Commonwealth v. Pereira ( 2018 )

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16-P-975 Appeals Court
COMMONWEALTH vs. MARIA C. PEREIRA.
No. 16-P-975.
Plymouth. December 4, 2017. - April 13, 2018.
Present: Sacks, Ditkoff, & Singh, JJ.
Practice, Criminal, Revocation of probation, Restitution,
Newspaper article. Constitutional Law, Freedom of speech
and press. Newspaper. Threatening.
Indictments found and returned in the Superior Court
Department on April 18, 2014.
A proceeding for revocation of probation was had before
Cornelius J. Moriarty, II, J.
Robert A. O'Meara for the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.
SACKS, J. The defendant appeals from a Superior Court
order, entered after hearing, that revoked her probation. The
judge found that the defendant had violated her probation
conditions by failing to make required weekly restitution
payments and violating a no-contact condition by contacting a
2
newspaper to make a threat against the victim, who then saw it
published in an article in the newspaper. The judge sentenced
her to from three and one-half to five years in State prison.
We affirm.1
Background. On July 17, 2015, the defendant pleaded guilty
to one count of larceny over $250, involving embezzlement from
her brother's (victim) construction business in Brockton, where
she had worked as a bookkeeper. The defendant had been indicted
on sixteen charges; at the time of her guilty plea, the
remaining fifteen charges were dismissed. The judge sentenced
her to five years of probation, with conditions, among others,
that she: (1) make restitution to the victim of $103,753.64,
which the judge stated was "a substantial break off of what was
. . . allegedly stolen," to be paid at the rate of $1000 per
week; (2) stay away from the victim's residence and place of
employment, and have no "direct or indirect contact" with him,
his wife, or their children; and (3) execute a financial
affidavit "stating that there are no available funds remaining
from [her 2012] lottery winnings and no other funds or monies
1 Based on the defendant's unrebutted representation that,
while incarcerated, she had deposited her notice of appeal with
prison authorities for mailing within the time to appeal, we
conclude that her appeal is timely. See Commonwealth v.
Hartsgrove, 407 Mass. 441, 446-447 (1990).
3
available."2 After having been given a weekend to consider this
disposition, the defendant had represented to the judge that she
was able to pay the $1000 weekly amount. The defendant signed,
thereby agreeing to obey, the order of probation conditions.
Four days later, on July 21, the defendant filed her
financial affidavit, in which she stated that she had exhausted
her $455,000 in lottery winnings. In the affidavit the
defendant failed, however, to account for $81,000 of those
winnings, and did not assert any inability to pay the
restitution as ordered and agreed.
On August 14, the defendant was issued a notice of
surrender and hearing for alleged violations of probation
(notice of probation violation) alleging that she had violated
two probation conditions: failure to make restitution payments
and violation of the no-contact condition.
At an initial probation violation hearing on August 17, a
probation officer represented that the defendant had made the
first restitution payment, due July 24, but had missed the
payments due July 31 and August 7, and made only a partial
payment on August 15. The probation officer further represented
that the defendant had violated the no-contact condition by
making comments about the victim in an article that appeared on
2 In 2012, the defendant had won the Massachusetts lottery
and received, after taxes, a check for $455,000.
4
July 28 in a local newspaper, the Enterprise. Defense counsel
then informed the judge that the defendant had lost her job.
The judge (who had been the sentencing judge) expressed concern
that the defendant, so soon after receiving a relatively lenient
disposition of which the carefully-considered and agreed-upon
restitution condition was a significant component, had
apparently violated that condition. He ordered the defendant
held without bail pending a final probation violation hearing.
At that hearing, on September 11, the victim testified that
after the defendant had pleaded guilty, the victim had made
comments about her, including that she was a "scum bag," in an
article about the case that appeared in the Enterprise on July
17. The victim described the Enterprise as the "most widely
published newspaper in the Brockton area." On July 28, a second
article appeared in the Enterprise, stating that the defendant
had called the newspaper to say, among other things, that she
"'covered up' things for [the victim] while she was a bookkeeper
for his company" and that she had "enough evidence against him
that will probably put both of us in jail." The article further
quoted her as saying: "I am not guilty for anything. . . . My
attorneys gave me bad advice. . . . My side of the story is I'm
innocent and his day is coming. Justice will be served against
him."
5
The victim testified that he had read this article and had
interpreted the defendant's comments as "threats that she had
information that she was going to put [him] . . . in jail." The
victim explained that seeing the article had affected him
emotionally:
"I thought that the court case was closed and I had some
relief from this whole situation. And apparently, it just
continued. . . . I tried to close a chapter in my life
with her bad doing. And it's just relentless, the stuff
she is saying about me. . . . I felt that I gave my
sister, my bookkeeper, the best possible leniency that I
could have. And then to have it come out in the newspaper
that she had information and that . . . she was given wrong
counsel when she admitted that she did wrong, that to me
was just -- closure wasn't set in and made me feel
uptight."
The probation officer then represented to the judge that,
before the defendant signed the probation conditions, he had
reviewed them with her "starting from the first condition all
the way to the final signature." He had also "specifically
instructed [her], no contact with the victim, direct or
indirect," and advised her that she "[could not] have a friend
talk for her, have a letter written to another person and have
that letter find its way back to the [victim]. It was very
clear what third party [indirect] contact was." The probation
officer had also represented, again, that the defendant had not
made all required restitution payments.
At that point in the hearing, the judge stated that he was
treating the probation officer's statements as evidence and
6
asked defense counsel if he wished to cross-examine the
probation officer or offer any evidence for the defendant.
Defense counsel declined both invitations.3 He limited his
closing argument to asserting that the defendant had a
constitutional right to make comments about the victim in the
newspaper, in order to defend her reputation against his prior
remarks about her in the same newspaper.
The judge rejected the defendant's free speech argument and
found that she had violated the no-contact condition of her
probation by "issuing [the victim] a threat." With respect to
restitution, the judge found: "[S]he has not paid the money
that she promised to pay. And I have no evidence before me that
it is impossible for her to pay the money."4 Consequently, he
3 Earlier in the hearing, defense counsel repeated his
assertion that the defendant had lost her job, but he never
introduced any evidence to that effect or stated that it had
occurred before she failed to make two of her weekly restitution
payments. The assistant district attorney assisting the
probation officer stated in his closing argument: "[Y]ou may
recall during the course of the sentencing hearing [following
the plea], she represented that she worked for N&J Bookkeeping,
which is her own company, not a company that she could
conceivably be fired from. And now she's claiming that's why
she can't pay the money that she's promised to pay." Defense
counsel responded, "[M]y client informs me that she does not own
the business which she was fired from." The judge did not make
a finding on the issue, nor does the record contain a transcript
of the plea or sentencing hearing.
4 The judge also stated, in pertinent part: "[T]here was
evidence that at that time she had won the lottery. So I am not
convinced that she did not have the ability to pay $1,000 a
week, which she specifically said that she could pay."
7
vacated the order of probation and asked for the probation
officer's recommendation as to disposition.
The probation officer asked for a sentence of three to five
years, reminding the judge that at the time the defendant
pleaded guilty:
"[T]he court was quite clear with its concern with
regarding this order. That the court wanted to make the
[victim] whole and was going to take any attempt to make
him whole. . . . And as the article suggests, [the
defendant] didn't accept responsibility. And if that's the
case, Your Honor, placing her on probation again is not
going to drive that point home any clearer than it would
have been on the day that contract was signed.
"So for those reasons, I'm asking the sentence be
imposed."
Defense counsel asked that the defendant be reprobated.
The judge then reviewed the defendant's record, which
included being placed on probation in 1999 for an attempted
larceny conviction; in 2005 after charges of larceny over $250,
uttering, and forgery were continued without a finding; in 2013
for two larceny by check convictions; and for a different
larceny over $250 conviction. The judge stated, "She's been
placed on probation quite a few times . . .[and] it was very
compassionate of her brother[,] who has been the victim of this,
not to request jail time." Yet, he continued, after she had
been given time to carefully consider her plea and had agreed
that she could make the required weekly payment, she "makes one
payment and that's it . . . [a]nd then takes it to the press,
8
which is what she did, to threaten her brother." The judge
sentenced the defendant to a term of three and one-half to five
years in State prison.5
Discussion. 1. Failure to make restitution. The judge,
who had also accepted the defendant's guilty plea, had ample
evidence to support his finding, by a preponderance of the
evidence, that the defendant did not make the required
restitution payments and thus had violated that condition of her
probation. See Commonwealth v. Durling, 407 Mass. 108, 111-112
(1990). We reject the defendant's argument, under Commonwealth
v. Henry, 475 Mass. 117 (2016), that the judge abused his
discretion by failing to consider, at the final probation
violation hearing, the defendant's claimed inability --
unsupported by any evidence -- to make the payments. Under
Henry, at a restitution hearing, "[w]here a defendant claims
that he or she is unable to pay the full amount of the victim's
economic loss, the defendant bears the burden of proving an
inability to pay." Id. at 121. Nothing in Henry, which
requires that a judge determine the extent of a defendant's
ability to make restitution, required the judge here, in the
5 On appeal, the defendant challenges only the findings of
violations, not the resulting disposition. Once a violation is
found, "[h]ow best to deal with the probationer is within the
judge's discretion." Commonwealth v. Durling, 407 Mass. 108,
111 (1990).
9
absence of any new evidence on the point, to look behind the
defendant's own original representation and agreement that she
was able to pay the specified amounts. See id. at 118, 121.
Under Henry, "[t]he defendant may be required to report to
his or her probation officer any change in the defendant's
ability to pay, and the probation officer may petition the judge
to modify the condition of probation . . . based on any material
change in the probationer's financial circumstances." Id. at
126. Here, however, instead of reporting any changed
circumstance to her probation officer pursuant to Henry, or
seeking modification of probation conditions, the defendant
simply failed to make the payments that she had agreed a few
weeks earlier she could make, and then, once charged with the
violation of that probation condition, she offered no actual
evidence of her inability to make the payments. See
Commonwealth v. Avram A., 83 Mass. App. Ct. 208, 210, 211-214
(2013) (affirming finding that juvenile had violated restitution
condition of probation, where juvenile offered no evidence of
inability to pay, other than evidence of small bank account, out
of which he had made no payments).
We do not agree with the defendant's claim that she
presented such evidence by means of her previously-filed
financial affidavit; nowhere within it did she state that she
was unable to make the payments. Nor did the defendant support
10
her motion to modify probation conditions, which she filed more
than two weeks after the notice of probation violation had
issued and which was denied on September 11, with any affidavit
or other evidence of inability to pay; the assertions of her
counsel are not evidence. See id. at 212.
Section 6(B) of the Guidelines for Probation Violation
Proceedings in the Superior Court (2016),
http://www.mass.gov/service-details/guidelines-for-probation-
violation-proceedings-in-the-superior-court
[https://perma.cc/FP63-D6UE], governing final probation
violation hearings, codifies preexisting practice by calling for
an evidentiary hearing.6 See, e.g., Commonwealth v. Ventura, 465
6 Section 6(B) provides in pertinent part:
"A final violation hearing shall consist of two parts: (1)
an evidentiary hearing to adjudicate whether the alleged
violation has occurred; and (2) upon a finding of
violation, a dispositional hearing. . . .
"The probation officer shall have the burden of proving
that a probationer has violated one or more conditions of
probation by a preponderance of evidence. At the request
of a probation officer, or when required by G. L. c. 279,
§ 3, the District Attorney may participate in the
presentation of evidence or examination of witnesses.
Hearsay evidence shall be admissible at a Violation Hearing
as permitted under Sections 802 through 804 of the
Massachusetts Guide to Evidence, or when determined by the
judge to be substantially reliable. The probationer shall
have the right to cross examine any witnesses called by the
probation officer, including the probation officer; the
right to call witnesses; the right to present evidence
favorable to the probationer; the right to testify; and the
right to make closing argument on the issue of whether a
11
Mass. 202, 203-204 (2013). A judge conducting such a hearing,
no less than the probationer, is entitled to require evidence of
an alleged violation, as well as evidence of any defense
thereto. Here the defendant offered no evidence at all in
support of her defense of inability to pay restitution.
We therefore see no error in the judge's finding that the
defendant violated the restitution condition of probation,
including his implicit finding that the nonpayment was wilful,
as is required for the nonpayment to warrant revocation.7 See
Henry, 475 Mass. at 121, 124 n.6.
2. Violation of no-contact condition. The defendant
argues that the judge violated the defendant's free speech
violation has been proved by a preponderance of evidence."
(Footnote omitted.)
7 As the Supreme Judicial Court has recently observed,
"wilfulness" does not "have a consistent meaning in our
jurisprudence." Millis Pub. Schs. v. M.P., 478 Mass. 767, 776
(2018). "[S]ome definitions focus on the actor's purpose, while
others focus only on whether the actor's conduct was voluntary
or intentional." Ibid. We read Henry, and the decisions it
relies upon, as indicating that violation of a probation
condition involving the payment of money is wilful where the
probationer has not shown an inability to pay or that the
nonpayment was without fault or otherwise justified. Henry, 475
Mass. at 121-122, citing Bearden v. Georgia, 461 U.S. 660, 669
n.10 (1983). See Commonwealth v. Gomes, 407 Mass. 206, 212-213
(1990). See also Commonwealth v. Canadyan, 458 Mass. 574, 578-
579 (2010). The Henry court also cited Avram A., 83 Mass. App.
Ct. at 212-213, as a case involving a wilful violation. Henry,
475 Mass. at 124 n.6. In short, as stated in Henry, "the
defendant bears the burden of proving an inability to pay." Id.
at 121.
 12
rights under the Federal and State constitutions when he found
that she had violated the no-contact condition by making
statements about the victim in an article published in a
newspaper. She contends that she was not attempting to contact
the victim, but was merely exercising her right to free speech
in a public forum by responding to the victim's disparaging
remarks that appeared in an earlier article in the same
newspaper. On these specific facts, we disagree.
The defendant's constitutional argument is that her
statements to the newspaper, because they did not constitute a
constitutionally unprotected "true threat," could not be viewed
as violating the no-contact condition. Although the defendant
is correct that her remarks were not a "true threat,"8 she
overlooks an important principle governing a probation condition
such as hers.
"Judges are permitted significant latitude in imposing
conditions of probation, . . . and '[a] probation condition is
not necessarily invalid simply because it affects a
8 "The United States Supreme Court has defined 'true
threats' as 'those statements where the speaker means to
communicate a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group of
individuals.'" Commonwealth v. Walters, 472 Mass. 680, 690-691
(2015), quoting from Virginia v. Black, 538 U.S. 343, 359 (2003)
(Black). O'Brien v. Borowski, 461 Mass. 415, 423-424 (2012).
The First Amendment "permits a State to ban a 'true threat.'"
Black, 538 U.S. at 359, citing Watts v. United States, 394 U.S.
705, 708 (1969) (per curiam).
13
probationer's ability to exercise constitutionally protected
rights.'" Commonwealth v. Rousseau, 465 Mass. 372, 389-390
(2013) (quotation omitted). Courts have previously upheld
conditions of probation that affect First Amendment rights so
long as they are "reasonably related to a valid probation
purpose." Commonwealth v. Power, 420 Mass. 410, 417 (1995),
cert. denied, 516 U.S. 1042 (1996). See Commonwealth v. Obi,
475 Mass. 541, 547-548 (2016). "The principal goals of
probation are rehabilitation of the defendant and protection of
the public." Commonwealth v. Lapointe, 435 Mass. 455, 459
(2001). Accord Rousseau, 465 Mass. at 390. A probation
condition forbidding contact with, including threats to, the
victim has a clear rational relationship to both of these goals:
encouraging the defendant's acceptance of responsibility for the
crime and protecting the victim, as a member of the public, from
further harm, whether emotional, physical, or financial, at the
hands of the defendant. The defendant does not argue that these
are not valid goals, or that the no-contact condition, as
applied here, trenched more broadly on her free speech rights
than necessary to achieve these goals.
"[N]o contact" probation conditions, as well as "the term
'no contact' in the related context of G. L. c. 209A protective
orders," have been read broadly "to foreclose a myriad of
potential encounters, engagements, or communications between
14
people." Commonwealth v. Kendrick, 446 Mass. 72, 75-76 (2006).
See Commonwealth v. Consoli, 58 Mass. App. Ct. 734, 741 (2003)
("Our broadly protective interpretation of 'contacts,' an
interpretation fully consistent with the statutory purpose [of
G. L. c. 209A], means that one cannot undermine a no contact
order by the simple expedient of ricocheting prohibited comments
off of third parties").
The defendant here makes no argument that the no-contact
condition of probation was insufficiently clear to put her on
notice that contact made through her directing comments at the
victim through a newspaper article was prohibited. See
Kendrick, 446 Mass. at 75, quoting from Commonwealth v. Orlando,
371 Mass. 732, 734 (1977) (No-contact probation condition
constitutionally sufficient where, although "imprecise," it
provided "comprehensible normative standard so that [people] of
common intelligence will know its meaning"). The probation
officer had warned the defendant that contact through third
parties was prohibited. She nevertheless took the initiative to
contact the newspaper to make statements about the victim that
he could, and did, reasonably understand as threats.9 Indeed,
9 If, for example, a reporter had randomly stopped the
defendant on the street to ask her view on some unrelated matter
of public interest, and the defendant's response had been
published in a newspaper and thereby come to the victim's
attention, even foreseeably, a different case would be
presented.
15
the judge found that her statements constituted "issuing [the
victim] a threat." As defense counsel conceded before this
court at oral argument, the defendant should reasonably have
known that her statements to the newspaper about the victim
would come to the victim's attention.10 We thus see no error in
the judge’s finding and conclusion that, in these circumstances,
the defendant's remarks violated a valid no-contact condition of
probation.
Conclusion. The judge did not err in revoking the
defendant's probation based on his well-supported findings that
the defendant had violated her probation conditions by failing
10The defendant nevertheless argues that there was
insufficient proof of her intent to make a threat; she notes
that a conviction under the threat component of the criminal
stalking statute, G. L. c. 265, § 43(a)(2), requires proof of
intent both to place the victim in fear and to communicate a
threat to the victim. See Walters, 472 Mass. at 692-693. But
the defendant does not explain why those intent requirements,
which serve in part to confine the reach of the stalking statute
to constitutionally-unprotected "true threats," id. at 691-692,
should apply in the context of an alleged violation of a no-
contact condition of probation, where a defendant's
constitutional rights are subject to reasonable restrictions.
We think the cases concerning no-contact provisions of G. L.
c. 209A orders are a better source of guidance. See, e.g.,
Kendrick, 446 Mass. at 76 (defendant violates no-contact
provision of G. L. c. 209A order by communicating by any means
with protected person; proof of intent to violate order is not
required, but defendant could not be found in violation if he
neither knew nor reasonably should have known that his conduct
would result in contact with protected person). See also
Commonwealth v. Silva, 431 Mass. 194, 200 (2000) (proof of
intent to violate G. L. c. 209A order not required; proof that
act constituting violation was voluntary suffices).
16
to adhere to the restitution payment schedule and the terms of
the no-contact condition.
Order revoking probation and
imposing sentence affirmed.