Rebecca A. Jacobstein, Committee for Public Counsel Services,
for the defendant.
L. Sheppard-Brick, Assistant District Attorney, for the
2010, Jermaine Watt pleaded guilty to two counts of
distribution of cocaine. He was sentenced to concurrent State
prison terms of from three to five years. In addition, he
paid a drug analysis fee of $150, which was imposed pursuant
to G. L. c. 280, § 6B. He filed a motion for a new
trial, seeking to withdraw his guilty plea due to the
misconduct of Sonja Farak, a chemist at the Department of
Public Health's State Laboratory Institute in Amherst who
analyzed the substances seized in his case. See generally
Committee for Public Counsel Servs. v.
Attorney Gen., 480 Mass. 700 (2018). That motion was
initially denied, but ultimately, after the defendant was
released at the end of his sentence, the indictments were
dismissed with prejudice on the Commonwealth's motion.
The defendant thereafter filed a motion seeking a refund of
fees associated with the vacated convictions, namely, the
drug analysis fee and certain fees incurred on the inmate
account he was obligated to maintain while he was
incarcerated. See G. L. c. 124, § 1 (u); 103 Code Mass.
Regs. § 405.06 (2017). A judge in the Superior Court
denied the motion, and the defendant appeals. We allowed the
Commonwealth's application for direct appellate review.
Commonwealth concedes on appeal that the drug analysis fee
should be refunded under the reasoning of our decision in
Commonwealth v. Martinez, 480
Mass. 777 (2018), a case we decided after the judge denied
the defendant's motion. That is an appropriate
concession, and, after an independent review of the issue,
see Commonwealth v. Poirer, 458
Mass. 1014, 1015 (2010), and cases cited, we agree that the
same due process principles that underlie our decision in
Martinez also require a refund of the drug analysis
fee. The sole remaining issue before us, therefore, is
whether the account fees should be refunded, either by
statute or under the due process principles set forth in
Martinez, supra, and Nelson
v. Colorado, 137 S.Ct. 1249
(2017). As we shall explain, neither the statute
nor due process requires that those fees be refunded.
ruling on the defendant's motion, the judge did not make
findings of fact. We glean the following facts from the
record before us and from the parties' representations.
While he was incarcerated, the defendant was required to have
an inmate account for retention of his funds. See 103 Code
Mass. Regs. § 405.06(1). Pursuant to G. L. c. 124,
§ 1 (u), and 103 Code Mass. Regs. § 405.06(2), a
monthly maintenance and administration fee of one dollar was
assessed on his account in each month in which certain types
of transactions occurred. The Commonwealth represents that
such fees are charged when correction personnel are needed to
process a transaction, such as when a visitor brings money to
be deposited in an inmate's account, but not when a
transaction occurs without the need for such processing, such
as when an inmate earns money from prison employment or when
an inmate's family member makes a direct deposit using
the secure deposit system. The defendant does not generally
dispute this, but represents that on two occasions, a fee was
incurred when he was transferred from the house of correction
to the State prison, a circumstance beyond his control.
According to the defendant, the fees totaled thirty-two
dollars over the term of his incarceration.
defendant argues that the account fees must be refunded under
G. L. c. 278, § 14, which provides:
"No prisoner or person under recognizance, acquitted by
verdict or discharged because no indictment has been found
against him, or for want of prosecution, shall be liable for
any costs or fees or for any charge for subsistence while he
was in custody."
terms, the statute applies to three categories of people:
those who are "acquitted by verdict," those who are
"discharged because no indictment has been found,"
and those who are "discharged . . . for want of
prosecution." Each category consists of individuals in
pretrial status who are eventually released without having
been found guilty of any offense. The statute does not apply
to those who, like the defendant here, were convicted of one
or more offenses. We specifically reject the defendant's
assertion that he is in the third category ("discharged
. . . for want of prosecution") merely because the
indictments were ultimately dismissed on the
Commonwealth's motion. The Commonwealth did in fact
prosecute him, he pleaded guilty, and the account fees were
incurred while he served his term. As the defendant was not
in pretrial status when the fees were incurred, G. L. c. 278,
§ 14, does not apply to him.
defendant next argues that the account fees must be refunded
to him under the due process principles set forth in the
Martinez and Nelson decisions. As we
explained in Martinez, "the State is obligated
under the due process clause of the Fourteenth Amendment to
refund monies where three elements are satisfied: (1) the
monies were 'exacted from the defendant' upon
conviction and as a consequence of the conviction; (2) the
amounts 'exacted' were actually paid by the
defendant; and (3) the conviction has been 'invalidated
by a reviewing court and no retrial will occur.'"
Martinez, 480 Mass. at 784-785, quoting
Nelson, 137 S.Ct. at 1252. At issue here is the
first element, that is, whether the maintenance and
administration fees for his prison account were
"'exacted from the defendant' upon conviction
and as a consequence of the conviction." "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" (emphasis added). Martinez,
supra at 785. We thus determined in
Martinez that probation fees ordered under G. L. c.
276, § 87A, victim-witness assessments ordered under G.
L. c. 258B, § 8, and fines and surfines paid as part of
a sentence must be refunded to the extent they were paid
solely as a consequence of invalidated convictions.
Martinez, supra at 785-787, 790. We also
recognized the ruling of the United States Supreme Court in
Nelson that "[d]ue process requires the refund
of restitution paid as a consequence of an invalidated
conviction," Martinez, supra at 787,
citing Nelson, supra at 1252, while
observing that differences between the Colorado law at issue
in Nelson and Massachusetts law, as well as the
difficulties involved in obtaining a refund from the victim
to whom restitution was paid, would raise complex issues.
Martinez, supra at 787-790. Not all fees
imposed on defendants must be refunded, however. For example,
we rejected a defendant's claim for a refund of money
civilly forfeited pursuant to G. L. c. 94C, § 47, at a
plea hearing, as forfeiture was a separate civil proceeding
outside the scope of the criminal matter, and we stated that
court costs were ordinarily not refundable, as G. L. c. 280,
§ 6, prohibits their imposition as a penalty for a
crime. Martinez, supra at 790-792.
the principles set forth in Martinez and
Nelson, the defendant is not entitled to a refund of
the account maintenance and administration fees. Unlike
probation fees, victim-witness assessments, restitution, and
fines paid as penalties, the fees at issue here were not
ordered solely as a consequence of the defendant's
convictions, but withdrawn from his inmate account in
connection with certain financial transactions. They cannot
fairly be said to be part of the penalty imposed by the court
as a punishment for the offenses of which the defendant was
convicted. Moreover, like monies that are subject to civil
forfeiture, the fees were imposed by a process outside the
scope of the criminal proceeding. We conclude that these fees
were not exacted from the defendant upon conviction and
solely as a consequence of his convictions. The defendant is
therefore not entitled to have them refunded.