NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12399

              COMMONWEALTH   vs.   MARIEZEL VALLEJO.


                         July 29, 2018.


Restitution. Practice, Criminal, Restitution, Probation,
     Findings by judge.


     The 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. 1


     1 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. 723, 739 (2014) (to be
compensable for purposes of restitution, economic losses must be
                                                                   2



     A judge 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").

     In this 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

directly tied to facts surrounding crime and causally related to
them).
                                                                   3


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.

     We 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.

                                   So ordered.


     Rebecca Kiley, Committee for Public Counsel Services, for
the defendant.
     John P. Zanini, Assistant District Attorney, for the
Commonwealth.
     Oren Nimni, Jason D. Frank, A. Lauren Carpenter, & Michelle
Andrighetto, for Committee for Civil Rights and Economic Justice
& others, amici curiae, submitted a brief.
