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revision and are superseded by the advance sheets and bound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

16-P-1508                                            Appeals Court

            COMMONWEALTH     vs.   KAREN BRUNO-O'LEARY.


                           No. 16-P-1508.

       Plymouth.      March 2, 2018. - September 19, 2018.

        Present:   Wolohojian, Massing, & Englander, JJ.


Practice, Criminal, Probation, Revocation of probation,
     Restitution, Findings by judge. Restitution.



     Indictment found and returned in the Superior Court
Department on May 2, 2008.

     A proceeding for revocation of probation was had before
Cornelius J. Moriarty, II, J.


     Pamela Lindmark for the defendant.
     Johanna S. Black, Assistant District Attorney, for the
Commonwealth.


    MASSING, J.    A Superior Court judge revoked the defendant

Karen Bruno-O'Leary's probation and imposed a previously

suspended two-year term of imprisonment because she failed to

make restitution payments.    Although the judge disbelieved the

defendant's testimony that she could not afford the payments, he
                                                                   2


did not sufficiently consider her financial resources and

obligations before deciding to find her in violation.    Without

such findings, the record does not support the judge's

conclusion that the defendant wilfully refused to pay

restitution.   Because we are left with a definite and firm

conviction that an error has been made, we vacate the finding of

violation and the revocation order.1

     Background.   The defendant's imprisonment came more than

seven years after a protracted period of probation that began on

January 29, 2009, when she pleaded guilty to an indictment

charging a single count of larceny over $250.2   The plea judge

sentenced her to a suspended house of correction term of two and

one-half years, with a five-year probationary period, and

ordered the defendant to pay $98,000 in restitution:    $10,000 to




     1 The defendant has served the maximum sentence for her
conviction. The appeal is not moot, however, because the
revocation of probation may have collateral consequences. See
Commonwealth v. Wilcox, 446 Mass. 61, 61 n.1 (2006); Blake v.
Massachusetts Parole Bd., 369 Mass. 701, 703-704 (1976).

     2 The indictment alleged that the defendant "on diverse
dates on or between August 31, 2006 through November 20, 2007,
. . . pursuant to a single scheme, did steal or with intent to
defraud obtain by a false pretense, or did unlawfully, and with
intent to steal or embezzle, convert, or secrete with intent to
convert, the property of Summer Hill Condominium Owners the
value of such property exceeding two hundred and fifty dollars,"
in violation of G. L. c. 266, § 30. The record before us is
silent about the nature of the crime. Based on the restitution
order, we infer that it involved a substantial sum.
                                                                     3


be paid the next day, and the remainder to be paid in accordance

with a schedule to be determined by the probation department.

     The probation department issued the defendant several

violation notices over the course of her probationary period,

primarily for failure to make restitution payments, but also for

technical violations and new criminal behavior.3   It soon became

apparent that the defendant's ability to make restitution

payments was an issue.    At a probation violation hearing held on

March 21, 2012, the plea judge suspended the defendant's

restitution obligation based on her indigency and ordered the

probation department to interview the defendant every four

months to assess her ability to pay.    On June 26, 2013, the

probation department reported to a second judge -- the judge who

would ultimately impose the suspended sentence, referred to

hereinafter as "the judge" -- that the defendant remained

indigent.   The judge continued the case for further review of

the defendant's financial status.

     On December 16, 2013, the probation department issued

another violation notice, this time alleging failure to pay

restitution of $89,000.   On January 10, 2014, with the end of

the defendant's original five-year probationary period

     3 From the record before us, it does not appear that the
defendant was ever held in violation based on allegations of
criminal conduct, or that she was convicted of any additional
crimes.
                                                                      4


approaching, a third judge found the defendant in violation and

extended her probation for one year, to January 29, 2015.     Five

months later, the defendant filed a motion to reconsider her

restitution obligation.     At a hearing held on July 14, 2014, the

plea judge extended the defendant's probation for another year,

until January 29, 2016, and once again ordered the probation

department to review the defendant's finances every four months

to determine her ability to pay.    The plea judge further ordered

that "probation be terminated on [January 29, 2016,] upon

successful completion of probation even if there is a balance

left in restitution amount."

     The probation department filed yet another violation notice

on September 11, 2014.    The judge found the defendant in

violation on April 2, 2015, and ordered her to be held without

bail pending sentencing.4    On July 6, 2015, the judge ordered the

defendant to be released and issued a new order of probation:

he extended the defendant's probation for a third time,5 until


     4 The September 11, 2014, notice was based on a complaint
for credit card fraud dated April 30, 2014. Although the record
does not reveal the basis for the judge's finding of a
violation, the judge later commented, "I revoked the bail
because I wanted her to understand the significance of what she
was doing and what the consequences were. . . . She has to know
what the consequences of the failing to -- you know, to abide by
the order are."

     5 All three extensions, and the final probation revocation
hearing, occurred prior to the issuance of Commonwealth v.
                                                                   5


July 6, 2018; ordered her to pay $300 per month in restitution

starting August 5, 2015; and ordered her to submit an affidavit

detailing her assets and personal property by that date.    The

defendant provided the affidavit and made a partial restitution

payment in August, 2015, a full payment in September, a partial

payment in October, and no payments thereafter.   The probation

department issued another violation notice on December 14, 2015,

for failure to make restitution payments.

    At the final probation revocation hearing held on March 25,

2016, the defendant stated that she could no longer afford the

$300 monthly restitution payments because her financial

situation changed drastically in August, 2015.    Her testimony,

supplemented by a revised affidavit submitted at the hearing,

showed that she and her two children received total monthly

Social Security disability benefits of $2,087; she also received

$324 per month in food stamps.   She was unemployed and actively

searching for work, which her felony conviction made difficult.

She had enrolled in an online medical transcription certificate

program so she could work from home.   Her husband, who had been

receiving workers' compensation payments since September, 2015,



Henry, 475 Mass. 117 (2016). As discussed infra, Henry
articulated the legal standard for determining a defendant's
ability to pay restitution, id. at 126-127, and established that
extending the length of probation merely because the probationer
is unable to pay restitution is improper. Id. at 124.
                                                                    6


had lost his job in January, 2016.    Neither the defendant nor

her husband had any retirement savings, bank accounts, or

stocks.   The family used a car that they borrowed from the

defendant's mother-in-law.

    As to expenses, the family rented a three-bedroom house for

$1,695 per month.   In order to pay the $1,600 heating oil bill

for the winter, they had not paid the electric bill and owed

$1,400.   The defendant and her husband paid $105 per month for

two cellular telephones (cell phones) and cell phone service.

The defendant recalled that during the last restitution hearing,

when the judge set the amount at $300 per month, the judge said

"that the monthly restitution payment could be adjusted if [she]

was unable to make the set monthly payments."

    After hearing the defendant's testimony, the judge said

that he simply did not believe her.    "She was told that if

[there are] issues with payment, . . . come back in.     And she

never did. . . .    I don't believe her; okay?   I just don't.

She's had her chances, multiple chances.   And she has just

simply decided that she's going to do what she wants to do."

The judge found the defendant in violation and revoked bail.       At

defense counsel's request, the judge agreed to delay final

disposition for one week (until April 1, 2016) to allow counsel

to brief the legal issues concerning the revocation of the
                                                                    7


defendant's probation in light of her professed inability to

pay.

       At the April 1, 2016, hearing, the judge entertained the

defendant's motion to reconsider his determination that she had

violated the terms of her probation.    The judge reiterated his

finding that "her violation of probation is willful," and that

he had "grave doubts about her credibility."    For example, the

judge noted that the defendant's winter heating bills would not

have affected her ability to make restitution payments in

October or November.     Concluding that the defendant "made very

little effort over the past seven years to make this good," the

judge revoked the defendant's probation and ordered the

defendant committed to serve the balance of her suspended

sentence.6

       Discussion.   In probation revocation proceedings, the

Commonwealth bears the burden of proving, by a preponderance of

the evidence, that the probationer violated the terms and

conditions of her probation.    See Commonwealth v. Holmgren, 421

Mass. 224, 226 (1995).    When the alleged violation is the

failure to make payments imposed as a term or condition of



       During the revocation hearings, defense counsel alerted
       6

the judge that the original sentence of two and one-half years
in a house of correction exceeded the maximum sentence to a
house of correction permitted by G. L. c. 266, § 30. The judge
entered a corrected sentence of two years.
                                                                    8


probation, the Commonwealth must show that the violation was

wilful.   See Commonwealth v. Henry, 475 Mass. 117, 121-122

(2016); Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010);

Commonwealth v. Pereira, 93 Mass. App. Ct. 146, 152 & n.7

(2018).

    Inability to pay negates wilfulness.    "A defendant can be

found in violation of a probationary condition only where the

violation was wilful, and the failure to make a restitution

payment that the probationer is unable to pay is not a wilful

violation of probation."   Henry, 475 Mass. at 121.   See Bearden

v. Georgia, 461 U.S. 660, 669 n.10 (1983) ("[B]asic fairness

forbids the revocation of probation when the probationer is

without fault in his failure to pay [a] fine").   Furthermore,

the defendant's mere ability to pay restitution is not enough.

Unless a defendant can pay restitution "without causing

substantial financial hardship" to herself and her dependents,

failure to pay restitution is not wilful.   Henry, supra at 127.

Conversely, "violation of a probation condition involving the

payment of money is wilful where the probationer has not shown

an inability to pay or that the nonpayment was without fault or

otherwise justified."   Pereira, 93 Mass. App. Ct. at 152 n.7.

See Henry, supra at 124 n.6, quoting Bearden, supra at 668 ("If

the probationer has willfully refused to pay the fine or

restitution when he has the means to pay, the State is perfectly
                                                                    9


justified in using imprisonment as a sanction to enforce

collection"); Commonwealth v. Gomes, 407 Mass. 206, 213 (1990)

("No constitutional difficulty is posed by the incarceration of

a defendant who refuses or neglects to pay a fine").

     When a judge is considering an order of restitution as a

component of a criminal sentence, and the defendant asserts an

inability to pay, the defendant bears the burden of establishing

her lack of means by a preponderance of the evidence:

     "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')."

Henry, 475 Mass. at 121.   We have indicated that the probationer

also bears the burden of proving inability to pay as a defense

in probation violation proceedings.   See Pereira, 93 Mass. App.

Ct. at 152 n.7.7

     The defendant contends that the judge erred in determining

that she failed to show an inability to pay and therefore

wilfully violated the restitution order.   "On appeal, we are


     7 In Pereira, 93 Mass. App. Ct. at 151, unlike the case
before us, the defendant "offered no actual evidence of her
inability to make the payments."
                                                                     10


bound by a judge's findings of fact that are supported by the

evidence, including all inferences that may reasonably be drawn

from the evidence."     Klairmont v. Gainsboro Restaurant, Inc.,

465 Mass. 165, 183 (2013), quoting Twin Fires Inv., LLC v.

Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005).

"The credibility of witnesses, particularly, is a preserve of

the trial judge upon which an appellate court treads with great

reluctance."    Springgate v. School Comm. of Mattapoisett, 11

Mass. App. Ct. 304, 310 (1981).     "But it is not forbidden

territory.     There are exceptional cases 'where such findings

have been changed in whole or in part on appeal, because plainly

wrong.'"   Id., quoting Spiegel v. Beacon Participations, Inc.,

297 Mass. 398, 407-408 (1937).     "A finding is clearly erroneous

[and thus not supported by evidence] when there is no evidence

to support it, or when, 'although there is evidence to support

it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been made.'"

Care & Protection of Olga, 57 Mass. App. Ct. 821, 824 (2003),

quoting Custody of Eleanor, 414 Mass. 795, 799 (1993).     This is

such a case.

    The evidence was uncontested that the defendant was not

employed and that Social Security disability benefits and food

stamps were her only sources of income.     She was also, together

with her unemployed husband, supporting two children.     The judge
                                                                  11


inferred that her failure to pay must have been wilful because

she chose to make partial payments in some months and made no

payments in others, without informing the probation department

that she could no longer afford to make the payments.8   However,

the judge did not have the benefit of the Henry decision, which

was issued approximately four months after the hearings in this

case, and his findings "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 food,

shelter, and clothing for the defendant and . . . her

dependents.'"   Commonwealth v. Vallejo, 480 Mass. 1001, 1002

(2018), quoting Henry, 475 Mass. at 126.

     Indeed, the record suggests the opposite.   The judge

appeared to consider whether the defendant had the mere ability

to pay, noting that she had the money to pay for other


     8 Of course, before ordering restitution payments, "the
judge should 'consider whether the defendant is financially able
to pay the amount ordered.'" Henry, 475 Mass. at 120, quoting
Commonwealth v. Nawn, 394 Mass. 1, 7 (1985). "To allow a judge
to impose a restitution amount that the defendant cannot afford
to pay simply dooms the defendant to noncompliance." Henry,
supra at 122. The record before us does not include a
transcript of the July, 2015, hearing during which the judge
revised the terms of the defendant's probation to include
restitution payments of $300 per month, and the defendant does
not assert that the order was wrongly imposed.
                                                                  12


necessities such as heating and a cell phone.9   Yet the question

is not whether the defendant is able to pay restitution, but

whether she can do so "without causing substantial financial

hardship" to herself or her dependents.   Henry, supra at 127.

The judge, without the guidance of Henry, did not consider the

defendant's ability to pay under this standard.10

     The defendant exercised poor judgment by failing to heed

the judge's admonition that she "come back in" if she found

herself unable to afford the court-ordered restitution payments.

However, the judge did not make it a condition of the

defendant's probation that she provide updates on her financial

status.   See id. at 126 ("The defendant may be required to


     9 The judge erred when, during the April 1, 2016, hearing,
he asked to see the defendant's cell phone, noted that he knew
its value to be $600 because he had the same one, and drew a
negative inference about her credibility on that basis. "It is
. . . plainly accepted that the judge is not to use from the
bench, under the guise of judicial knowledge, that which he
knows only as an individual observer outside of court." Duarte,
petitioner, 331 Mass. 747, 749 (1954), quoting Wigmore on
Evidence § 2569 (3d ed. 1940). Moreover, the judge did not
provide the defendant with an opportunity to explain why, as a
mother of two young children, she may have needed a reliable
cell phone.

     10In An Act Relative to Criminal Justice Reform, St. 2018,
c. 69, the Legislature amended several statutes regarding
criminal defendants' indigency and ability to seek waiver of
certain fees by inserting the "substantial financial hardship to
the individual, the individual's immediate family or the
individual's dependents" standard derived from Henry. See id.
at §§ 35-36, 100, 105, 112, 129, 133, 135, 149-151, 158, 163-
165, 181-182, 184, 208-209, 211, 213.
                                                                      13


report to his or her probation officer any change in the

defendant's ability to pay").    And her failure to do so does not

support the judge's conclusion that she could afford to make the

payments.   See Commonwealth v. Jones, 9 Mass. App. Ct. 83, 90-91

(1980), quoting McDonough v. Vozzela, 274 Mass. 552, 558 (1924),

and Carmichael v. Carmichael, 324 Mass. 118, 121 (1949) ("[I]t

is well settled that '[m]ere disbelief of testimony is not proof

of facts of an opposite nature or tendency,' and that 'such

disbelief [will] not be [the] equivalent of proof to the

contrary'").    While the judge was free to reject the defendant's

testimony on credibility grounds, lacking a full consideration

of the Henry factors, the record does not afford a reasonable

basis for finding that the defendant wilfully violated the terms

of probation.

    "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."   Vallejo, 480 Mass. at 1002.   Accordingly, the

finding of a violation must be vacated.    In view of the fact

that the defendant has fully served her sentence, however, there

is no occasion to remand the case for further proceedings.       In

addition, we note that the defendant's original five-year

probationary period was extended three times for her inability

to pay restitution.   These extensions were ordered prior to the
                                                                   14


issuance of the Henry decision, in which the court declared

"that a judge may not extend the length of probation where a

probationer violated an order of restitution due solely to an

inability to pay."   Henry, 475 Mass. at 124.   Any further

extension of her probation would be impermissible.

    Conclusion.   The order of March 25, 2016, finding the

defendant in violation of the terms of her probation, and the

order of April 1, 2016, revoking probation, are vacated.      An

entry shall be made on the Superior Court docket that the

defendant is discharged and her probation is terminated.

                                   So ordered.
