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SJC-12479
SJC-12480

                 COMMONWEALTH vs. JOSE MARTINEZ.
                COMMONWEALTH vs. STEPHANIE GREEN.



  Essex.    Middlesex.     September 7, 2018. - October 30, 2018.

    Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                            & Kafker, JJ.


Practice, Criminal, Restitution, Costs, Fees and costs,
     Probation. Restitution. Supreme Judicial Court,
     Superintendence of inferior courts.



     Complaint received and sworn to in the Haverhill Division
of the District Court Department on July 13, 2009.

     A 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.

     The Supreme Judicial Court granted an application for
direct appellate review.

      Complaints received and sworn to in the Framingham Division
of the District Court Department on August 10 and September 14,
2007.

     A 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.
                                                                  2


     The 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.
     Sarah M. Joss, Special Assistant Attorney General, for
Massachusetts Probation Service.
     Luke Ryan, Daniel N. Marx, & William W. Fick, for Stacy
Foster & others, amici curiae, submitted a brief.


    GANTS, C.J.    In 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
                                                                      3


repayment of probation fees, victim-witness assessments,

restitution, fines, forfeitures, and court costs after a

conviction has been invalidated.1

     Background.   1.    Jose Martinez.   In 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,2 a monthly fee of sixty-five dollars, as

required under G. L. c. 276, § 87A, for those placed on




     1 We acknowledge the amicus briefs submitted by Stacy
Foster, Jamie Kimball, Jonathan Riley, Nicole Westcott, and a
proposed class of all others similarly situated.

     2 The record does not reflect the basis for the order of
restitution. Generally, judges may order defendants to pay
restitution only to the victims of their crimes and only to
reimburse them for "economic losses caused by the defendant's
conduct and documented by the victim." Commonwealth v. Henry,
475 Mass. 117, 120 (2016), quoting Commonwealth v. McIntyre, 436
Mass. 829, 834 (2002). See also G. L. c. 258B, § 3 (o) (victims
have right "to request that restitution be an element of the
final disposition of a case").
                                                                   4


supervised probation,3 and a victim-witness assessment of ninety

dollars, as required under G. L. c. 258B, § 8, for those

convicted of a felony.4   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.

     On 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




     3 The monthly fee for those placed on supervised probation
is comprised of two components: a "probation supervision fee"
in the amount of sixty dollars per month and a "victim services
surcharge" in the amount of five dollars per month. See G. L.
c. 276, § 87A. For the sake of convenience, we treat these two
components as a single monthly probation fee of sixty-five
dollars.

     4 Martinez also was ordered to forfeit any monies found on
his person at the time of his arrest, but the record does not
reflect the amount of any such monies and Martinez has not
sought their refund.
                                                                    5


conviction of unlicensed operation of a motor vehicle was not

dismissed.

     After 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. 34.5   We allowed the

defendant's motion for direct appellate review.




     5   The reported questions are:

     (1) "Does the refund language in G. L. c. 258B, §8 apply to
     convictions vacated pursuant to the global Dookhan order?
     If the statute does apply, what is the showing a defendant
     must make to be entitled to a refund of a victim witness
     fee imposed pursuant to G. L. c. 258B, § 8, and, if a
     defendant makes such a showing, from what source should
     this payment be refunded?"

     (2) "If G. L. c. 258B, § 8 does not apply in these
     circumstances, is refund of a victim witness fee required
     pursuant to Nelson v. Colorado, 137 S. Ct. 1249 (2017)? If
     Nelson does require refunding victim witness fees, what is
     the showing a defendant must make to be entitled to a
     refund of such fees, and from what source should this
     payment be refunded?"
                                                                    6


    2.   Stephanie Green.   On 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




    (3) "If a refund is required either pursuant to the statute
    or pursuant to Nelson, can the court limit the refund to
    $40 by redistributing $50 of the victim witness fee to the
    surviving judgment on the misdemeanor offense of unlicensed
    operation in violation of G. L. c. 90, § 10? G. L.
    c. 258B, § 8 ($90 victim witness assessment for felonies;
    $50 victim witness assessment for misdemeanors);
    Commonwealth v. Zawatsky, 41 Mass. App. Ct. 392, 401 (1996)
    (remanding to discretion of trial judge whether $600 of
    victim witness assessment lost in connection with the
    vacated civil rights counts should be distributed among the
    surviving judgments of conviction)."

    (4) "Does Nelson . . . require refunding payments assessed
    pursuant to G. L. c. 276, § 87A? If so, what is the
    showing a defendant must make to be entitled to a refund of
    such payments, and from what source should this payment be
    refunded?"

    (5) "What verification is needed to determine the amount to
    be refunded?"

    (6) "Does Nelson . . . require refunding restitution? If
    so, what is the showing a defendant must make to be
    entitled to a refund of this payment, and from what source
    should restitution payments be refunded?"

    (7) "What verification is needed to determine the amount to
    be refunded?"
                                                                    7


a victim-witness assessment of fifty dollars.6   The judge at

sentencing also allowed the Commonwealth's motion for the

forfeiture of $1,411.63 seized from Green's home during the

search.

     That 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




     6 We note that the judge ordered Green to pay a victim-
witness assessment of fifty dollars on the count in the
complaint charging possession of a class B substance with intent
to distribute, in violation of G. L. c. 94C, § 32A (a), but a
different judge ordered Martinez to pay a victim-witness
assessment of ninety dollars on a count charging possession of a
class A substance with intent to distribute, in violation of G.
L. c. 94C, § 32 (a). Both are felonies within the jurisdiction
of the District Court, see G. L. c. 218, § 26, although a
defendant whose case is adjudicated in District Court may not be
sentenced to State prison. See G. L. c. 218, § 27. Under G. L.
c. 258B, § 8, where a defendant is convicted of a felony, a
judge "shall impose an assessment of no less than $90"; where a
defendant is convicted of a misdemeanor, a judge "shall impose
an assessment of $50." We do not address the differences in
these cases in the application of G. L. c. 258B, § 8.
                                                                    8


was sentenced to a term of thirty days in a house of correction,

to be served on weekends.

     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.7

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. 34.8   We transferred the case to this court on our own




     7 On December 3, 2008, the Commonwealth commenced a civil
action in Superior Court seeking forfeiture of the items seized
in the execution of the hotel room search warrant: $8,214 in
cash, three cellular telephones, and a laptop computer.
Judgment issued on July 22, 2009, ordering the forfeiture of
these items to the Commonwealth. Green has not sought the
return of these items.

     8 The judge was aware that questions had earlier been
reported in Martinez's case, and supplemented those questions
with reported questions addressing additional issues raised in
Green's case "as to the procedure to be followed for return of
punitive fines imposed and what, if any, obligation the
Commonwealth has to return money ordered forfeited." The
reported questions are:
                                                                   9


motion, and now consider the reported questions in conjunction

with those reported in Martinez's case.

    For the 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




    (1) "Who is the proper party to be named in a defendant's
    motion to return money assessments that are dependent on a
    conviction that was subsequently invalidated? Is
    designation of the proper party dependent on the type of
    monetary assessment sought to be refunded? In what [c]ourt
    should such a motion be filed, and what, if any, entities
    other than the District Attorney's office should receive
    notice of such a motion?"

    (2) "What is the showing a defendant must make to be
    entitled to a refund of punitive fines imposed upon a
    conviction that has subsequently been invalidated, and from
    what source should punitive fines be refunded?"

    (3) "Does Nelson . . . require refunding money that was
    ordered forfeited by the criminal court pursuant to G. L.
    c. 94C, § 47 (b), where the conviction in the related
    criminal proceeding is subsequently invalidated and no
    retrial will occur? If so, what is the showing a defendant
    must make to be entitled to a refund of such forfeited
    moneys, and from what source would such a refund be paid?"
                                                                   10


. . . 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?

    Discussion.    Before 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
                                                                     11


counts of their convictions were later invalidated.9    Nelson,

supra at 1258.

     The 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 1254.

     The 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


     9 One defendant's conviction was reversed on appeal for
trial error, and she was acquitted of all charges on retrial.
Nelson, 137 S. Ct. at 1253. The other defendant's conviction on
one count was reversed on appeal, and his conviction on the
other count was vacated on collateral review. Id. The State
chose not to appeal or to retry the case. Id.
                                                                     12


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.    Id.

      As to 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.

      As to 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.

      As to the third factor, the Court stated that Colorado had

"zero claim of right" to money paid solely as a consequence of

subsequently invalidated convictions.   Id. at 1257.

      Under the Court's holding in Nelson, id. at 1252, the State

is obligated under the due process clause of the Fourteenth

Amendment to refund monies where three elements are satisfied:
                                                                    13


(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."   We understand that this third element is

met where, for example, the conviction was vacated, whether by

an appellate court or a trial court, and the indictment or count

was subsequently dismissed with prejudice or nol prossed by the

prosecutor, or was retried and resulted in an acquittal.      In

addition, "[t]o 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."     Id. at

1258.   Because the refund obligation is constitutional, it

applies even where there is no statutory authority for the

refund of fines, fees, court costs, or restitution to a

defendant whose conviction was invalidated.   Cf. Commonwealth v.

Martin, 476 Mass. 72, 79 (2016).   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.

Although the Supreme Court speaks only of a "conviction," we

understand a "conviction" in light of this due process principle

to include continuances without a finding and juvenile
                                                                    14


adjudications.   Cf. Committee for Pub. Counsel Servs. v.

Attorney Gen., 480 Mass. 700, 734-735 (2018) (defining class of

"Farak defendants" to include defendants who pleaded guilty to

drug charge, admitted to sufficient facts to warrant finding of

guilty on drug charge, or were found guilty of drug charge at

trial); Bridgeman II, 476 Mass. at 306 (providing comparable

definition for "relevant Dookhan defendants").

    We now address each of the reformulated reported questions.

    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?   a.    Probation fees.

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, 137 S. Ct. at 1257, and must be returned in full once

the conviction is invalidated and it is determined that the case

will not or cannot be retried.   Id. at 1252.

    Where a judge, however, sentences a defendant to a

concurrent term of probation on multiple convictions, the

probation fees must be refunded to the defendant only where they

were paid solely because of an invalidated conviction.      Where

the defendant was sentenced to a concurrent term of probation on
                                                                   15


a conviction that remains valid, due process does not require

that the probation fees paid during that concurrent term be

refunded, because the obligation to pay monthly probation fees

associated with a valid conviction is unaffected by the

subsequent invalidation of a different conviction.   For example,

if a defendant were convicted of a drug count and a firearms

count and sentenced to two years of supervised probation on the

drug count and one year of supervised probation on the firearms

count, to be served concurrently, subsequent invalidation of the

drug conviction would have no impact on the defendant's

obligation to pay probation fees in the first year on the

firearms conviction.   Because the defendant is entitled to a

refund of only those fees paid as a direct consequence of the

invalidated drug conviction, he or she would receive a refund of

probation fees paid during the second but not the first year of

probation.   Due process requires the refund of fees paid for an

invalidated conviction, but it does not require that a defendant

be placed in a better position because of an invalidated

conviction than the defendant would have been in had he or she

been sentenced on only the surviving convictions.

    Here, all of the counts for which both defendants were

sentenced to probation have been invalidated.   As a result, all

paid probation fees must be refunded because they were paid

solely as a consequence of those invalidated convictions.
                                                                    16


       b.   Victim-witness assessments.   As with probation fees,

where a defendant is sentenced on a single conviction, the

victim-witness assessment ordered under G. L. c. 258B, § 8, is

exacted from the defendant solely as a consequence of that

conviction.    Any amount paid must therefore be returned where

the conviction is invalidated and it is determined that the case

will not or cannot be retried.     But where a defendant is

sentenced on multiple indictments or counts of a complaint, due

process does not require the refund of a victim-witness

assessment imposed on an invalidated conviction where a

surviving conviction also would have required the imposition of

a victim-witness assessment under G. L. c. 258B, § 8.

       As applied here, all of Green's convictions have been

invalidated, so she is entitled to a refund of the victim-

witness assessments paid as a consequence of those convictions.

       In contrast, Martinez's drug convictions were invalidated,

but his conviction of unlicensed operation of a motor vehicle

was not.    Had Martinez been convicted of only the latter, a

misdemeanor, the judge would have been required to impose a

victim-witness assessment of fifty dollars.      See G. L. c. 258B,

§ 8.   Presumably, this assessment was not ordered at sentencing

only because the defendant had already been ordered to pay a

victim-witness assessment of ninety dollars on one of his felony

drug convictions.      Martinez is therefore entitled to a refund
                                                                   17


in the amount of forty dollars, the difference between the

amount he paid (ninety dollars) and the amount he would have

paid if not for the invalidated felony convictions (fifty

dollars).    A full refund of the ninety dollars would place the

defendant in a better position than he would have been in had he

originally been convicted of only the surviving count.

    c.      Restitution.   Due process requires the refund of

restitution paid as a consequence of an invalidated conviction,

see Nelson, 137 S. Ct. at 1252, but the refund of restitution

poses two complex issues that generally do not arise with the

refund of fees.

    First, fees are generally paid solely as a consequence of a

conviction and present no opportunity to obtain a civil judgment

for their award.     But restitution may be ordered as a special

condition of probation in a criminal sentence, see Commonwealth

v. Henry, 475 Mass. 117, 120 (2016), or obtained by the victim

through an execution on a separate civil judgment, see id. at

122 n.5; Mass. R. Civ. P. 69, 365 Mass. 836 (1974).

    The Supreme Court noted in Nelson, 137 S. Ct. at 1253 n.3,

that "[u]nder Colorado law, a restitution order tied to a

criminal conviction is rendered as a separate civil judgment,"

and that, "[i]f the conviction is reversed, any restitution

order dependent on that conviction is simultaneously vacated."

See People v. Scearce, 87 P.3d 228, 234-235 (Colo. App. 2003).
                                                                   18


In contrast, under Massachusetts law, there is no statutory

authority that permits a restitution order issued by a judge in

a criminal case to be enforced through a separate civil

judgment; a victim seeking a civil judgment against the

defendant must initiate a separate civil action for restitution

damages.   See Henry, 475 Mass. at 121, 123 (restitution may be

ordered in criminal case only as condition of probation, and

probation is not "a civil program or sanction" [citation

omitted]); id. at 122 n.5 (victims may collect on civil

judgments for restitution through civil executions).    See also

G. L. c.   258B, § 3 (u).   And, once a victim obtains such a

civil judgment, the invalidation of the criminal conviction does

not automatically result in the civil judgment being vacated.

Instead, a defendant seeking to vacate a civil judgment in light

of an invalidated criminal conviction must move separately for

relief from that judgment under Mass. R. Civ. P. 60 (b), 365

Mass. 828 (1974), which allows for relief in circumstances where

"a prior judgment upon which [an order] is based has been

reversed or otherwise vacated."

    Where a defendant moves for such relief, the motion judge

must determine whether the civil judgment can stand despite the

invalidation of the criminal conviction.    In contrast with a

criminal conviction, which requires proof beyond a reasonable
                                                                    19


doubt,10 a civil judgment requires proof only by a preponderance

of the evidence, see Baker v. Parsons, 434 Mass. 543, 554 n.18

(2001), and that proof may be obtained through evidence separate

and apart from the fact of conviction.    In fact, under

Massachusetts law, a civil judgment may be obtained through

collateral estoppel (also known as issue preclusion) based on a

criminal conviction only where the defendant has been found

guilty at trial; admissions made by a defendant during a guilty

plea colloquy do not trigger collateral estoppel, although they

may be admitted in evidence in the civil case.    Aetna Cas. &

Sur. Co. v. Niziolek, 395 Mass. 737, 742, 748-750 (1985).     See

also Metropolitan Prop. & Cas. Ins. Co. v. Morrison, 460 Mass.

352, 364 (2011) (where "a criminal conviction follows a guilty

plea, the plea may be offered as evidence of a defendant's guilt

in subsequent civil litigation but it is not given preclusive

effect.").

     In Nelson, 137 S. Ct. at 1252, 1253 n.3, the Supreme Court

held that the defendants were entitled to a refund of

restitution that had been the subject of civil judgments

associated with criminal convictions.    Under Colorado law, the

Court said, such civil judgments are "simultaneously vacated"


     10A criminal conviction requires proof beyond a reasonable
doubt, but restitution may be awarded as a condition of
probation where the victim's economic loss is proved by a
preponderance of the evidence. McIntyre, 436 Mass. at 834.
                                                                    20


when the underlying convictions are reversed.    Id. at 1253 n.3.

Because Martinez's restitution order was not tied to a civil

judgment, we need not address here whether due process requires

the refund of restitution related to an invalidated conviction

where there is a surviving civil judgment.    Moreover, the issue

has been rendered moot by the refund of his restitution payment.

    Second, in contrast with fees, which in Massachusetts are

paid to the Commonwealth, see G. L. c. 29A, § 3, restitution is

paid to the victims of crimes, who are often individuals or

private entities.    The Supreme Court in Nelson, 137 S. Ct. at

1252, concluded that the State is obliged to refund restitution

exacted from the defendant as a consequence of his or her

invalidated conviction.    But the Court also appeared to assume

that the restitution was paid to the State, and not to a private

victim.    See id. at 1255 (defendants "have an obvious interest

in regaining the money they paid to Colorado"); id. at 1256

("Colorado may not retain funds taken from [the defendants]

solely because of their now-invalidated convictions"); id. at

1257 (defendants "seek restoration of funds they paid to the

State").   This assumption might have been unwarranted because in

Colorado, where "the obligation to pay restitution is included

in the defendant's sentence, restitution results in a final

civil judgment against the defendant in favor of the State and

the victim."   Id. at 1262 (Alito, J., concurring in the
                                                                     21


judgment), citing Colo. Rev. Stat. § 18-1.3-603(4)(a)(I) (2016).

In fact, the restitution paid by both Nelson defendants was used

to pay for mental health therapy and counselling for the victim

children.   See Madden, 364 P.3d at 867-68 (defendant was ordered

to pay $910 in restitution to victim and actually paid $757.75,

which went to counselling services); Nelson, 362 P.3d at 1071 &

n.1 (defendant was ordered to pay $7,845 to victims as

restitution and actually paid $414.60).

    Because the restitution here was paid to the Haverhill

police department and has been repaid, we need not decide

whether Nelson requires the Commonwealth to refund restitution

paid by a defendant as a consequence of an invalidated

conviction where the restitution was paid not to the

Commonwealth, but to a private victim.     We certainly expect the

Commonwealth and any other governmental entity to refund

restitution paid to it as a consequence of a conviction where

the conviction is later invalidated.     But 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.     We also

recognize the challenges involved if a court were to order

private victims to repay restitution that had perhaps been

received by them years earlier.   A victim is not a party to a

criminal proceeding and, if faced with the prospect of having to
                                                                   22


repay restitution, might wish to initiate a civil proceeding

against the defendant to obtain a civil judgment for that

restitution amount.    Does a judge postpone the order of refund

to give the victim a reasonable opportunity to pursue that

remedy?   And what happens if the victim no longer has the

ability to repay the restitution amount, or is financially able

but unwilling to repay?    We need not address these issues

because they are not presented in these cases, but it may not be

long before we confront a case that demands their resolution.

    d.    Fines.   Green seeks a refund of the $5,000 in fines and

surfines paid as part of her sentence on two invalidated drug

convictions.   Although the refund of fines was not at issue in

Nelson, Green claims that she is entitled to a refund under the

due process principles established in Nelson because her drug

convictions have been invalidated and the fines were exacted

from her upon and as a consequence of those convictions.      We

agree that there is no reason to exclude fines and surfines from

the category of payments that must be refunded to a defendant as

a matter of due process where the defendant was ordered to pay

those fines and surfines solely as a consequence of a

subsequently invalidated conviction.    See Commonwealth v.

Accime, 476 Mass. 469, 477 & n.13 (2017) (where conviction is

vacated, "defendant may be entitled to a refund of any fine he
                                                                   23


may have paid").   Green is therefore entitled to a refund of

fines and surfines totaling $5,000.

    e.   Forfeiture.     Green also seeks a refund of $1,411.63,

the amount of money seized from her home during the execution of

the search warrant and ordered forfeited at her plea hearing.

Although forfeiture was not at issue in Nelson and was not

mentioned in the opinion, Green claims that she is entitled to a

refund of the forfeited funds under the due process principles

established in Nelson.

    We conclude that Green is not entitled to return of the

forfeited funds because forfeiture, even where ordered at a plea

hearing, "is outside the scope of the criminal matter and

constitutes a civil proceeding."    Commonwealth v. Brown, 426

Mass. 475, 480 (1998).    The forfeiture of property is authorized

by G. L. c. 94C, § 47, which sets forth two methods by which

forfeiture proceedings may be initiated by the Commonwealth:

either by petition in the nature of a proceeding in rem filed in

the Superior Court under § 47 (d), or by motion filed in a

related criminal proceeding under § 47 (b).    See Brown, supra.

Regardless of which type of proceeding is chosen by the

Commonwealth, the burden of proof remains the same:    "the

[C]ommonwealth shall have the burden of proving to the court the

existence of probable cause to institute the [forfeiture]

action, and [the] claimant shall then have the burden of proving
                                                                   24


that the property is not forfeitable."    Id. at 477 & n.3,

quoting G. L. c. 94C, § 47 (d).

     Here, the Commonwealth sought the forfeiture of the

$1,411.63 seized from Green's home under § 47 (b) by a motion in

the criminal proceeding.11    Under such circumstances, probable

cause for the forfeiture may be shown from the same facts the

prosecutor presented as the factual basis for the defendant's

guilty plea.   See id. at 477-478.   The Commonwealth satisfies

its initial burden, and thus shifts the burden of proof to the

defendant, by showing that "the Commonwealth had reliable

information in its possession that established probable cause"

to believe that "the property at issue derived from illegal

narcotics or facilitated a violation of the controlled

substances laws."   Commonwealth v. One 2004 Audi Sedan Auto.,

456 Mass. 34, 38-39 (2010).    The Commonwealth may make this

showing of nexus even where it lacks a sufficient factual basis

to support a finding of guilt, or where a defendant is found not

guilty at trial, or where the Commonwealth later dismisses or

nol prosses the criminal complaint or indictment.    See

Commonwealth v. Fourteen Thousand Two Hundred Dollars, 421 Mass.




     11As noted earlier, see note 7, supra, the Commonwealth
obtained the forfeiture of the monies, cellular telephones, and
laptop computer seized from Green's hotel room through a
proceeding in rem filed in the Superior Court under § 47 (d),
and Green does not seek the refund of that forfeited property.
                                                                    25


1, 9 (1995); Commonwealth v. One 1986 Volkswagen GTI Auto., 417

Mass. 369, 370 n.2 (1994).

    Green contends that the forfeiture order, for all practical

purposes, was a consequence of the invalidated drug convictions

and should therefore be invalidated along with the convictions.

But the motion for forfeiture of Green's money under § 47 (b),

as a matter of law, initiated a separate civil proceeding that

was adjudicated at the same time as the criminal proceeding.

See Brown, 426 Mass. at 480.     The finding of probable cause of

nexus that sufficed to order forfeiture in the civil proceeding

did not depend on the finding in the criminal proceeding of

sufficient evidence to warrant a finding of guilt on the plea.

See Fourteen Thousand Two Hundred Dollars, 421 Mass. at 9.      The

forfeiture judgment therefore was not solely a consequence of

the invalidated drug convictions, and need not be vacated

because of their invalidation.    To be sure, the reasons for

invalidating a conviction potentially may warrant relief from

the civil judgment of forfeiture, but that issue must be

separately litigated in the civil forfeiture proceeding through

a motion for relief from judgment under Mass. R. Civ. P. 60 (b).

A defendant is not entitled to such relief solely because the

criminal convictions that were related to the forfeiture were

invalidated.   Green, therefore, is not entitled as a matter of
                                                                    26


due process to a refund of the $1,411.63 taken in forfeiture

solely because her drug convictions were invalidated.

    f.    Court costs.   Although court costs were not imposed in

these cases, we address the issue because their refund is

specifically required under Nelson, 137 S. Ct. at 1252.     In

Massachusetts, "[c]osts shall not be imposed by a justice as a

penalty for a crime."    G. L. c. 280, § 6.12   Because Nelson, 137

S. Ct. at 1252, requires the refund of only those costs exacted

from the defendant "upon, and as a consequence of, the

conviction," and because § 6 prohibits court costs from being

ordered as a consequence of conviction, the due process

obligation set forth in the Nelson decision should not affect

court costs assessed in Massachusetts.    The due process

obligation to refund would apply to court costs only where, in

apparent violation of § 6, a defendant was ordered to pay court

costs as a consequence of a conviction that was later

invalidated.




    12   General Laws c. 280, § 6, also provides:

    "A justice may, as a condition of the dismissal or placing
    on file of a complaint or indictment, or as a term of
    probation, order the defendant to pay the reasonable and
    actual expenses of the prosecution. A justice may impose
    reasonable costs as a result of a default by a criminal
    defendant that was intentional or negligent and without
    good cause."
                                                                    27


      We recognize that the exactions discussed above are not the

only ones that can issue as the result of a conviction.      See,

e.g., G. L. c. 90, § 24 (assessments and fees in cases of

operating motor vehicle while under influence); G. L. c. 258B,

§ 8 (domestic violence prevention assessments); G. L. c. 280,

§ 6B (drug analysis fees).    Because questions regarding other

fines and fees are not presented in these two cases and were not

at issue in Nelson, we do not address them here.

      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?    Whether a

defendant has been ordered to pay fees, court costs,

restitution, or fines as a consequence of an invalidated

conviction is a question whose answer should be found in the

case docket.    But it is often difficult and potentially time-

consuming to determine whether those exactions have actually

been paid by the defendant -- that information might not be in

the docket, especially in older cases, and might require review

of the case file or the probation file.    It might be similarly

challenging to determine whether a defendant with an invalidated

conviction has surviving convictions that require the court to

reassign money paid to those convictions rather than to refund

it.   Therefore, the allocation of the burdens of production and

proof matters a great deal in determining whether defendants
                                                                    28


whose convictions have been invalidated will be able to

successfully establish their entitlement to a refund of amounts

paid.

    The Supreme Court in Nelson, 137 S. Ct. at 1258, held that

"[t]o 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."    Although

the Court clearly stated that requiring a defendant to prove his

or her innocence to obtain a refund violates due process, id. at

1256, the Court did not provide any further guidance as to what

was meant by "no more than minimal procedures."   Id. at 1258.

    We now outline the procedure to be followed in cases where

the defendant applies for a refund of monies paid as a direct

consequence of a conviction that has been invalidated.     We set

forth this procedural guidance under the due process protections

implicit in art. 12 of the Massachusetts Declaration of Rights.

We are confident that the procedural guidance we provide

satisfies the due process clause of the Fourteenth Amendment,

but we rely on art. 12 to ensure that this process is followed

in Massachusetts courts even if the Supreme Court were to

declare that procedures that place greater demands or

obligations on defendants seeking refunds are acceptable under

the Fourteenth Amendment.
                                                                  29


     First, a defendant seeking a refund must file a motion for

refund in the court where he or she was convicted and mail to or

otherwise serve this motion on the office that prosecuted the

conviction, that is, the office of the Attorney General or the

district attorney's office.   The motion may be filed by the

defendant or by defense counsel.   If the defendant is filing the

motion pro se but was represented by an attorney in the

underlying criminal case, a copy of the motion should be sent to

the defense attorney.   The defendant must swear or attest that

the information provided in support of the motion is true, based

on personal knowledge or information and belief.   This may be

accomplished by submitting a verified motion, that is, a motion

where the information contained within is sworn or attested, or

by submitting with the motion an affidavit in the form of a

sworn or attested statement, letter, or application.   This

verified motion or accompanying affidavit must clearly state (1)

that the defendant's conviction is no longer valid and is not

subject to retrial; (2) that the requested refund consists of

fines, fees, costs, or restitution assessed solely as a result

of the invalidated conviction; (3) the amount of the requested

refund; and (4) that the defendant has paid the requested

amount.13


     13We urge the Trial Court to prepare a simple, plain
language "Motion for Refund after Invalidated Conviction" form
                                                                    30


    The sworn or attested application alone is sufficient to

satisfy the defendant's burden of production.     But, if possible,

the defendant should identify any docket entries reflecting his

or her payment of monies, and supplement his or her application

with any other existing evidence (e.g., receipts or payment

documents) that the defendant reasonably can locate that tend to

support the refund claim.

    Once the defendant has met his or her burden of production,

the burden of proof shifts to the Commonwealth.    At this point,

the Commonwealth may rebut the defendant's claims by producing

evidence that the defendant is not entitled to a refund or is

entitled to a refund in an amount that differs from what he or

she requested.   The Commonwealth, like the defendant, may

present evidence in the form of docket entries, receipts, and

anything else relevant to determine whether the defendant

actually paid the amount claimed.

    We place the burden of proof on the Commonwealth rather

than the defendant because doing so comports most closely with

the spirit of the Supreme Court's admonition to impose nothing

"more than minimal procedures on the refund of exactions"

arising from invalidated convictions.   Nelson, 137 S. Ct. at




that would simplify the process of applying for a refund by
defendants who may not have the benefit of counsel when they
file such an application.
                                                                    31


1258.   The defendants who file such motions will often be

representing themselves, at least initially, and their

invalidated convictions may be many years old, as with Martinez

and Green.     Although criminal files are public records and

defendants may gain access to them, they are more easily

accessible to prosecutors who are in the court house of

conviction every day.     Prosecutors also will generally be better

able than defendants to understand docket notations that,

especially in older cases, often are handwritten and too often

are something less than a model of clarity.     Moreover, records

of payment may sometimes be found in places other than the court

file, such as in probation files or clerk's office files.

Prosecutors are better positioned than defendants to know where

to find these records and to obtain the cooperation needed to

search them.

    Where the refund or its amount is disputed, the court shall

consider the evidence offered by both parties and determine

whether the Commonwealth has met its burden to show, by a

preponderance of the evidence, that the defendant is not

entitled to the refund amount requested in his or her motion.

The court, in its discretion, may conduct an evidentiary hearing

to resolve such disputes.    If the court finds that a refund in

any amount is proper, it shall issue a refund order pursuant to

the procedure described infra.
                                                                   32


     3.   Where a judge determines that a defendant is entitled

to a refund, how will payment of the refund be accomplished?

Under G. L. c. 258B, § 8, where a conviction or delinquency

adjudication is "overturned on appeal," the victim-witness

assessment paid by the defendant or juvenile "shall be refunded

by the court" by deducting the funds "from the assessments

transmitted to the state treasurer."   Green contends that this

protocol should govern not only the refund of victim-witness

assessments in cases where the conviction or adjudication is

overturned on appeal, but the refund of all fines, fees, and

court costs required as a matter of due process.   This protocol

is certainly consistent with the Supreme Court's holding in

Nelson, but there are practical problems with adopting it beyond

the statutory mandate.

     Fines, fees, victim-witness assessments, and court costs

are collected by the trial court or the probation service but

are not retained by them.   All such funds are paid to the

Commonwealth and, with some exceptions,14 are deposited into the

general fund.   See G. L. c. 29A, § 3 ("All fees, fines,


     14See, e.g., G. L. c. 258B, § 8 (domestic violence
prevention assessment deposited into fund for domestic and
sexual violence prevention and victim assistance); G. L. c. 90,
§ 24 (1) (a) (1) (operating motor vehicle while under influence
victim assessment given in part to trust fund for victims of
drunk driving; operating motor vehicle while under influence
head injury assessment deposited in part into trust fund for
head injury treatment services).
                                                                   33


forfeitures, penalties and any other receipts or income of any

kind paid to or received by any of the courts . . . shall be

paid into the general fund of the [C]ommonwealth except as

otherwise specifically provided by law.").   General Laws

c. 258B, § 8, provides that all victim-witness "assessments

. . . shall be transmitted monthly to the state treasurer."

However, the probation service reports that this transfer of

funds now happens daily.   Therefore, the ability of the courts

to refund fines, fees, and court costs by deducting funds "from

the assessments transmitted to the state treasurer" is quite

limited.

    But the basic elements of this protocol still apply.     It

continues to be the responsibility of the courts to order the

refund of fines, fees, and court costs where due process so

requires.   And the source of payment for such refunds continues

to be the Commonwealth, generally its general fund.     We will not

attempt to specify the means by which such payment is

accomplished; it suffices to say that the court must order the

refund and the Commonwealth must timely comply with that order

by providing the defendant or juvenile with the money to which

he or she is entitled.

    The refund of restitution, however, requires a different

protocol because restitution payments are made to the victim of

the defendant's crimes, not to the Commonwealth.   In contrast
                                                                   34


with refunds of fines, fees, victim-witness assessments, and

court costs, where the Commonwealth is returning funds to which

it is no longer entitled, the Commonwealth was never entitled to

payments issued as restitution to private victims.   Where the

Commonwealth, or any other governmental entity, was itself the

victim of a crime and received restitution, a judge may order

the Commonwealth or the governmental entity to refund the amount

paid, and we expect that order to be honored.   But we do not

address how a court may accomplish the refund of restitution

paid to a private person or entity.   We will await an appeal of

a case where restitution was paid to a private victim as a

consequence of an invalidated conviction to decide that

difficult issue.

    4.   The exercise of our superintendence authority.     The

recognition in Nelson of a constitutional due process obligation

to refund fees, court costs, and restitution paid as a

consequence of an invalidated conviction comes at a challenging

time for the Commonwealth.   Drug convictions in more than 21,000

cases have been invalidated as a result of the misconduct of

Annie Dookhan at the Hinton laboratory, and drug convictions in

thousands of other cases have been invalidated as a result of

the misconduct of Sonja Farak at the Amherst laboratory, with

even more to be invalidated as a result of our opinion in
                                                                  35


Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass.

700, 729, 735 (2018).

    The procedure we establish here for the refund of fines and

fees in individual cases is practicable in ordinary times, but

we recognize that it would quickly prove impracticable if a

sizeable percentage of the defendants whose convictions have

been invalidated because of Dookhan and Farak's misconduct were

to seek the refunds they are due.   If that were to happen, the

amount of time and effort required from judges, clerks,

probation officers, prosecutors, and defense counsel to

adjudicate each individual defendant's entitlement to a refund,

and the amount of such a refund, would pose so substantial a

collective burden that it would threaten the administration of

criminal justice in our courts.

    In Bridgeman II, 476 Mass. at 300, we exercised our

superintendence authority under G. L. c. 211, § 3, to fashion a

remedy for the resolution of thousands of drug cases affected by

Dookhan's misconduct through a "new protocol for case-by-case

adjudication" that occurred in three phases and was implemented

by the single justice in the form of a declaratory judgment.      In

Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. at

705, 735, we fashioned a more global remedy under our

superintendence authority to resolve thousands of drug cases

affected by Farak's misconduct and by the subsequent
                                                                    36


prosecutorial misconduct of two attorneys in the office of the

Attorney General:     we vacated the drug convictions of the so-

called Farak defendants and dismissed the drug charges against

them with prejudice.

    We have given careful consideration to whether we need to

exercise our superintendence authority to craft another global

remedy addressing the many thousands of "Nelson" refund motions

that may be brought by the so-called Dookhan and Farak

defendants.   The parties at oral argument, however, have asked

us to refrain from doing so pending the anticipated settlement

of a putative class action brought in the United States District

Court for the District of Massachusetts that seeks, among other

things, the refund of fines, fees, court costs, and restitution

paid as a result of invalidated drug convictions by the putative

class of Dookhan and Farak defendants.    Foster vs. Commonwealth

of Mass., U.S. Dist. Ct., Civ. No. 18-10354-IT (D. Mass., filed

Feb. 23, 2018, amended Sept. 6, 2018).

    We will defer, for now, to allow time for a global remedy

to be crafted and for a settlement to be reached by the parties

to that litigation.    But we might not be able to defer for long

because we recognize the possibility that the issuance of this

opinion may unleash a flood of "Nelson" motions for the refund

of monies paid by Dookhan and Farak defendants.    Such an influx

of motions might so burden our criminal courts as to imperil the
                                                                   37


"proper and efficient administration" of justice.   See G. L.

c. 211, § 3.   We therefore direct the Attorney General and the

Committee for Public Counsel Services, no later than six months

after the issuance of the opinion in this case, to report in

writing to the single justice responsible for the implementation

of the protocols established in Bridgeman II and Committee for

Pub. Counsel Servs. v. Attorney Gen. regarding the status of the

putative class action litigation.   Nothing bars this court from

exercising our superintendence authority before that date if

deemed necessary to preserve the fair administration of justice.

    Conclusion.   We remand the cases to the reporting courts

for proceedings consistent with this opinion.

                                    So ordered.
