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16-P-975                                             Appeals Court

                COMMONWEALTH   vs.   MARIA C. PEREIRA.


                            No. 16-P-975.

       Plymouth.        December 4, 2017. - April 13, 2018.

             Present:    Sacks, Ditkoff, & Singh, JJ.


Practice, Criminal, Revocation of probation, Restitution,
     Newspaper article. Constitutional Law, Freedom of speech
     and press. Newspaper. Threatening.



     Indictments found and returned in the Superior Court
Department on April 18, 2014.

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


     Robert A. O'Meara for the defendant.
     Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.


    SACKS, J.    The defendant appeals from a Superior Court

order, entered after hearing, that revoked her probation.      The

judge found that the defendant had violated her probation

conditions by failing to make required weekly restitution

payments and violating a no-contact condition by contacting a
                                                                      2


newspaper to make a threat against the victim, who then saw it

published in an article in the newspaper.     The judge sentenced

her to from three and one-half to five years in State prison.

We affirm.1

     Background.     On July 17, 2015, the defendant pleaded guilty

to one count of larceny over $250, involving embezzlement from

her brother's (victim) construction business in Brockton, where

she had worked as a bookkeeper.    The defendant had been indicted

on sixteen charges; at the time of her guilty plea, the

remaining fifteen charges were dismissed.     The judge sentenced

her to five years of probation, with conditions, among others,

that she:     (1) make restitution to the victim of $103,753.64,

which the judge stated was "a substantial break off of what was

. . . allegedly stolen," to be paid at the rate of $1000 per

week; (2) stay away from the victim's residence and place of

employment, and have no "direct or indirect contact" with him,

his wife, or their children; and (3) execute a financial

affidavit "stating that there are no available funds remaining

from [her 2012] lottery winnings and no other funds or monies




     1 Based on the defendant's unrebutted representation that,
while incarcerated, she had deposited her notice of appeal with
prison authorities for mailing within the time to appeal, we
conclude that her appeal is timely. See Commonwealth v.
Hartsgrove, 407 Mass. 441, 446-447 (1990).
                                                                    3


available."2   After having been given a weekend to consider this

disposition, the defendant had represented to the judge that she

was able to pay the $1000 weekly amount.    The defendant signed,

thereby agreeing to obey, the order of probation conditions.

     Four days later, on July 21, the defendant filed her

financial affidavit, in which she stated that she had exhausted

her $455,000 in lottery winnings.    In the affidavit the

defendant failed, however, to account for $81,000 of those

winnings, and did not assert any inability to pay the

restitution as ordered and agreed.

     On August 14, the defendant was issued a notice of

surrender and hearing for alleged violations of probation

(notice of probation violation) alleging that she had violated

two probation conditions:   failure to make restitution payments

and violation of the no-contact condition.

     At an initial probation violation hearing on August 17, a

probation officer represented that the defendant had made the

first restitution payment, due July 24, but had missed the

payments due July 31 and August 7, and made only a partial

payment on August 15.   The probation officer further represented

that the defendant had violated the no-contact condition by

making comments about the victim in an article that appeared on


     2 In 2012, the defendant had won the Massachusetts lottery
and received, after taxes, a check for $455,000.
                                                                     4


July 28 in a local newspaper, the Enterprise.   Defense counsel

then informed the judge that the defendant had lost her job.

The judge (who had been the sentencing judge) expressed concern

that the defendant, so soon after receiving a relatively lenient

disposition of which the carefully-considered and agreed-upon

restitution condition was a significant component, had

apparently violated that condition.   He ordered the defendant

held without bail pending a final probation violation hearing.

      At that hearing, on September 11, the victim testified that

after the defendant had pleaded guilty, the victim had made

comments about her, including that she was a "scum bag," in an

article about the case that appeared in the Enterprise on July

17.   The victim described the Enterprise as the "most widely

published newspaper in the Brockton area."    On July 28, a second

article appeared in the Enterprise, stating that the defendant

had called the newspaper to say, among other things, that she

"'covered up' things for [the victim] while she was a bookkeeper

for his company" and that she had "enough evidence against him

that will probably put both of us in jail."   The article further

quoted her as saying:   "I am not guilty for anything. . . .    My

attorneys gave me bad advice. . . .   My side of the story is I'm

innocent and his day is coming.   Justice will be served against

him."
                                                                  5


    The victim testified that he had read this article and had

interpreted the defendant's comments as "threats that she had

information that she was going to put [him] . . . in jail."     The

victim explained that seeing the article had affected him

emotionally:

    "I thought that the court case was closed and I had some
    relief from this whole situation. And apparently, it just
    continued. . . . I tried to close a chapter in my life
    with her bad doing. And it's just relentless, the stuff
    she is saying about me. . . . I felt that I gave my
    sister, my bookkeeper, the best possible leniency that I
    could have. And then to have it come out in the newspaper
    that she had information and that . . . she was given wrong
    counsel when she admitted that she did wrong, that to me
    was just -- closure wasn't set in and made me feel
    uptight."

    The probation officer then represented to the judge that,

before the defendant signed the probation conditions, he had

reviewed them with her "starting from the first condition all

the way to the final signature."   He had also "specifically

instructed [her], no contact with the victim, direct or

indirect," and advised her that she "[could not] have a friend

talk for her, have a letter written to another person and have

that letter find its way back to the [victim].    It was very

clear what third party [indirect] contact was."   The probation

officer had also represented, again, that the defendant had not

made all required restitution payments.

    At that point in the hearing, the judge stated that he was

treating the probation officer's statements as evidence and
                                                                    6


asked defense counsel if he wished to cross-examine the

probation officer or offer any evidence for the defendant.

Defense counsel declined both invitations.3    He limited his

closing argument to asserting that the defendant had a

constitutional right to make comments about the victim in the

newspaper, in order to defend her reputation against his prior

remarks about her in the same newspaper.

     The judge rejected the defendant's free speech argument and

found that she had violated the no-contact condition of her

probation by "issuing [the victim] a threat."    With respect to

restitution, the judge found:   "[S]he has not paid the money

that she promised to pay.   And I have no evidence before me that

it is impossible for her to pay the money."4    Consequently, he


     3 Earlier in the hearing, defense counsel repeated his
assertion that the defendant had lost her job, but he never
introduced any evidence to that effect or stated that it had
occurred before she failed to make two of her weekly restitution
payments. The assistant district attorney assisting the
probation officer stated in his closing argument: "[Y]ou may
recall during the course of the sentencing hearing [following
the plea], she represented that she worked for N&J Bookkeeping,
which is her own company, not a company that she could
conceivably be fired from. And now she's claiming that's why
she can't pay the money that she's promised to pay." Defense
counsel responded, "[M]y client informs me that she does not own
the business which she was fired from." The judge did not make
a finding on the issue, nor does the record contain a transcript
of the plea or sentencing hearing.

     4 The judge also stated, in pertinent part: "[T]here was
evidence that at that time she had won the lottery. So I am not
convinced that she did not have the ability to pay $1,000 a
week, which she specifically said that she could pay."
                                                                   7


vacated the order of probation and asked for the probation

officer's recommendation as to disposition.

    The probation officer asked for a sentence of three to five

years, reminding the judge that at the time the defendant

pleaded guilty:

    "[T]he court was quite clear with its concern with
    regarding this order. That the court wanted to make the
    [victim] whole and was going to take any attempt to make
    him whole. . . . And as the article suggests, [the
    defendant] didn't accept responsibility. And if that's the
    case, Your Honor, placing her on probation again is not
    going to drive that point home any clearer than it would
    have been on the day that contract was signed.

         "So for those reasons, I'm asking the sentence be
    imposed."

Defense counsel asked that the defendant be reprobated.

    The judge then reviewed the defendant's record, which

included being placed on probation in 1999 for an attempted

larceny conviction; in 2005 after charges of larceny over $250,

uttering, and forgery were continued without a finding; in 2013

for two larceny by check convictions; and for a different

larceny over $250 conviction.   The judge stated, "She's been

placed on probation quite a few times . . .[and] it was very

compassionate of her brother[,] who has been the victim of this,

not to request jail time."   Yet, he continued, after she had

been given time to carefully consider her plea and had agreed

that she could make the required weekly payment, she "makes one

payment and that's it . . . [a]nd then takes it to the press,
                                                                        8


which is what she did, to threaten her brother."      The judge

sentenced the defendant to a term of three and one-half to five

years in State prison.5

         Discussion.   1.   Failure to make restitution.   The judge,

who had also accepted the defendant's guilty plea, had ample

evidence to support his finding, by a preponderance of the

evidence, that the defendant did not make the required

restitution payments and thus had violated that condition of her

probation.     See Commonwealth v. Durling, 407 Mass. 108, 111-112

(1990).     We reject the defendant's argument, under Commonwealth

v. Henry, 475 Mass. 117 (2016), that the judge abused his

discretion by failing to consider, at the final probation

violation hearing, the defendant's claimed inability --

unsupported by any evidence -- to make the payments.       Under

Henry, at a restitution hearing, "[w]here 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."      Id. at 121.   Nothing in Henry, which

requires that a judge determine the extent of a defendant's

ability to make restitution, required the judge here, in the




     5 On appeal, the defendant challenges only the findings of
violations, not the resulting disposition. Once a violation is
found, "[h]ow best to deal with the probationer is within the
judge's discretion." Commonwealth v. Durling, 407 Mass. 108,
111 (1990).
                                                                     9


absence of any new evidence on the point, to look behind the

defendant's own original representation and agreement that she

was able to pay the specified amounts.     See id. at 118, 121.

       Under Henry, "[t]he defendant may be required to report to

his or her probation officer any change in the defendant's

ability to pay, and the probation officer may petition the judge

to modify the condition of probation . . . based on any material

change in the probationer's financial circumstances."     Id. at

126.   Here, however, instead of reporting any changed

circumstance to her probation officer pursuant to Henry, or

seeking modification of probation conditions, the defendant

simply failed to make the payments that she had agreed a few

weeks earlier she could make, and then, once charged with the

violation of that probation condition, she offered no actual

evidence of her inability to make the payments.     See

Commonwealth v. Avram A., 83 Mass. App. Ct. 208, 210, 211-214

(2013) (affirming finding that juvenile had violated restitution

condition of probation, where juvenile offered no evidence of

inability to pay, other than evidence of small bank account, out

of which he had made no payments).

       We do not agree with the defendant's claim that she

presented such evidence by means of her previously-filed

financial affidavit; nowhere within it did she state that she

was unable to make the payments.     Nor did the defendant support
                                                                  10


her motion to modify probation conditions, which she filed more

than two weeks after the notice of probation violation had

issued and which was denied on September 11, with any affidavit

or other evidence of inability to pay; the assertions of her

counsel are not evidence.    See id. at 212.

     Section 6(B) of the Guidelines for Probation Violation

Proceedings in the Superior Court (2016),

http://www.mass.gov/service-details/guidelines-for-probation-

violation-proceedings-in-the-superior-court

[https://perma.cc/FP63-D6UE], governing final probation

violation hearings, codifies preexisting practice by calling for

an evidentiary hearing.6    See, e.g., Commonwealth v. Ventura, 465


     6   Section 6(B) provides in pertinent part:

     "A final violation hearing shall consist of two parts: (1)
     an evidentiary hearing to adjudicate whether the alleged
     violation has occurred; and (2) upon a finding of
     violation, a dispositional hearing. . . .

     "The probation officer shall have the burden of proving
     that a probationer has violated one or more conditions of
     probation by a preponderance of evidence. At the request
     of a probation officer, or when required by G. L. c. 279,
     § 3, the District Attorney may participate in the
     presentation of evidence or examination of witnesses.
     Hearsay evidence shall be admissible at a Violation Hearing
     as permitted under Sections 802 through 804 of the
     Massachusetts Guide to Evidence, or when determined by the
     judge to be substantially reliable. The probationer shall
     have the right to cross examine any witnesses called by the
     probation officer, including the probation officer; the
     right to call witnesses; the right to present evidence
     favorable to the probationer; the right to testify; and the
     right to make closing argument on the issue of whether a
                                                                      11


Mass. 202, 203-204 (2013).    A judge conducting such a hearing,

no less than the probationer, is entitled to require evidence of

an alleged violation, as well as evidence of any defense

thereto.    Here the defendant offered no evidence at all in

support of her defense of inability to pay restitution.

     We therefore see no error in the judge's finding that the

defendant violated the restitution condition of probation,

including his implicit finding that the nonpayment was wilful,

as is required for the nonpayment to warrant revocation.7       See

Henry, 475 Mass. at 121, 124 n.6.

     2.    Violation of no-contact condition.   The defendant

argues that the judge violated the defendant's free speech




     violation has been proved by a preponderance of evidence."
     (Footnote omitted.)

     7 As the Supreme Judicial Court has recently observed,
"wilfulness" does not "have a consistent meaning in our
jurisprudence." Millis Pub. Schs. v. M.P., 478 Mass. 767, 776
(2018). "[S]ome definitions focus on the actor's purpose, while
others focus only on whether the actor's conduct was voluntary
or intentional." Ibid. We read Henry, and the decisions it
relies upon, as indicating that 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. Henry, 475
Mass. at 121-122, citing Bearden v. Georgia, 461 U.S. 660, 669
n.10 (1983). See Commonwealth v. Gomes, 407 Mass. 206, 212-213
(1990). See also Commonwealth v. Canadyan, 458 Mass. 574, 578-
579 (2010). The Henry court also cited Avram A., 83 Mass. App.
Ct. at 212-213, as a case involving a wilful violation. Henry,
475 Mass. at 124 n.6. In short, as stated in Henry, "the
defendant bears the burden of proving an inability to pay." Id.
at 121.
                                                                   12


rights under the Federal and State constitutions when he found

that she had violated the no-contact condition by making

statements about the victim in an article published in a

newspaper.   She contends that she was not attempting to contact

the victim, but was merely exercising her right to free speech

in a public forum by responding to the victim's disparaging

remarks that appeared in an earlier article in the same

newspaper.   On these specific facts, we disagree.

     The defendant's constitutional argument is that her

statements to the newspaper, because they did not constitute a

constitutionally unprotected "true threat," could not be viewed

as violating the no-contact condition.   Although the defendant

is correct that her remarks were not a "true threat,"8 she

overlooks an important principle governing a probation condition

such as hers.

     "Judges are permitted significant latitude in imposing

conditions of probation, . . . and '[a] probation condition is

not necessarily invalid simply because it affects a


     8 "The United States Supreme Court has defined 'true
threats' as 'those statements where the speaker means to
communicate a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group of
individuals.'" Commonwealth v. Walters, 472 Mass. 680, 690-691
(2015), quoting from Virginia v. Black, 538 U.S. 343, 359 (2003)
(Black). O'Brien v. Borowski, 461 Mass. 415, 423-424 (2012).
The First Amendment "permits a State to ban a 'true threat.'"
Black, 538 U.S. at 359, citing Watts v. United States, 394 U.S.
705, 708 (1969) (per curiam).
                                                                   13


probationer's ability to exercise constitutionally protected

rights.'"    Commonwealth v. Rousseau, 465 Mass. 372, 389-390

(2013) (quotation omitted).     Courts have previously upheld

conditions of probation that affect First Amendment rights so

long as they are "reasonably related to a valid probation

purpose."    Commonwealth v. Power, 420 Mass. 410, 417 (1995),

cert. denied, 516 U.S. 1042 (1996).     See Commonwealth v. Obi,

475 Mass. 541, 547-548 (2016).    "The principal goals of

probation are rehabilitation of the defendant and protection of

the public."    Commonwealth v. Lapointe, 435 Mass. 455, 459

(2001).     Accord Rousseau, 465 Mass. at 390.   A probation

condition forbidding contact with, including threats to, the

victim has a clear rational relationship to both of these goals:

encouraging the defendant's acceptance of responsibility for the

crime and protecting the victim, as a member of the public, from

further harm, whether emotional, physical, or financial, at the

hands of the defendant.     The defendant does not argue that these

are not valid goals, or that the no-contact condition, as

applied here, trenched more broadly on her free speech rights

than necessary to achieve these goals.

    "[N]o contact" probation conditions, as well as "the term

'no contact' in the related context of G. L. c. 209A protective

orders," have been read broadly "to foreclose a myriad of

potential encounters, engagements, or communications between
                                                                   14


people."   Commonwealth v. Kendrick, 446 Mass. 72, 75-76 (2006).

See Commonwealth v. Consoli, 58 Mass. App. Ct. 734, 741 (2003)

("Our broadly protective interpretation of 'contacts,' an

interpretation fully consistent with the statutory purpose [of

G. L. c. 209A], means that one cannot undermine a no contact

order by the simple expedient of ricocheting prohibited comments

off of third parties").

     The defendant here makes no argument that the no-contact

condition of probation was insufficiently clear to put her on

notice that contact made through her directing comments at the

victim through a newspaper article was prohibited.   See

Kendrick, 446 Mass. at 75, quoting from Commonwealth v. Orlando,

371 Mass. 732, 734 (1977) (No-contact probation condition

constitutionally sufficient where, although "imprecise," it

provided "comprehensible normative standard so that [people] of

common intelligence will know its meaning").   The probation

officer had warned the defendant that contact through third

parties was prohibited.   She nevertheless took the initiative to

contact the newspaper to make statements about the victim that

he could, and did, reasonably understand as threats.9   Indeed,


     9 If, for example, a reporter had randomly stopped the
defendant on the street to ask her view on some unrelated matter
of public interest, and the defendant's response had been
published in a newspaper and thereby come to the victim's
attention, even foreseeably, a different case would be
presented.
                                                                  15


the judge found that her statements constituted "issuing [the

victim] a threat."    As defense counsel conceded before this

court at oral argument, the defendant should reasonably have

known that her statements to the newspaper about the victim

would come to the victim's attention.10    We thus see no error in

the judge’s finding and conclusion that, in these circumstances,

the defendant's remarks violated a valid no-contact condition of

probation.

     Conclusion.     The judge did not err in revoking the

defendant's probation based on his well-supported findings that

the defendant had violated her probation conditions by failing




     10The defendant nevertheless argues that there was
insufficient proof of her intent to make a threat; she notes
that a conviction under the threat component of the criminal
stalking statute, G. L. c. 265, § 43(a)(2), requires proof of
intent both to place the victim in fear and to communicate a
threat to the victim. See Walters, 472 Mass. at 692-693. But
the defendant does not explain why those intent requirements,
which serve in part to confine the reach of the stalking statute
to constitutionally-unprotected "true threats," id. at 691-692,
should apply in the context of an alleged violation of a no-
contact condition of probation, where a defendant's
constitutional rights are subject to reasonable restrictions.
We think the cases concerning no-contact provisions of G. L.
c. 209A orders are a better source of guidance. See, e.g.,
Kendrick, 446 Mass. at 76 (defendant violates no-contact
provision of G. L. c. 209A order by communicating by any means
with protected person; proof of intent to violate order is not
required, but defendant could not be found in violation if he
neither knew nor reasonably should have known that his conduct
would result in contact with protected person). See also
Commonwealth v. Silva, 431 Mass. 194, 200 (2000) (proof of
intent to violate G. L. c. 209A order not required; proof that
act constituting violation was voluntary suffices).
                                                                 16


to adhere to the restitution payment schedule and the terms of

the no-contact condition.

                                   Order revoking probation and
                                     imposing sentence affirmed.
