Commonwealth v. Pereira

93 Mass.App.Ct. 146

99 N.E.3d 835

COMMONWEALTH

v.Maria C. PEREIRA.

No. 16–P–975

Appeals Court of Massachusetts, Plymouth..

Argued December 4, 2017

Decided April 13, 2018

Robert A. O'Meara for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

Present: Sacks, Ditkoff, & Singh, JJ.

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 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’s) 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 $1,000 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 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 $1,000 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 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."

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 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 vacated the order of probation and asked for the probation officer's recommendation as to disposition.

The probation officer asked for a sentence of from 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, which is what she did, to threaten her brother." The judge sentenced the defendant to a term of from 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, 551 N.E.2d 1193 (1990). We reject the defendant's argument, under Commonwealth v. Henry, 475 Mass. 117, 55 N.E.3d 943 (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, 55 N.E.3d 943. 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 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, 55 N.E.3d 943.

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, 55 N.E.3d 943. Here, however, instead of...