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SJC-12689

               COMMONWEALTH   vs.   JERMAINE WATT.



                        August 20, 2019.


Practice, Criminal, Costs, Fees and costs, Restitution.
     Restitution. Imprisonment, Imposition of fees.


     In 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).1 A judge in the Superior

    1  The statute, G. L. c. 124, § 1 (u), authorizes the
commissioner of correction to "charge each inmate reasonable
fees for the maintenance and administration of inmate accounts
and [to] deduct such fees from each inmate's accounts." The
regulation, 103 Code Mass. Regs. § 405.06, provides in relevant
part:
                                                                   2


Court denied the motion, and the defendant appeals. We allowed
the Commonwealth's application for direct appellate review.

     The 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.2 That is


     "(1) All inmate funds in the possession of the Department
     of Correction shall be maintained on the Department of
     Correction's [Inmate Management System] Trust Fund
     Accounting Module. All inmate savings bonds previously
     purchased shall stay in the custody of the institution in
     which the inmate is incarcerated.

     "(2) Pursuant to [G. L. c. 124, § 1 (u)], inmates shall be
     assessed reasonable fees for the maintenance and
     administration of inmate accounts. The Commissioner shall
     establish the amount of the fee assessed. Fees shall be
     deducted from inmate personal accounts that meet the
     criteria established in 103 [Code Mass. Regs. §]
     405.06(2)(a) and (b).

     "(a) A fee shall be assessed if an account has had activity
     during the month to be charged. Activity shall be defined
     as execution of at least one of the following transactions,
     ML income, VI income, IT income, or EX external
     disbursement.

     "(b) A fee shall be assessed for each check for which a
     stop payment request is executed. . . ."

     As far as we are able to discern, the terms "ML income,"
"VI income," "IT income," and "EX external disbursement," that
is, the types of transactions that result in fees, are not
defined anywhere in the regulations. Moreover, the judge did
not make any findings as to the meaning of any of these terms or
as to whether any fees imposed on the defendant's inmate account
were related to any of these types of transactions. The
Commonwealth has provided documents in an effort to explain the
various types of transactions, but these documents, which were
not before the judge, do not use the abbreviations listed in the
regulation.

     2 The question whether a defendant is entitled to a refund
of drug analysis fees imposed as a result of a subsequently
invalidated conviction was not presented in Martinez, and we
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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).3 As we shall explain, neither the statute nor due
process requires that those fees be refunded.

     Facts. In 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.4

     Statute. The defendant argues that the account fees must
be refunded under G. L. c. 278, § 14, which provides:



therefore did not address it at that time. Commonwealth v.
Martinez, 480 Mass. 777, 792 (2018).
     3 We do not have before us other fees that might be imposed

after a conviction, such as parole fees, and we therefore do not
address them.

     4 The Commonwealth states that the total amount was thirty-
three dollars. The defendant explains the discrepancy by
stating that one dollar was charged in error and refunded to
him.
                                                                   4


    "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."

     By its 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.

     Due process. The 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."5 "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

    5  The Commonwealth does not dispute the remaining elements
of Martinez and Nelson, namely, that the defendant actually paid
the fees, that his conviction has been invalidated by a
reviewing court, and that no retrial will occur.
                                                                   5


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.

     Under 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.

     Conclusion. The order denying the defendant's motion for a
refund of fees is reversed to the extent that the order denied a
refund of the drug analysis fee. In all other respects, it is
affirmed.

                                        So ordered.
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     Rebecca A. Jacobstein, Committee for Public Counsel
Services, for the defendant.
     David L. Sheppard-Brick, Assistant District Attorney, for
the Commonwealth.
