
at issue in Nelson, we do not address them here.
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
been paid by the defendant -- that information might not be in
the docket, especially in older cases, and might require review
of the case file or the probation file. It might be similarly
challenging to determine whether a defendant with an invalidated
conviction has surviving convictions that require the court to
reassign money paid to those convictions rather than to refund
it. Therefore, the allocation of the burdens of production and
proof matters a great deal in determining whether defendants
28
whose convictions have been invalidated will be able to
successfully establish their entitlement to a refund of amounts
paid.
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 art. 12 of the Massachusetts Declaration of Rights.
We are confident that the procedural guidance we provide
satisfies the due process clause of the Fourteenth Amendment,
but we rely on art. 12 to ensure that this process is followed
in Massachusetts courts even if the Supreme Court were to
declare that procedures that place greater demands or
obligations on defendants seeking refunds are acceptable under
the Fourteenth Amendment.
29
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 an affidavit in the form of a
sworn or attested statement, letter, or application. This
verified motion or accompanying affidavit must clearly state (1)
that the defendant's conviction is no longer valid and is not
subject to retrial; (2) that the requested refund consists of
fines, fees, costs, or restitution assessed solely as a result
of the invalidated conviction; (3) the amount of the requested
refund; and (4) that the defendant has paid the requested
amount.13
13We urge the Trial Court to prepare a simple, plain
language "Motion for Refund after Invalidated Conviction" form
30
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
that would simplify the process of applying for a refund by
defendants who may not have the benefit of counsel when they
file such an application.
31
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, records
of payment may sometimes be found in places other than the court
file, such as in probation files or clerk's office files.
Prosecutors are better positioned than defendants to know where
to find these records and to obtain the cooperation needed to
search them.
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.
32
3. Where a judge determines that a defendant is entitled
to a refund, how will payment of the refund be accomplished?
Under G. L. c. 258B, § 8, where a conviction or delinquency
adjudication is "overturned on appeal," the victim-witness
assessment paid by the defendant or juvenile "shall be refunded
by the court" by deducting the funds "from the assessments
transmitted to the state treasurer." Green contends that this
protocol should govern not only the refund of victim-witness
assessments in cases where the conviction or adjudication is
overturned on appeal, but the refund of all fines, fees, and
court costs required as a matter of due process. This protocol
is certainly consistent with the Supreme Court's holding in
Nelson, but there are practical problems with adopting it beyond
the statutory mandate.
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 G. L. c. 29A, § 3 ("All fees, fines,
14See, e.g., G. L. c. 258B, § 8 (domestic violence
prevention assessment deposited into fund for domestic and
sexual violence prevention and victim assistance); G. L. c. 90,
§ 24 (1) (a) (1) (operating motor vehicle while under influence
victim assessment given in part to trust fund for victims of
drunk driving; operating motor vehicle while under influence
head injury assessment deposited in part into trust fund for
head injury treatment services).
33
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."). General Laws
c. 258B, § 8, provides that all victim-witness "assessments
. . . shall be transmitted monthly to the state treasurer."
However, the probation service reports that this transfer of
funds now happens daily. Therefore, the ability of the courts
to refund fines, fees, and court costs by deducting funds "from
the assessments transmitted to the state treasurer" is quite
limited.
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
34
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
35
Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass.
700, 729, 735 (2018).
The procedure we establish here for the refund of fines and
fees in individual cases is practicable in ordinary times, but
we recognize that it would quickly prove impracticable if a
sizeable percentage of the defendants whose convictions have
been invalidated because of Dookhan and Farak's misconduct were
to seek the refunds they are due. If that were to happen, the
amount of time and effort required from judges, clerks,
probation officers, prosecutors, and defense counsel to
adjudicate each individual defendant's entitlement to a refund,
and the amount of such a refund, would pose so substantial a
collective burden that it would threaten the administration of
criminal justice in our courts.
In Bridgeman II, 476 Mass. at 300, we exercised our
superintendence authority under G. L. c. 211, § 3, to fashion a
remedy for the resolution of thousands of drug cases affected by
Dookhan's misconduct through a "new protocol for case-by-case
adjudication" that occurred in three phases and was implemented
by the single justice in the form of a declaratory judgment. In
Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. at
705, 735, we fashioned a more global remedy under our
superintendence authority to resolve thousands of drug cases
affected by Farak's misconduct and by the subsequent
36
prosecutorial misconduct of two attorneys in the office of the
Attorney General: we vacated the drug convictions of the so-
called Farak defendants and dismissed the drug charges against
them with prejudice.
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 recognize the possibility that the issuance of this
opinion may unleash a flood of "Nelson" motions for the refund
of monies paid by Dookhan and Farak defendants. Such an influx
of motions might so burden our criminal courts as to imperil the
37
"proper and efficient administration" of justice. See G. L.
c. 211, § 3. We therefore direct the Attorney General and the
Committee for Public Counsel Services, no later than six months
after the issuance of the opinion in this case, to report in
writing to the single justice responsible for the implementation
of the protocols established in Bridgeman II and Committee for
Pub. Counsel Servs. v. Attorney Gen. regarding the status of the
putative class action litigation. Nothing bars this court from
exercising our superintendence authority before that date if
deemed necessary to preserve the fair administration of justice.
Conclusion. We remand the cases to the reporting courts
for proceedings consistent with this opinion.
So ordered.