Practice, Criminal, Restitution, Probation, Findings by
Rebecca Kiley, Committee for Public Counsel Services, for the
P. Zanini, Assistant District Attorney, for the Commonwealth.
Nimni, Jason D. Frank, A. Lauren Carpenter, & Michelle
Andrighetto, for Committee for Civil Rights and Economic
Justice & others, amici curiae, submitted a brief.
defendant, Mariezel Vallejo, admitted to facts sufficient for
a finding of guilty of operating a motor vehicle while under
the influence of intoxicating liquor, in violation of G. L.
c. 90, § 24 (1) (a) (1). Her operator's
license was suspended, and she received a continuance without
a finding for one year, with probationary conditions
including payment of $140 in restitution. The defendant
appealed, claiming (in part) that the judge erred in finding
that she had an ability to pay restitution. We allowed the
defendant's application for direct appellate review.
Because we conclude that the judge failed to make adequate
findings to support an order of restitution, we vacate so
much of the order as required payment of restitution, and
remand for further proceedings.
may order a defendant to pay restitution to a victim as a
condition of his or her probation. See Commonwealth v.
McIntyre, 436 Mass. 829, 833-834 (2002). Such an order
has a dual purpose: it serves not only "to compensate
the victim for his or her economic loss tied to the
defendant's conduct, but also to make the defendant pay
for the damage [that] he or she caused as a punitive and
rehabilitative sanction." Commonwealth v.
Williams, 57 Mass.App.Ct. 917, 918 (2003). Before any
such order may be entered, however,
"the judge must determine the amount the defendant is
able to pay. See [Commonwealth v. Nawn, 394 Mass. 1,
8-9 (1985)]. 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')."
Commonwealth v. Henry, 475 Mass. 117, 121, 122
(2016) ("imposing restitution that the defendant will be
unable to pay violates the fundamental principle that a
criminal defendant should not face additional punishment
solely because of his or her poverty"). See
Commonwealth v. Gomes, 407 Mass. 206, 212 (1990),
quoting Tate v. Short, 401 U.S. 395, 398 (1971)
("Generally, 'the Constitution prohibits the State
from imposing a fine as a sentence and then automatically
converting it into a jail term solely because the defendant
is indigent and cannot forthwith pay the fine in full").
case, the defendant testified that she lived in low income
housing, that she was not currently working because of a back
injury, and that she had no income. Although the judge's
findings referenced the back injury, they 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."
Henry, 475 Mass. at 126. 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.
therefore vacate the order for restitution and remand the
case to the trial court for reconsideration of the question
of restitution consistent with this opinion.
 The defendant additionally argues that
the restitution order exceeded its permissible scope, because
the restitution amount consisted of the wages the judge
determined the victim had lost due to her appearance at the
restitution hearing. Concluding, as we do, that the
judge's findings were inadequate to support any order of
restitution, we do not address that additional argument. Nor
do we attempt here to define the "full contours of
restitution, or the differences between restitution and the
damages that are compensable in a civil action."
Commonwealth v. Casanova, 65 Mass.App.Ct. 750, 754
n.7 (2006). See Commonwealth v. Denehy, 466 Mass.
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