Commonwealth v. Bruno-O'Leary , 111 N.E.3d 1095 ( 2018 )

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16-P-1508 Appeals Court
COMMONWEALTH vs. KAREN BRUNO-O'LEARY.
No. 16-P-1508.
Plymouth. March 2, 2018. - September 19, 2018.
Present: Wolohojian, Massing, & Englander, JJ.
Practice, Criminal, Probation, Revocation of probation,
Restitution, Findings by judge. Restitution.
Indictment found and returned in the Superior Court
Department on May 2, 2008.
A proceeding for revocation of probation was had before
Cornelius J. Moriarty, II, J.
Pamela Lindmark for the defendant.
Johanna S. Black, Assistant District Attorney, for the
Commonwealth.
MASSING, J. A Superior Court judge revoked the defendant
Karen Bruno-O'Leary's probation and imposed a previously
suspended two-year term of imprisonment because she failed to
make restitution payments. Although the judge disbelieved the
defendant's testimony that she could not afford the payments, he
2
did not sufficiently consider her financial resources and
obligations before deciding to find her in violation. Without
such findings, the record does not support the judge's
conclusion that the defendant wilfully refused to pay
restitution. Because we are left with a definite and firm
conviction that an error has been made, we vacate the finding of
violation and the revocation order.1
Background. The defendant's imprisonment came more than
seven years after a protracted period of probation that began on
January 29, 2009, when she pleaded guilty to an indictment
charging a single count of larceny over $250.2 The plea judge
sentenced her to a suspended house of correction term of two and
one-half years, with a five-year probationary period, and
ordered the defendant to pay $98,000 in restitution: $10,000 to
1 The defendant has served the maximum sentence for her
conviction. The appeal is not moot, however, because the
revocation of probation may have collateral consequences. See
Commonwealth v. Wilcox, 446 Mass. 61, 61 n.1 (2006); Blake v.
Massachusetts Parole Bd., 369 Mass. 701, 703-704 (1976).
2 The indictment alleged that the defendant "on diverse
dates on or between August 31, 2006 through November 20, 2007,
. . . pursuant to a single scheme, did steal or with intent to
defraud obtain by a false pretense, or did unlawfully, and with
intent to steal or embezzle, convert, or secrete with intent to
convert, the property of Summer Hill Condominium Owners the
value of such property exceeding two hundred and fifty dollars,"
in violation of G. L. c. 266, § 30. The record before us is
silent about the nature of the crime. Based on the restitution
order, we infer that it involved a substantial sum.
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be paid the next day, and the remainder to be paid in accordance
with a schedule to be determined by the probation department.
The probation department issued the defendant several
violation notices over the course of her probationary period,
primarily for failure to make restitution payments, but also for
technical violations and new criminal behavior.3 It soon became
apparent that the defendant's ability to make restitution
payments was an issue. At a probation violation hearing held on
March 21, 2012, the plea judge suspended the defendant's
restitution obligation based on her indigency and ordered the
probation department to interview the defendant every four
months to assess her ability to pay. On June 26, 2013, the
probation department reported to a second judge -- the judge who
would ultimately impose the suspended sentence, referred to
hereinafter as "the judge" -- that the defendant remained
indigent. The judge continued the case for further review of
the defendant's financial status.
On December 16, 2013, the probation department issued
another violation notice, this time alleging failure to pay
restitution of $89,000. On January 10, 2014, with the end of
the defendant's original five-year probationary period
3 From the record before us, it does not appear that the
defendant was ever held in violation based on allegations of
criminal conduct, or that she was convicted of any additional
crimes.
4
approaching, a third judge found the defendant in violation and
extended her probation for one year, to January 29, 2015. Five
months later, the defendant filed a motion to reconsider her
restitution obligation. At a hearing held on July 14, 2014, the
plea judge extended the defendant's probation for another year,
until January 29, 2016, and once again ordered the probation
department to review the defendant's finances every four months
to determine her ability to pay. The plea judge further ordered
that "probation be terminated on [January 29, 2016,] upon
successful completion of probation even if there is a balance
left in restitution amount."
The probation department filed yet another violation notice
on September 11, 2014. The judge found the defendant in
violation on April 2, 2015, and ordered her to be held without
bail pending sentencing.4 On July 6, 2015, the judge ordered the
defendant to be released and issued a new order of probation:
he extended the defendant's probation for a third time,5 until
4 The September 11, 2014, notice was based on a complaint
for credit card fraud dated April 30, 2014. Although the record
does not reveal the basis for the judge's finding of a
violation, the judge later commented, "I revoked the bail
because I wanted her to understand the significance of what she
was doing and what the consequences were. . . . She has to know
what the consequences of the failing to -- you know, to abide by
the order are."
5 All three extensions, and the final probation revocation
hearing, occurred prior to the issuance of Commonwealth v.
5
July 6, 2018; ordered her to pay $300 per month in restitution
starting August 5, 2015; and ordered her to submit an affidavit
detailing her assets and personal property by that date. The
defendant provided the affidavit and made a partial restitution
payment in August, 2015, a full payment in September, a partial
payment in October, and no payments thereafter. The probation
department issued another violation notice on December 14, 2015,
for failure to make restitution payments.
At the final probation revocation hearing held on March 25,
2016, the defendant stated that she could no longer afford the
$300 monthly restitution payments because her financial
situation changed drastically in August, 2015. Her testimony,
supplemented by a revised affidavit submitted at the hearing,
showed that she and her two children received total monthly
Social Security disability benefits of $2,087; she also received
$324 per month in food stamps. She was unemployed and actively
searching for work, which her felony conviction made difficult.
She had enrolled in an online medical transcription certificate
program so she could work from home. Her husband, who had been
receiving workers' compensation payments since September, 2015,
Henry, 475 Mass. 117 (2016). As discussed infra, Henry
articulated the legal standard for determining a defendant's
ability to pay restitution, id. at 126-127, and established that
extending the length of probation merely because the probationer
is unable to pay restitution is improper. Id. at 124.
 6
had lost his job in January, 2016. Neither the defendant nor
her husband had any retirement savings, bank accounts, or
stocks. The family used a car that they borrowed from the
defendant's mother-in-law.
As to expenses, the family rented a three-bedroom house for
$1,695 per month. In order to pay the $1,600 heating oil bill
for the winter, they had not paid the electric bill and owed
$1,400. The defendant and her husband paid $105 per month for
two cellular telephones (cell phones) and cell phone service.
The defendant recalled that during the last restitution hearing,
when the judge set the amount at $300 per month, the judge said
"that the monthly restitution payment could be adjusted if [she]
was unable to make the set monthly payments."
After hearing the defendant's testimony, the judge said
that he simply did not believe her. "She was told that if
[there are] issues with payment, . . . come back in. And she
never did. . . . I don't believe her; okay? I just don't.
She's had her chances, multiple chances. And she has just
simply decided that she's going to do what she wants to do."
The judge found the defendant in violation and revoked bail. At
defense counsel's request, the judge agreed to delay final
disposition for one week (until April 1, 2016) to allow counsel
to brief the legal issues concerning the revocation of the
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defendant's probation in light of her professed inability to
pay.
At the April 1, 2016, hearing, the judge entertained the
defendant's motion to reconsider his determination that she had
violated the terms of her probation. The judge reiterated his
finding that "her violation of probation is willful," and that
he had "grave doubts about her credibility." For example, the
judge noted that the defendant's winter heating bills would not
have affected her ability to make restitution payments in
October or November. Concluding that the defendant "made very
little effort over the past seven years to make this good," the
judge revoked the defendant's probation and ordered the
defendant committed to serve the balance of her suspended
sentence.6
Discussion. In probation revocation proceedings, the
Commonwealth bears the burden of proving, by a preponderance of
the evidence, that the probationer violated the terms and
conditions of her probation. See Commonwealth v. Holmgren, 421
Mass. 224, 226 (1995). When the alleged violation is the
failure to make payments imposed as a term or condition of
During the revocation hearings, defense counsel alerted
6
the judge that the original sentence of two and one-half years
in a house of correction exceeded the maximum sentence to a
house of correction permitted by G. L. c. 266, § 30. The judge
entered a corrected sentence of two years.
8
probation, the Commonwealth must show that the violation was
wilful. See Commonwealth v. Henry, 475 Mass. 117, 121-122
(2016); Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010);
Commonwealth v. Pereira, 93 Mass. App. Ct. 146, 152 & n.7
(2018).
Inability to pay negates wilfulness. "A defendant can be
found in violation of a probationary condition only where the
violation was wilful, and the failure to make a restitution
payment that the probationer is unable to pay is not a wilful
violation of probation." Henry, 475 Mass. at 121. See Bearden
v. Georgia, 461 U.S. 660, 669 n.10 (1983) ("[B]asic fairness
forbids the revocation of probation when the probationer is
without fault in his failure to pay [a] fine"). Furthermore,
the defendant's mere ability to pay restitution is not enough.
Unless a defendant can pay restitution "without causing
substantial financial hardship" to herself and her dependents,
failure to pay restitution is not wilful. Henry, supra at 127.
Conversely, "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." Pereira, 93 Mass. App. Ct. at 152 n.7.
See Henry, supra at 124 n.6, quoting Bearden, supra at 668 ("If
the probationer has willfully refused to pay the fine or
restitution when he has the means to pay, the State is perfectly
9
justified in using imprisonment as a sanction to enforce
collection"); Commonwealth v. Gomes, 407 Mass. 206, 213 (1990)
("No constitutional difficulty is posed by the incarceration of
a defendant who refuses or neglects to pay a fine").
When a judge is considering an order of restitution as a
component of a criminal sentence, and the defendant asserts an
inability to pay, the defendant bears the burden of establishing
her lack of means by a preponderance of the evidence:
"Where 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.
See Commonwealth v. Porter, 462 Mass. 724, 732-733 (2012)
(defendant bears burden of persuasion regarding indigency,
in part because '[a] criminal defendant is the party in
possession of all material facts regarding her own wealth
and is asserting a negative'). Cf. United States v.
Fuentes, 107 F.3d 1515, 1532 (11th Cir. 1997) (regarding
restitution, 'the defendant must establish her financial
resources and needs by a preponderance of the evidence')."
Henry, 475 Mass. at 121. We have indicated that the probationer
also bears the burden of proving inability to pay as a defense
in probation violation proceedings. See Pereira, 93 Mass. App.
Ct. at 152 n.7.7
The defendant contends that the judge erred in determining
that she failed to show an inability to pay and therefore
wilfully violated the restitution order. "On appeal, we are
7 In Pereira, 93 Mass. App. Ct. at 151, unlike the case
before us, the defendant "offered no actual evidence of her
inability to make the payments."
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bound by a judge's findings of fact that are supported by the
evidence, including all inferences that may reasonably be drawn
from the evidence." Klairmont v. Gainsboro Restaurant, Inc.,
465 Mass. 165, 183 (2013), quoting Twin Fires Inv., LLC v.
Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005).
"The credibility of witnesses, particularly, is a preserve of
the trial judge upon which an appellate court treads with great
reluctance." Springgate v. School Comm. of Mattapoisett, 11
Mass. App. Ct. 304, 310 (1981). "But it is not forbidden
territory. There are exceptional cases 'where such findings
have been changed in whole or in part on appeal, because plainly
wrong.'" Id., quoting Spiegel v. Beacon Participations, Inc.,
297 Mass. 398, 407-408 (1937). "A finding is clearly erroneous
[and thus not supported by evidence] when there is no evidence
to support it, or when, 'although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been made.'"
Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 (2003),
quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). This is
such a case.
The evidence was uncontested that the defendant was not
employed and that Social Security disability benefits and food
stamps were her only sources of income. She was also, together
with her unemployed husband, supporting two children. The judge
11
inferred that her failure to pay must have been wilful because
she chose to make partial payments in some months and made no
payments in others, without informing the probation department
that she could no longer afford to make the payments.8 However,
the judge did not have the benefit of the Henry decision, which
was issued approximately four months after the hearings in this
case, and his findings "do not indicate that the judge
sufficiently considered, as required, the matter of '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 . . . her
dependents.'" Commonwealth v. Vallejo, 480 Mass. 1001, 1002
(2018), quoting Henry, 475 Mass. at 126.
Indeed, the record suggests the opposite. The judge
appeared to consider whether the defendant had the mere ability
to pay, noting that she had the money to pay for other
8 Of course, before ordering restitution payments, "the
judge should 'consider whether the defendant is financially able
to pay the amount ordered.'" Henry, 475 Mass. at 120, quoting
Commonwealth v. Nawn, 394 Mass. 1, 7 (1985). "To allow a judge
to impose a restitution amount that the defendant cannot afford
to pay simply dooms the defendant to noncompliance." Henry,
supra at 122. The record before us does not include a
transcript of the July, 2015, hearing during which the judge
revised the terms of the defendant's probation to include
restitution payments of $300 per month, and the defendant does
not assert that the order was wrongly imposed.
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necessities such as heating and a cell phone.9 Yet the question
is not whether the defendant is able to pay restitution, but
whether she can do so "without causing substantial financial
hardship" to herself or her dependents. Henry, supra at 127.
The judge, without the guidance of Henry, did not consider the
defendant's ability to pay under this standard.10
The defendant exercised poor judgment by failing to heed
the judge's admonition that she "come back in" if she found
herself unable to afford the court-ordered restitution payments.
However, the judge did not make it a condition of the
defendant's probation that she provide updates on her financial
status. See id. at 126 ("The defendant may be required to
9 The judge erred when, during the April 1, 2016, hearing,
he asked to see the defendant's cell phone, noted that he knew
its value to be $600 because he had the same one, and drew a
negative inference about her credibility on that basis. "It is
. . . plainly accepted that the judge is not to use from the
bench, under the guise of judicial knowledge, that which he
knows only as an individual observer outside of court." Duarte,
petitioner, 331 Mass. 747, 749 (1954), quoting Wigmore on
Evidence § 2569 (3d ed. 1940). Moreover, the judge did not
provide the defendant with an opportunity to explain why, as a
mother of two young children, she may have needed a reliable
cell phone.
10In An Act Relative to Criminal Justice Reform, St. 2018,
c. 69, the Legislature amended several statutes regarding
criminal defendants' indigency and ability to seek waiver of
certain fees by inserting the "substantial financial hardship to
the individual, the individual's immediate family or the
individual's dependents" standard derived from Henry. See id.
at §§ 35-36, 100, 105, 112, 129, 133, 135, 149-151, 158, 163-
165, 181-182, 184, 208-209, 211, 213.
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report to his or her probation officer any change in the
defendant's ability to pay"). And her failure to do so does not
support the judge's conclusion that she could afford to make the
payments. See Commonwealth v. Jones, 9 Mass. App. Ct. 83, 90-91
(1980), quoting McDonough v. Vozzela, 274 Mass. 552, 558 (1924),
and Carmichael v. Carmichael, 324 Mass. 118, 121 (1949) ("[I]t
is well settled that '[m]ere disbelief of testimony is not proof
of facts of an opposite nature or tendency,' and that 'such
disbelief [will] not be [the] equivalent of proof to the
contrary'"). While the judge was free to reject the defendant's
testimony on credibility grounds, lacking a full consideration
of the Henry factors, the record does not afford a reasonable
basis for finding that the defendant wilfully violated the terms
of probation.
"To be sure, the defendant bore the burden of persuasion,
but the judge's findings were inadequate to support the
conclusion that the defendant had an ability to pay
restitution." Vallejo, 480 Mass. at 1002. Accordingly, the
finding of a violation must be vacated. In view of the fact
that the defendant has fully served her sentence, however, there
is no occasion to remand the case for further proceedings. In
addition, we note that the defendant's original five-year
probationary period was extended three times for her inability
to pay restitution. These extensions were ordered prior to the
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issuance of the Henry decision, in which the court declared
"that a judge may not extend the length of probation where a
probationer violated an order of restitution due solely to an
inability to pay." Henry, 475 Mass. at 124. Any further
extension of her probation would be impermissible.
Conclusion. The order of March 25, 2016, finding the
defendant in violation of the terms of her probation, and the
order of April 1, 2016, revoking probation, are vacated. An
entry shall be made on the Superior Court docket that the
defendant is discharged and her probation is terminated.
So ordered.