Commonwealth v. Gary E. Michaels. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-708
COMMONWEALTH
vs.
GARY E. MICHAELS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a finding that he violated his
probation by failing to make required restitution payments, and
from the five-year extension of probation and increased
restitution payments the judge imposed as a remedy for the
violation. The Commonwealth acknowledges that the judge erred
in extending the defendant's probation and increasing the
restitution payments. We vacate and remand.
On November 21, 2016, the defendant pleaded guilty to
larceny over $250 and to making a false statement for medical
assistance. He was sentenced to probation with an end date of
April 8, 2022, and was ordered to perform community service and
pay restitution in an amount to be determined in the future. On
April 10, 2017, restitution was set in the amount of $46,460.81.
However, after a Henry hearing, see Commonwealth v. Henry, 475
Mass. 117 (2016), the plea judge determined that the defendant
did not have the ability to pay. The judge also ordered that
the defendant's ability to pay be reviewed every six months.
Almost two years later, on March 27, 2019, the defendant
was determined to have the ability to make monthly payments of
$300 towards restitution. The defendant made payments for some
time thereafter. 1 Eventually, though, on August 4, 2021, the
defendant was served with a notice of probation violation
alleging that he had violated his probation by failing to make
the monthly restitution payments and was $3,000 in arrears.
After an evidentiary hearing, a different judge found that the
defendant had violated his probation by failing to make the
required payments. As a remedy, the judge extended the
defendant's probation by five years and increased to $643.66 the
monthly amount to be paid so that the full remaining amount of
restitution could be paid within those five years. These are
the rulings that are before us now.
The defendant makes three arguments on appeal. First, the
defendant argues that the judge failed to consider the totality
of his expenses in determining whether he had the ability to pay
restitution. Second, the defendant argues the judge was
incorrect to think that the full amount of restitution needed to
1 Ultimately, the defendant made payments totaling $7,860.81.
2
be repaid before probation could end and, third, that that error
led to an unwarranted five-year extension of probation and to an
increase in the monthly restitution payment without regard to
the defendant's ability to pay. We agree.
The evidence showed that the defendant, who had his own
business, had been making the required $300 monthly restitution
payments until the COVID-19 pandemic caused his business to
close. Eventually, he secured a new job and was able to make
additional payments towards restitution. 2 Nonetheless, by the
time of the probation violation hearing in March 2022, the
defendant was in arrears by "about $4,500." The defendant does
not dispute that he failed to make restitution payments;
however, he argues that the judge could not find that he had
willfully violated the terms of his probation because the
evidence did not permit the judge to find that he had the
ability to pay. "A defendant can be found in violation of a
probationary condition only where the violation was [willful],
and the failure to make a restitution payment that the
probationer is unable to pay is not a [willful] violation of
probation." Henry, 475 Mass. at 121.
2 During this time period, the defendant also paid $3,000 to
satisfy a restitution order in a separate case. In light of the
defendant's financial statement, we reject the Commonwealth's
suggestion that the defendant's satisfaction of a separate
restitution order should be used to demonstrate that he had the
ability to pay restitution in this case.
3
Although the evidence permitted the judge to find that the
defendant had obtained a new job that paid him $4,200 (pretax)
monthly, the judge's finding that the defendant's monthly
expenses were only $2,000 was clearly erroneous. The
defendant's financial statement -- which was
undisputed -- showed that he had monthly expenses of $4,061, of
which $2,000 was for rent. The judge did not explore these
expenses with the defendant, nor was any evidence presented that
would call their accuracy into question. 3 "In determining the
defendant's ability to pay, the judge must consider the
financial resources of the defendant, including income and net
assets, and the defendant's financial obligations, including the
amount necessary to meet minimum basic human needs such as food,
shelter, and clothing for the defendant and his or her
dependents." Henry, 475 Mass. at 126. Here, the judge
considered only the defendant's monthly rent, rather than the
totality of the defendant's necessary expenses (which would
3 Additional information regarding the defendant's financial
circumstances was contained in his motion to remit outstanding
restitution, which he filed after having been served with the
notice of violation. More specifically, the defendant alleged
that he has a wife and two children whom he supports. His wife
does not work due to health and childcare issues. The defendant
receives food stamps and is on Medicaid, and he was in arrears
on his bills for electricity, gas, water, Internet, and cell
phones. In addition, the defendant had monthly car payments,
car insurance obligations, $4,000 in credit card debt, and
$7,500 in student loan debt.
4
necessarily include more than just rent), and appears to have
compared it to his gross (not net) monthly pay. 4 Although the
evidence permitted the judge to find that the defendant had not
paid the required monthly restitution amount of $300 for some
period of time, the evidence did not permit the judge to find
that he had the ability to pay $300 monthly during that period
"'without causing substantial financial hardship' to [him]self
or [his] dependents." Commonwealth v. Bruno-O'Leary, 94 Mass.
App. Ct. 44, 50 (2018), quoting Henry, supra at 127.
Furthermore, the judge's decision to extend the period of
probation by five years and to increase the monthly payment
amount ran afoul of Henry, 475 Mass. at 124-125. The judge's
decision appears to have been based on a misapprehension that
probation should be extended for the sole purpose of ensuring
that the full amount of restitution can be repaid during the
extended period. 5 But "equal justice means that the length of
probation supervision imposed at the time of sentence should not
be affected by the financial means of the defendant or the
4 The judge stated that the defendant's "annual expenses are
$24,000." Although the judge acknowledged that the defendant
also had some outstanding loan payments, he seems to have
disregarded all other expenses listed on the defendant's
financial statement without any basis in the record to do so.
5 We note that the probation officer suggested a lesser remedy of
a two-year extension of probation with no increase in the
monthly restitution amount of $300.
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ability of the defendant to pay restitution." Id. at 124. It
does not appear that the judge considered, as he was required
to, the defendant's ability to make restitution payments in the
future, let alone at an increased monthly amount. Nor did the
evidence permit the judge to find that the defendant had the
ability to pay the increased monthly amount ($643.66) ordered.
For these reasons, the order entered March 2, 2022, finding
the defendant in violation of the terms of probation and
imposing sentence, is vacated. The case is remanded for
reconsideration. On remand, the defendant's ability to pay must
be factored into both the judge's assessment of whether the
defendant violated probation as alleged in the probation
violation notice and, if so, the appropriate remedy for that
violation. See Commonwealth v. Vallejo, 480 Mass. 1001, 1002
(2018).
So ordered.
By the Court (Wolohojian,
Shin & Ditkoff, JJ. 6),
Clerk
Entered: October 19, 2023.
6 The panelists are listed in order of seniority.
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