Commonwealth v. Martin

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SJC-12056
COMMONWEALTH vs. PIERCE A. MARTIN.
Norfolk. September 7, 2016. - November 25, 2016.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Practice, Criminal, Costs, Fees and costs, Probation.
Complaint received and sworn to in the Quincy Division of
the District Court Department on October 19, 2010.
A motion to withdraw a guilty plea, filed on October 3,
2012, was heard by Mary Hogan Sullivan, J., and motions for the
return of seized property, filed on November 21, 2012, and July
22, 2013, were heard by Mark S. Coven, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Ilse Nehring for the defendant.
Susanne M. O'Neil, Assistant District Attorney, for the
Commonwealth.
HINES, J. In October, 2011, the defendant, Pierce A.
Martin, pleaded guilty in the Quincy Division of the District
Court Department to possession of a class D substance (second
offense). At sentencing, the plea judge imposed a one-year term
2
of probation and, as mandated by statute, the probation
supervision fees (G. L. c. 276, § 87A) and the victim-witness
assessment (G. L. c. 258B, § 8). In October, 2012, after the
revelation of misconduct at the William A. Hinton State
Laboratory Institute (Hinton laboratory), a judge granted the
defendant's unopposed motion to withdraw his guilty plea on the
ground that Annie Dookhan,1 the subsequently discredited analyst
at the center of the misconduct allegations, performed the
analysis of the substances seized during the defendant's arrest.
See Commonwealth v. Scott, 467 Mass. 336 (2014). The
Commonwealth entered a nolle prosequi on the underlying
complaint. Thereafter, the defendant filed a motion for return
of property, including probation supervision fees ($780) paid
during the term of probation and the victim-witness assessment
(fifty dollars), claiming a right to recoup these amounts where
the conviction, in the defendant's view, was vacated on
constitutional grounds.2 The judge denied the motion, and the
defendant appealed. We transferred the case from the Appeals
Court on our own motion. We conclude that there is no statutory
1
For a comprehensive description of Dookhan's indictment
and guilty pleas, and the investigation of the Hinton
laboratory, see Commonwealth v. Scott, 467 Mass. 336, 337-342
(2014).
2
The defendant's motion also sought the return of cash
($109) seized during the arrest. The judge allowed this aspect
of the motion.
3
authority for the return of the probation supervision fees and
the victim-witness assessment paid by the defendant. Therefore,
we affirm the denial of the defendant's motion for return of
property.
Background. We summarize the relevant facts from the
record. On October 18, 2010, Quincy police officers arrested
the defendant following a motor vehicle stop. Incident to the
arrest, the police seized a large plastic bag containing seven
smaller plastic bags filled with what appeared to be marijuana
and $109 in United States currency. The next day, a five-count
complaint issued charging the defendant with possession of a
class D substance (marijuana) with intent to distribute,
subsequent offense, G. L. c. 94C, § 32C (b); commission of a
drug offense in a school zone, G. L. c. 94C, § 32J; unlicensed
operation of a motor vehicle, G. L. c. 90, § 10; failure to
stop, G. L. c. 98, § 9; and failure to wear a seatbelt, G. L.
c. 90, § 13A.
On October 13, 2011, the defendant pleaded guilty to
possession of a class D substance, subsequent offense. In
contemplation of a guilty plea, the Commonwealth dismissed the
school zone violation and filed the remaining charges with the
defendant's consent. The plea judge imposed the defendant's
recommended sentence: a one-year supervised term of probation,
with conditions requiring the defendant to abstain from drugs
4
and submit to random drug testing. In addition, the judge
imposed statutorily mandated fees including a one-time victim-
witness assessment of fifty dollars, as well as a monthly
probation supervision fee of sixty dollars and a monthly victim
services surcharge of five dollars (collectively, probation
fees).
On January 4, 2012, a violation of probation notice issued
for the defendant. On August 28, 2012, the defendant waived his
right to a probation hearing and stipulated to the violation for
failing to comply with probation conditions including drug
testing, payment of the monthly probation fees, and reporting to
his probation officer.3 The plea judge extended the defendant's
probation for one year on the same terms, and imposed office of
community corrections "Level III" supervision with global
positioning system monitoring for ninety days.
On October 31, 2012, a judge allowed the defendant's
unopposed motion to withdraw his guilty plea based on Dookhan's
involvement as the analyst of the substance seized from the
defendant during his arrest. The Commonwealth entered a nolle
prosequi for the underlying complaint "in the interest of
justice in light of the ongoing criminal investigation into the
mishandling of evidence at the [Hinton laboratory]," while
3
The defendant concedes that he was absent from supervised
probation for eight and one-half months.
5
maintaining the existence of sufficient evidence to prosecute
the complaint.
On July 22, 2013, the defendant filed a motion for return
of property, seeking the return of the probation fees and the
victim-witness assessment paid during his probation.4 After a
hearing, the judge denied the motion.
Discussion. The defendant argues that the language of
G. L. c. 258B, § 8 (§ 8), requires the return of the victim-
witness assessment where the underlying conviction is vacated
through postconviction relief. Specifically, he argues that he
is entitled to recoup the payment of probation fees assessed
pursuant to G. L. c. 276, § 87A (§ 87A), on the ground that his
conviction is "void" and that equity requires the relief he
seeks. He also claims that the probation fees are an
impermissible fine or penalty where the underlying conviction is
vacated. We address these arguments in turn, both of which lack
merit.
1. Victim-witness assessment. The defendant argues that
the language in § 8 requiring the return of the victim-witness
assessment where a conviction is "overturned on appeal" also
applies to this case where the conviction was vacated as a
4
The defendant was ordered to pay the victim-witness
assessment for both his initial probationary term and his
extended term of probation.
6
consequence of the judge's order granting the defendant's motion
to withdraw his guilty plea. We disagree.
The issue is one of statutory interpretation. "We review
questions of statutory interpretation de novo." Chin v.
Merriot, 470 Mass. 527, 531 (2015), citing Sheehan v. Weaver,
467 Mass. 734, 737 (2014). "[T]he meaning of a statute must, in
the first instance, be sought in language in which the act is
framed, and if that is plain, . . . the sole function of the
courts is to enforce it according to its terms." Commonwealth
v. Dalton, 467 Mass. 555, 557 (2014), quoting Commonwealth v.
Boe, 456 Mass. 337, 347 (2010). "We are obliged to discern and
give effect to the intent of the Legislature." Wing v.
Commissioner of Probation, 473 Mass. 368, 373 (2015), citing
Oxford v. Oxford Water Co., 391 Mass. 581, 587–588 (1984).
Thus, we begin the analysis with the language of the
statute:
"The court shall impose an assessment of [fifty
dollars] against any person who has attained the age of
seventeen and who is convicted of a misdemeanor or against
whom a finding of sufficient facts for a conviction is made
on a complaint charging a misdemeanor. . . . The
assessment from any conviction or adjudication of
delinquency which is subsequently overturned on appeal
shall be refunded by the court to the person whose
conviction or adjudication of delinquency is overturned"
(emphasis added).
G. L. c. 258B, § 8. The plain language of § 8 demonstrates that
the disposition in this case, the withdrawal of a guilty plea
7
followed by an order vacating the conviction, does not
constitute a conviction that was "overturned on appeal." See
Dalton, 467 Mass. at 557. Here, the defendant did not appeal
from his conviction; rather, his conviction was vacated after a
judge of the District Court granted postconviction relief
through Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501(2001), and the Commonwealth subsequently entered a nolle
prosequi. That procedural difference is dispositive here. The
plain language of § 8 specifically limits persons entitled to a
refund to those whose conviction or adjudication of delinquency
was overturned on appeal. G. L. c. 258B, § 8. See Commonwealth
v. Chamberlin, 473 Mass. 653, 660 (2016).
The Legislature clearly intended to provide a refund for
the § 8 assessment to a narrow category of defendants because it
used the specific phrase "overturned on appeal." If the
Legislature had intended to expand the pool of eligible
claimants to those whose convictions were overturned through
postconviction relief under Mass. R. Crim. P. 30, or other types
of judicial relief, it could have stated that intention
expressly. See Chin, 470 Mass. at 532. Contrast G. L. c. 258D,
§ 1 (B) (ii) (eligible defendants include "those who have been
granted judicial relief by a state court of competent
jurisdiction"). Moreover, the phrase "overturned on appeal" has
remained unchanged in the statute despite the fact that the
8
Legislature has amended § 8 eight times since it was enacted in
1983. See St. 1983, c. 694, § 2; St. 1985, c. 794, § 9; St.
1989, c. 362, § 1; St. 1990, c. 150, § 341A; St. 1991, c. 138,
§§ 209, 210; St. 1994, c. 60, §§ 169-171; St. 1996, c. 151,
§§ 485, 486; St. 2002, c. 184, §§ 125-128; St. 2014, c. 260,
§§ 20-22.
The defendant's reliance on Commonwealth v. Zawatsky, 41
Mass. App. Ct. 392 (1996), to support his argument that he is
entitled to recoup the victim-witness assessment because the
conviction to which the assessment applied is void is misplaced.
In Zawatsky, supra at 397, 400-401, the Appeals Court set aside
$600 in victim-witness assessments, which were attributed to
specific convictions, where those convictions were vacated as
void because the District Court lacked subject matter
jurisdiction. The court determined that those assessments could
not stand where the supporting convictions were void. Id. at
400-401.
Here, although the defendant's guilty plea was vacated, the
District Court had proper subject matter jurisdiction. The
defendant's conviction was merely voidable, not void ab initio,
as the defendant suggests. See Lewis v. Commonwealth, 329 Mass.
445, 448 (1952) (erroneous original sentence merely voidable,
not void, until reversed, where court had proper jurisdiction).
"'A void judgment is one which, from its inception, was a
9
complete nullity and without legal effect.' . . . To be void, a
judgment must issue from a court that 'lacked jurisdiction over
the parties, lacked jurisdiction over the subject matter, or
failed to provide due process of law.'" McIntire, petitioner,
458 Mass. 257, 264 (2010), cert. denied, 563 U.S. 1012 (2011),
quoting Harris v. Sannella, 400 Mass. 392, 395 (1987).
Therefore, we conclude that the plain language of § 8 does
not provide a statutory basis for the refund of the victim-
witness assessment to the defendant. See Chamberlin, 473 Mass.
at 660.
2. Probation fees. The defendant argues that because his
conviction is void, equitable principles and fundamental
fairness require the return of the probation fees. As discussed
above, the defendant's conviction was not void; the judge merely
vacated the conviction to allow for a new trial, and the
Commonwealth declined to further prosecute the matter. See
McIntire, petitioner, 458 Mass. at 264; Lewis, 329 Mass. at 448.
The defendant's argument that equity requires the return of his
probation fees is unavailing.
Significantly, the defendant does not point to, nor did we
find, a statutory basis for the defendant to recoup his
probation fees. Compare G. L. c. 276, § 87A, with G. L.
c. 258B, § 8. The statute is silent as to a defendant's
entitlement to the return of probation fees after a conviction
10
is vacated. G. L. c. 276, § 87A. "We will not 'read into the
statute a provision which the Legislature did not see fit to put
there.'" Chin, 470 Mass. at 537, quoting Commissioner of
Correction v. Superior Court Dep't of the Trial Court for the
County of Worcester, 446 Mass. 123, 126 (2006).
We next address the defendant's assertion that the
statutory probation fees he paid were in fact impermissible
financial penalties or fines. See G. L. c. 280, § 6
(prohibition on costs imposed as penalty for crime). Section
87A provides, in pertinent part:
"The court shall assess upon every person placed on
supervised probation . . . a monthly probation supervision
fee . . . in the amount of [sixty dollars] per month. Said
person shall pay said probation fee once each month during
such time as said person remains on administrative
supervised probation. . . . The court shall also assess
upon every person placed on supervised probation . . . a
monthly probationer's victim services surcharge . . . in
the amount of [five dollars] per month. Said person shall
pay said victim services surcharge once each month during
such time as said person remains on supervised probation."
G. L. c. 276, § 87A. The statute also provides for the waiver
of probation fees where the court "has determined, after a
hearing and upon written finding, that such payment would
constitute an undue hardship on said person or his [or her]
family due to limited income, employment status[,] or any other
factor." Id.
The plain language of the statute specifically refers to
the monthly payments as "fees," rather than fines. Fees "are
11
charged in exchange for a particular governmental service which
benefits the party paying the fee in a manner 'not shared by
other members of society,' . . . and the charges [that] are
collected . . . [are] to compensate the governmental entity
providing the services for its expenses." Emerson College v.
Boston, 391 Mass. 415, 424-425 (1984). In contrast, "[a] fine
is a pecuniary imposition by way of punishment upon one who has
been convicted of [a] crime." Commonwealth v. Hersey, 324 Mass.
196, 206 (1949).
"[I]t can fairly be said that the intent of § 87A is
to defray the costs associated with the provision of
services to probationers, as an alternative to
imprisonment. The fees are assessed on all persons placed
on supervised probation, irrespective of the nature or
severity of their offenses, suggesting a nonpunitive,
regulatory purpose" (footnote omitted).
Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender
Registry Bd., 459 Mass. 603, 620 (2011) (Doe No. 10800).
Doe No. 10800 is instructive in addressing the defendant's
argument that the probation fees operate as punitive fines in
his circumstances. In that case, the plaintiff claimed that a
statutory "increase in his probation fees constitute[d] an
enhancement of his punishment, and, as such, violate[d] the ex
post facto clauses of the Federal and State Constitutions." Id.
at 617. In concluding that the statutory increase of probation
fees during the plaintiff's probationary term did not violate
either the Federal or State ex post facto clause, we explained
12
that the § 87A probation fees had a regulatory rather than
punitive purpose. See id. at 619. "The fees under § 87A are a
component of probation, the primary goals of which are
rehabilitation of a defendant and protection of the public; the
fees themselves suggest more of civil than a criminal
orientation." Id., citing Commonwealth v. Goodwin, 458 Mass.
11, 15 (2010). Moreover, we noted that "the language of § 87A
provides that the probation fees may be waived by the court on a
showing that their payment would constitute an undue hardship,
further suggesting that the fees are not intended to be a
criminal penalty." Doe No. 10800, supra at 619-620. Based on
the plain language of the statute and legislative intent, we
conclude that § 87A probation fees are nonpunitive regulatory
fees, rather than punitive fines.5
Conclusion. For the reasons stated above we conclude that
the plain language of G. L. c. 258B, § 8, does not provide the
5
During oral argument, the defendant conceded that the
probation fees were not fines or penalties. Instead, he appears
to argue that he is entitled to recoup the fees assessed during
the eight-month period of his unexcused absence from supervised
probation and that those fees became punitive because he did not
actually receive services during that period. Additionally, the
defendant argues that the fees should be returned to him to
prevent the Commonwealth's unjust enrichment. These arguments
are without merit. We decline the defendant's invitation to
fashion a remedy that would operate to entitle a defendant to
recoup probation fees upon vacation of a conviction, on the
basis of noncompliance with the terms of probation. Such a
remedy goes against the goals of probation and would incentivize
the rejection of rehabilitative services.
13
statutory basis for a refund of the victim-witness assessments
for convictions that are vacated after the withdrawal of a
guilty plea. Similarly, we conclude that G. L. c. 276, § 87A,
does not provide the statutory basis for the return of probation
fees where a defendant's conviction is subsequently vacated.
Therefore, we affirm the District Court judgment.
So ordered.