Opinion
18-P-1491 19-P-27
02-04-2020
COMMONWEALTH v. Martin G. NICHOLAS (and a companion case ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In each of these two cases, the Commonwealth appeals from an order of a Superior Court judge, allowing each defendant's motion to terminate his probation following the expiration of the probationary period. Though the facts of the two cases are slightly different, they raise a common question: Must a defendant seeking to terminate probation upon expiration of the probationary period in a case in which payment of restitution was included among the conditions of probation, and in which a portion of the restitution remains unpaid, establish that he is unable to continue making payments of restitution in order for his probation to terminate? We conclude that no such showing is required, and affirm the orders in both cases.
Background. In 2003, the defendant Martin G. Nicholas was sentenced to fifteen years of probation after he pleaded guilty to one count of larceny over $250. See G. L. c. 266, § 30 (1). Among the conditions imposed on his probation was the condition that he pay restitution "in full" to the Huntington Lions Club in the amount of $83,275. Restitution was to be paid in monthly payments in an amount set by the probation department.
Nicholas abided by all of the conditions of his probation for the fifteen-year probationary period, without any violations. However, by the end of his probationary period on July 2, 2018, Nicholas had paid a total of only $33,445 in restitution.
There was one violation notice filed, but later withdrawn. The notice alleged Nicholas violated conditions of his probation by failing to perform the required amount of community service hours, failing to maintain full-time employment, and failing to maintain a job without access to money. Nicholas moved to modify the conditions of his probation, which was allowed, and the violation notice was withdrawn.
It appears from the record that the reason for the shortfall between the amount paid by Nicholas and the amount of restitution ordered by the sentencing judge was that the periodic installment payments directed by the probation department were inadequate to ensure full payment of restitution within the probationary period. Accordingly, a portion of the restitution amount remained unpaid, without violation by Nicholas of any probationary condition.
On July 25, 2018, after his probationary period had ended, Nicholas filed a motion to terminate his probation. In response, the Commonwealth filed a motion for discovery requesting "supporting documentation regarding [Nicholas's] financial ability (or inability) to pay the remaining restitution he owes to the Lions Club." After a hearing, the judge denied the Commonwealth's motion for discovery, and ordered that Nicholas's probation be terminated. The Commonwealth appealed.
In the companion case, the defendant Joseph M. Stanislawski pleaded guilty in 2014 to criminal charges and was sentenced to two and one-half years in the house of correction, followed by two years of probation. His term of probation began on June 3, 2016, and included a condition that he pay restitution in the amount of $9,398. Stanislawski's probation expired on June 3, 2018, after he had paid approximately $1,000 toward his restitution. At no point during the two-year period did the probation department file a notice of violation. As in the Nicholas case, Stanislawski filed a motion to terminate probation upon the expiration of the probationary period. The judge (who was the same judge as in the Nicholas case) allowed the motion, and the Commonwealth appealed.
The Commonwealth asserts that Stanislawski did not make any restitution payments between December 2017 and June 2018, in violation of the restitution payment schedule included among the conditions of his probation. However, the probation department filed no violation of probation by reason of such nonpayments, and the Commonwealth raised no issue concerning them, during the probationary period, and the record is silent regarding the circumstances surrounding the nonpayments. We note, however, that before filing his motion to terminate probation based on the expiration of the probationary period, Stanislawski had filed a motion to remove the order for restitution based on an inability to pay.
Before Stanislawski filed his motion to terminate probation, the Commonwealth moved for discovery on his previously filed motion to remove the order for restitution. See note 4, supra. A different judge allowed the motion for discovery, but the judge here vacated that order when he allowed the motion to terminate probation based on expiration of the probationary period.
Discussion. In both cases, the judge allowed the motions to terminate probation based on Commonwealth v. Henry, 475 Mass. 117 (2016). In Henry, the Supreme Judicial Court held that, in cases involving consideration of restitution as a condition of probation, "in determining whether to impose restitution and the amount of any such restitution, a judge must consider a defendant's ability to pay, and may not impose a longer period of probation or extend the length of probation because of a defendant's limited ability to pay restitution." Id. at 118. The Commonwealth nonetheless suggests that the judge in both cases was obliged to conduct an evidentiary hearing into whether the respective defendants had the ability to continue paying restitution before allowing the defendants' motions to terminate their probation, even though the probationary periods had expired, because substantial amounts of the previously-ordered restitution remained unpaid at the time the probationary periods ended. To the contrary, nothing in Henry supports the proposition that a court may extend the term of probation if a defendant who reaches the end of his probationary period without violating his probation is able to continue making payments toward unsatisfied restitution obligations. Indeed, Henry says precisely the opposite -- the length of probation should be based on a determination of "the appropriate length of the probationary period based on the amount of time necessary to serve the twin goals of rehabilitating the defendant and protecting the public," independent of the time required to allow full restitution. Id. at 125. "Once the judge has determined the appropriate length of the probationary period, restitution may be a condition of probation for the length of that period at the maximum amount that the defendant is able to pay, provided the total amount does not exceed the actual loss." Id.
We note that the terms of the probation imposed in both cases were established before Henry was decided. In Nicholas's case in particular (as the Commonwealth conceded at oral argument), it appears that the length of the probationary period was designed for precisely the reason Henry forbids -- to allow sufficient time for payment of the full amount of restitution required. See Henry, 475 Mass. at 124. However, as we have observed, see note 3, supra, despite the fifteen-year term of probation, the payment schedule set by the probation department (apparently based on Nicholas's ability to pay at the time it was established) was inadequate to satisfy the full amount of restitution within the probationary term.
The Commonwealth's contention that the judge was obliged to conduct an evidentiary hearing into the defendants' ability to continue paying restitution rests on the false premise that the term of probation should be extended if the defendant is able to continue making restitution payments toward satisfaction of unpaid restitution amounts. We accordingly affirm the orders terminating the defendants' probation in both cases.
At oral argument the Commonwealth raised an alternative theory: that, at least in Stanislawski's case, an evidentiary hearing was required to determine whether his failure to make certain required restitution payments during the probationary period constituted a violation of the conditions of his probation during the probationary period, despite an ability to have made them. Even as to Nicholas (who made all payments required by the schedule established by the probation department), the Commonwealth contends that the judge should have conducted a hearing to determine whether the defendant had the ability to make payments in amounts greater than those established by the probation department. Accordingly, the Commonwealth suggests that a remand is required in both cases to permit such an inquiry. However, the Commonwealth did not make that argument to the judge, or even in its briefs on appeal. We accordingly decline to consider it, as "[w]e do not address arguments raised for the first time at oral argument." Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 700 n.14 (2016). See Mass. R. A. P. 16 (a) (4) (9) (A), as appearing in 481 Mass. 1629-1630 (2019).
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Orders terminating probation affirmed.