Opinion
No. 18-P-135
09-27-2019
COMMONWEALTH v. Heather DRAGOTTA.
Patrick Levin, Committee for Public Counsel Services, for the defendant. Kayla M. Johnson, Assistant District Attorney, for the Commonwealth.
Patrick Levin, Committee for Public Counsel Services, for the defendant.
Kayla M. Johnson, Assistant District Attorney, for the Commonwealth.
Present: Hanlon, Desmond, & Shin, JJ.
DESMOND, J. The single issue in this case is whether, in light of Commonwealth v. Martinez, 480 Mass. 777, 109 N.E.3d 459 (2018), Massachusetts is required to reimburse the defendant's probation service fees paid to the New Hampshire Department of Corrections after her conviction was overturned in Massachusetts. Because it was a Massachusetts judge who issued the order to pay the probation service fees under G. L. c. 276, § 87A, we conclude that Massachusetts must bear the burden of reimbursing them to the defendant. Accordingly, we reverse the order denying the defendant's motion for the return of probation supervision fees.
Background. The underlying facts are undisputed. The defendant, Heather Dragotta, was convicted in Massachusetts of wantonly or recklessly permitting another to commit an assault and battery on a child causing bodily injury. She was sentenced to two years of incarceration, with two months to serve and the balance suspended for a five-year probationary term. The defendant, a resident of New Hampshire, had her probation supervised in that State, and she paid "monthly probation fees" to the New Hampshire Department of Corrections. After her conviction was overturned by the Supreme Judicial Court, the defendant filed a motion for return of property in Superior Court, seeking the reimbursement of $837 in probation service fees. The judge, without the benefit of Martinez, denied the request, reasoning that "[a] probationer receives something of value for probationary supervision." The defendant timely appealed.
We need not recite the full background facts of the defendant's conviction, which were described in detail in Commonwealth v. Dragotta, 476 Mass. 680, 71 N.E.3d 502 (2017).
This is in accordance with the Interstate Compact for Adult Offender Supervision (ICAOS).
She paid twenty-five dollars each month to the New Hampshire Department of Corrections.
During the pendency of the appeal, the Supreme Judicial Court held in Martinez that probation fees must be returned when a defendant's conviction is overturned:
"Where a judge sentences a defendant to probation on a single conviction, monthly probation fees ordered under G. L. c. 276, § 87A, are paid by the defendant as a direct consequence of that conviction. Therefore, any amount paid by the defendant is ‘taken from [him or] her solely on the basis of a conviction,’ Nelson [ v. Colorado], ––– U.S. ––––, 137 S. Ct. [1249,] 1257, 197 L.Ed.2d 611 [ (2017) ], and must be returned in full once the conviction is invalidated and it is determined that the case will not or cannot be retried."
Martinez, 480 Mass. at 785, 109 N.E.3d 459.
The Commonwealth does not contend that the Martinez factors have not been satisfied in this case. Instead, the Commonwealth argues that Massachusetts has no obligation to refund the defendant's probation service fees because they were paid to the New Hampshire Department of Corrections. Discussion. We review an order denying a motion to return property for an abuse of discretion. An abuse of discretion occurs when "the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014).
Implicit in the Commonwealth's brief is the acknowledgment that the defendant is entitled to have her probation service fees returned.
Probation service fees must be "returned in full" to a defendant when they are ordered under G. L. c. 276, § 87A, and are paid as a direct consequence of an overturned conviction. Martinez, 480 Mass. at 785, 109 N.E.3d 459. We agree with the defendant that Martinez requires Massachusetts to return her probation service fees, notwithstanding the fact that they were paid to an entity in another State. The New Hampshire Department of Corrections is a third-party that simply provided the probation services that were ordered by a Massachusetts judge. Throughout the course of the probationary period, Massachusetts retained ultimate control over the defendant's disposition. New Hampshire had no hand in ordering the defendant to pay the probation service fees. Accordingly, we are not persuaded by the Commonwealth's argument that probation service fees paid to other States are akin to restitution payments. See Martinez, 480 Mass. at 789, 109 N.E.3d 459 ("we recognize that it is another matter to order the Commonwealth to repay a defendant for restitution that the Commonwealth never received because that restitution was paid to a private victim"). Probation service fees are easily distinguishable from restitution payments. Restitution is paid to the victim of a crime, and constitutes "money or services which a court orders a defendant to pay or render to a victim as part of the disposition." G. L. c. 258B, § 1. Probation service fees, on the other hand, are paid monthly to compensate for government expenses. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 620, 947 N.E.2d 9 (2011) ("it can fairly be said that the intent of [probation service fees] is to defray the costs associated with the provision of services to probationers, as an alternative to imprisonment"). Here, the probation service fees were paid to another State's Department of Corrections only because, under the ICAOS, that State agreed to supervise the defendant's probation on Massachusetts's behalf.
Pursuant to the ICAOS, the sentencing State "retains jurisdiction over the probationer and may ‘retake’ him or her at any time for any reason." Goe v. Commissioner of Probation, 473 Mass. 815, 822-823, 46 N.E.3d 997 (2016). "If the probationer were to commit a significant violation of probation," the supervising State cannot institute revocation proceedings and any such proceeding would occur in the sentencing State, "subject only to a hearing in [the supervising State] establishing probable cause for the violation." Id. at 823, 46 N.E.3d 997.
The Commonwealth's position that the defendant should seek a refund of the fees in New Hampshire undercuts the core tenets of Nelson and Martinez. See Nelson, 137 S. Ct. at 1258 ("To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated"); Martinez, 480 Mass. at 785, 109 N.E.3d 459 ("The overriding principle is that where a defendant has been ordered to make a payment because of a conviction, the invalidation of that conviction erases the State's claim to that payment, and any amount paid must be restored to the defendant as a matter of due process"). Requiring a wrongfully convicted defendant to seek reimbursement of probation service fees from the supervising State could involve a more complicated and time-consuming process than seeking reimbursement from Massachusetts, and the costs and effort associated with such an endeavor could easily surpass the fees paid by the defendant, resulting in a chilling effect.
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For the forgoing reasons, the order denying the defendant's motion to return probation supervision fees is reversed.
So ordered.