Supreme Judicial Court of Massachusetts, Essex, Middlesex
Heard: September 7, 2018
received and sworn to in the Haverhill Division of the
District Court Department on July 13, 2009.
motion for restitution of costs and fees, filed on June 12,
2017, was heard by Stephen S. Abany, J., and questions of law
were reported by him to the Appeals Court.
Supreme Judicial Court granted an application for direct
received and sworn to in the Framingham Division of the
District Court Department on August 10 and September 14,
motion for return of property, filed on August 25, 2017, was
heard by David W. Cunis, J., and questions of law were
reported by him to the Appeals Court.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Benjamin H. Keehn, Committee for Public Counsel Services
(Nancy J. Caplan & Eric Brandt, Committee for Public
Counsel Services, also present) for the defendants.
Jessica Langsam & Robert E. Toone, Assistant District
Attorneys, for the Commonwealth.
M. Joss, Special Assistant Attorney General, for
Massachusetts Probation Service.
Ryan, Daniel N. Marx, & William W. Fick, for Stacy Foster
& others, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Nelson v. Colorado, 137 S.Ct.
1249, 1252 (2017), the United States Supreme Court held that
"[w]hen a criminal conviction is invalidated by a
reviewing court and no retrial will occur," the State is
required under the due process clause of the Fourteenth
Amendment to the United States Constitution "to refund
fees, court costs, and restitution exacted from the defendant
upon, and as a consequence of, the conviction." There
can be no doubt that, because of this controlling authority,
Massachusetts courts are required to order the refund of
fees, court costs, and restitution paid by a defendant as a
consequence of a later invalidated conviction. These two
cases, however, present ten reported questions regarding the
scope and application of the due process obligations
established in the Nelson decision. We have
reformulated the reported questions into three broader
questions to provide guidance to trial courts and litigants
regarding the repayment of probation fees, victim-witness
assessments, restitution, fines, forfeitures, and court costs
after a conviction has been invalidated.
2010, Jose Martinez pleaded guilty in District Court to three
counts of possession of a controlled substance with intent to
distribute and one count of unlicensed operation of a motor
vehicle. On the three drug convictions, Martinez received
concurrent sentences of one year in a house of correction,
suspended, with two years of probation supervision. On one of
his drug convictions, Martinez was also ordered to pay $1,
000 in restitution to the Haverhill police department,
monthly fee of sixty-five dollars, as required under G. L. c.
276, § 87A, for those placed on supervised probation,
a victim-witness assessment of ninety dollars, as required
under G. L. c. 258B, § 8, for those convicted of a
felony. On his conviction for unlicensed operation
of a motor vehicle, Martinez was ordered to pay a fine of one
hundred dollars. After being sentenced on his drug
convictions, Martinez paid a total of $2, 650: $1, 000 in
restitution, $1, 560 in monthly probation supervision fees,
and a victim-witness assessment of ninety dollars.
April 19, 2017, Martinez's drug convictions were vacated
and dismissed with prejudice pursuant to the single
justice's order arising from our decision in
Bridgeman v. District Attorney for
Suffolk Dist., 476 Mass. 298 (2017) (Bridgeman
II), because the convictions were tainted by the
misconduct of Annie Dookhan, a chemist who was employed by
the William A. Hinton State Laboratory Institute when the
drugs seized from Martinez were examined by that laboratory.
Martinez's misdemeanor conviction of unlicensed operation
of a motor vehicle was not dismissed.
being informed that his drug convictions had been dismissed
with prejudice, Martinez filed a motion for the return of his
probation supervision fees, victim-witness assessment, and
restitution payment. The judge, without ruling on the motion,
reported the matter and seven questions of law to the Appeals
Court pursuant to Mass. R. Crim. P. 34. We allowed the
defendant's motion for direct appellate review.
October 8, 2008, Stephanie Green was sentenced in District
Court on two drug-related counts arising from a complaint
that had been filed after a search warrant had been executed
at her residence on August 9, 2007. Green was placed on
supervised probation for two years on each count, to be
served concurrently. On one of these counts, Green was
assessed a probation fee of sixty-five dollars per month and
a victim-witness assessment of fifty dollars. The judge at
sentencing also allowed the Commonwealth's motion for the
forfeiture of $1, 411.63 seized from Green's home during
same day, before the same judge, Green was sentenced on four
other drug-related counts arising from a complaint that had
been filed after a search warrant had been executed at
Green's hotel room on September 14, 2007. On counts one
and two, Green was sentenced to one year in a house of
correction, suspended for two years, with two years of
supervised probation. She also was ordered to pay fines
totaling $4, 000 and surfines totaling $1, 000. On count one,
Green was further ordered to pay a victim-witness assessment
of fifty dollars. On count four, she was placed on probation
for two years. On count seven, she was sentenced to a term of
thirty days in a house of correction, to be served on
April 19, 2017, Green's convictions were vacated and
dismissed with prejudice pursuant to the single justice's
order arising from Bridgeman II. Green then moved
for a refund of the $8, 071.63 she had paid after being
sentenced on the drug convictions arising from the two
complaints: $1, 411.63 in forfeited cash, $1, 560 in
probation fees, one hundred dollars in victim-witness
assessments, and $5, 000 in fines and surfines.The judge, without
ruling on the motion, reported the matter and three questions
of law to the Appeals Court pursuant to Mass. R. Crim. P.
We transferred the case to this court on our own motion, and
now consider the reported questions in conjunction with those
reported in Martinez's case.
sake of providing clear and simple guidance to trial courts
and litigants regarding the scope and application of the due
process obligation announced in Nelson, we have
exercised our authority to reformulate the reported questions
into three more general questions. See Commonwealth
v. Eldred, 480 Mass. 90, 93-94 (2018)
(reformulating reported question to make it answerable on
existing record); Tedford v.
Massachusetts Hous. Fin. Agency, 390 Mass. 688,
692-693 (1984) (summarizing reported questions). See also
McStowe v. Bornstein, 377 Mass.
804, 805 n.2 (1979) ("[r]eported questions need not be
answered . . . except to the extent that it is necessary to
do so in resolving the basic issue"). The questions are:
1. What is the scope of the due process obligation to refund
money paid by a defendant "upon, and as a consequence
of" a conviction that has been invalidated?
Nelson, 137 S.Ct. at 1252.
2. What is the procedure to be used to determine a
defendant's entitlement to a refund and the amount to be
refunded, and who bears the burden of proof?
3. Where a judge determines that a defendant is entitled to a
refund, how will payment of the refund be accomplished?
we address these questions, it is important to understand the
context and reasoning of the Supreme Court's opinion in
Nelson. There, two defendants were convicted of
various crimes and ordered to pay court costs and fees, which
went to two funds -- a "victim compensation fund"
and a "victims and witnesses assistance and law
enforcement fund." Nelson, 137 S.Ct. at 1253
nn.1, 2. In addition, the defendants were ordered to pay
restitution to the victims of their crimes. Id. at
1253. See People v. Madden, 364
P.3d 866, 867-868 (Colo. 2015); People v.
Nelson, 362 P.3d 1070, 1073 (Colo. 2015). All counts
of their convictions were later invalidated. Nelson,
supra at 1258.
defendants then moved for the return of the court costs,
fees, and restitution they had paid. Id. at 1253.
The Supreme Court of Colorado held that such a refund could
be ordered only with statutory authority, and that the
exclusive process for exonerated defendants to seek such a
refund was through the Compensation for Certain Exonerated
Persons act, a Colorado law allowing defendants whose
convictions had been invalidated to receive a refund of
fines, penalties, costs, and restitution only after they
proved their innocence by clear and convincing evidence in a
separate civil proceeding. Nelson, 137 S.Ct. at
United States Supreme Court reversed the judgment, holding
that a scheme whereby "a defendant must prove [his or]
her innocence by clear and convincing evidence to obtain the
refund of costs, fees, and restitution paid pursuant to an
invalid conviction . . . does not comport with due
process." Id. at 1255. The Supreme Court
evaluated the defendants' due process claims under the
balancing test established in Mathews v.
Eldridge, 424 U.S. 319, 335 (1976), which requires
courts to weigh (1) the private interests affected; (2) the
risk that the procedures used will result in erroneous
deprivation of those interests; and (3) the governmental
interests. Nelson, 137 S.Ct. at 1255. The Supreme
Court held that all three factors weighed
"decisively" in favor of the defendants.
the first factor in the balancing test, the Court stated that
there was an "obvious interest" in a refund of
money paid as a consequence of convictions that were no
longer valid. Id. An overturned conviction restores
the presumption of innocence, the Court said, erasing any
State claim to funds paid in the form of costs, fees, or
restitution. Id. at 1255-56.
the second factor, the Court declared that the act's
requirement that defendants prove their innocence by clear
and convincing evidence created a risk of erroneous
deprivation of the defendants' interest in a refund of
their money. Id. at 1256. Once the presumption of
innocence is restored, "defendants should not be saddled
with any proof burden." Id.
the third factor, the Court stated that Colorado had
"zero claim of right" to money paid solely as a
consequence of subsequently ...