Commonwealth v. Bruno-O'Leary

111 N.E.3d 1095

COMMONWEALTH

v.Karen BRUNO-O'LEARY.

No. 16-P-1508

Appeals Court of Massachusetts, Plymouth..

Argued March 2, 2018

Decided September 19, 2018

Pamela Lindmark, Newton, for the defendant.

Johanna S. Black, Assistant District Attorney, for the Commonwealth.

Present: Wolohojian, Massing, & Englander, JJ.

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 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 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 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 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, 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 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, 656 N.E.2d 577 (1995). When the alleged violation is the failure to make payments imposed as a term or condition of probation, the Commonwealth must show that the violation was wilful. See Commonwealth v. Henry, 475 Mass. 117, 121-122, 55 N.E.3d 943 (2016) ; Commonwealth v. Canadyan, 458 Mass. 574, 579, 944 N.E.2d 93 (2010) ; Commonwealth v. Pereira, 93 Mass. App. Ct. 146, 152 & n.7, 99 N.E.3d 835 (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, 55 N.E.3d 943. See Bearden v. Georgia, 461 U.S. 660, 669 n.10, 103 S.Ct. 2064, 76 L.Ed.2d 221 (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, 55 N.E.3d 943. 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, 99 N.E.3d 835. See Henry, supra at 124 n.6, 55 N.E.3d 943, quoting Bearden, supra at 668, 103 S.Ct. 2064 ("If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection"); Commonwealth v. Gomes, 407 Mass. 206, 213, 552 N.E.2d 101 (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 [971 N.E.2d 291] (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

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