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revision and are superseded by the advance sheets and bound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-12056

                 COMMONWEALTH   vs.   PIERCE A. MARTIN.



      Norfolk.       September 7, 2016. - November 25, 2016.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


     Practice, Criminal, Costs, Fees and costs, Probation.


     Complaint received and sworn to in the Quincy Division of
the District Court Department on October 19, 2010.

     A motion to withdraw a guilty plea, filed on October 3,
2012, was heard by Mary Hogan Sullivan, J., and motions for the
return of seized property, filed on November 21, 2012, and July
22, 2013, were heard by Mark S. Coven, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Ilse Nehring for the defendant.
     Susanne M. O'Neil, Assistant District Attorney, for the
Commonwealth.


    HINES, J.     In October, 2011, the defendant, Pierce A.

Martin, pleaded guilty in the Quincy Division of the District

Court Department to possession of a class D substance (second

offense).   At sentencing, the plea judge imposed a one-year term
                                                                    2


of probation and, as mandated by statute, the probation

supervision fees (G. L. c. 276, § 87A) and the victim-witness

assessment (G. L. c. 258B, § 8).   In October, 2012, after the

revelation of misconduct at the William A. Hinton State

Laboratory Institute (Hinton laboratory), a judge granted the

defendant's unopposed motion to withdraw his guilty plea on the

ground that Annie Dookhan,1 the subsequently discredited analyst

at the center of the misconduct allegations, performed the

analysis of the substances seized during the defendant's arrest.

See Commonwealth v. Scott, 467 Mass. 336 (2014).   The

Commonwealth entered a nolle prosequi on the underlying

complaint.   Thereafter, the defendant filed a motion for return

of property, including probation supervision fees ($780) paid

during the term of probation and the victim-witness assessment

(fifty dollars), claiming a right to recoup these amounts where

the conviction, in the defendant's view, was vacated on

constitutional grounds.2   The judge denied the motion, and the

defendant appealed.   We transferred the case from the Appeals

Court on our own motion.   We conclude that there is no statutory


     1
       For a comprehensive description of Dookhan's indictment
and guilty pleas, and the investigation of the Hinton
laboratory, see Commonwealth v. Scott, 467 Mass. 336, 337-342
(2014).
     2
       The defendant's motion also sought the return of cash
($109) seized during the arrest. The judge allowed this aspect
of the motion.
                                                                      3


authority for the return of the probation supervision fees and

the victim-witness assessment paid by the defendant.     Therefore,

we affirm the denial of the defendant's motion for return of

property.

    Background.    We summarize the relevant facts from the

record.   On October 18, 2010, Quincy police officers arrested

the defendant following a motor vehicle stop.    Incident to the

arrest, the police seized a large plastic bag containing seven

smaller plastic bags filled with what appeared to be marijuana

and $109 in United States currency.    The next day, a five-count

complaint issued charging the defendant with possession of a

class D substance (marijuana) with intent to distribute,

subsequent offense, G. L. c. 94C, § 32C (b); commission of a

drug offense in a school zone, G. L. c. 94C, § 32J; unlicensed

operation of a motor vehicle, G. L. c. 90, § 10; failure to

stop, G. L. c. 98, § 9; and failure to wear a seatbelt, G. L.

c. 90, § 13A.

    On October 13, 2011, the defendant pleaded guilty to

possession of a class D substance, subsequent offense.     In

contemplation of a guilty plea, the Commonwealth dismissed the

school zone violation and filed the remaining charges with the

defendant's consent.    The plea judge imposed the defendant's

recommended sentence:   a one-year supervised term of probation,

with conditions requiring the defendant to abstain from drugs
                                                                    4


and submit to random drug testing.   In addition, the judge

imposed statutorily mandated fees including a one-time victim-

witness assessment of fifty dollars, as well as a monthly

probation supervision fee of sixty dollars and a monthly victim

services surcharge of five dollars (collectively, probation

fees).

     On January 4, 2012, a violation of probation notice issued

for the defendant.   On August 28, 2012, the defendant waived his

right to a probation hearing and stipulated to the violation for

failing to comply with probation conditions including drug

testing, payment of the monthly probation fees, and reporting to

his probation officer.3   The plea judge extended the defendant's

probation for one year on the same terms, and imposed office of

community corrections "Level III" supervision with global

positioning system monitoring for ninety days.

     On October 31, 2012, a judge allowed the defendant's

unopposed motion to withdraw his guilty plea based on Dookhan's

involvement as the analyst of the substance seized from the

defendant during his arrest.   The Commonwealth entered a nolle

prosequi for the underlying complaint "in the interest of

justice in light of the ongoing criminal investigation into the

mishandling of evidence at the [Hinton laboratory]," while


     3
       The defendant concedes that he was absent from supervised
probation for eight and one-half months.
                                                                     5


maintaining the existence of sufficient evidence to prosecute

the complaint.

     On July 22, 2013, the defendant filed a motion for return

of property, seeking the return of the probation fees and the

victim-witness assessment paid during his probation.4      After a

hearing, the judge denied the motion.

     Discussion.    The defendant argues that the language of

G. L. c. 258B, § 8 (§ 8), requires the return of the victim-

witness assessment where the underlying conviction is vacated

through postconviction relief.     Specifically, he argues that he

is entitled to recoup the payment of probation fees assessed

pursuant to G. L. c. 276, § 87A (§ 87A), on the ground that his

conviction is "void" and that equity requires the relief he

seeks.     He also claims that the probation fees are an

impermissible fine or penalty where the underlying conviction is

vacated.    We address these arguments in turn, both of which lack

merit.

     1.    Victim-witness assessment.   The defendant argues that

the language in § 8 requiring the return of the victim-witness

assessment where a conviction is "overturned on appeal" also

applies to this case where the conviction was vacated as a



     4
       The defendant was ordered to pay the victim-witness
assessment for both his initial probationary term and his
extended term of probation.
                                                                    6


consequence of the judge's order granting the defendant's motion

to withdraw his guilty plea.   We disagree.

    The issue is one of statutory interpretation.     "We review

questions of statutory interpretation de novo."    Chin v.

Merriot, 470 Mass. 527, 531 (2015), citing Sheehan v. Weaver,

467 Mass. 734, 737 (2014).   "[T]he meaning of a statute must, in

the first instance, be sought in language in which the act is

framed, and if that is plain, . . . the sole function of the

courts is to enforce it according to its terms."    Commonwealth

v. Dalton, 467 Mass. 555, 557 (2014), quoting Commonwealth v.

Boe, 456 Mass. 337, 347 (2010).   "We are obliged to discern and

give effect to the intent of the Legislature."     Wing v.

Commissioner of Probation, 473 Mass. 368, 373 (2015), citing

Oxford v. Oxford Water Co., 391 Mass. 581, 587–588 (1984).

    Thus, we begin the analysis with the language of the

statute:

         "The court shall impose an assessment of [fifty
    dollars] against any person who has attained the age of
    seventeen and who is convicted of a misdemeanor or against
    whom a finding of sufficient facts for a conviction is made
    on a complaint charging a misdemeanor. . . . The
    assessment from any conviction or adjudication of
    delinquency which is subsequently overturned on appeal
    shall be refunded by the court to the person whose
    conviction or adjudication of delinquency is overturned"
    (emphasis added).

G. L. c. 258B, § 8.   The plain language of § 8 demonstrates that

the disposition in this case, the withdrawal of a guilty plea
                                                                      7


followed by an order vacating the conviction, does not

constitute a conviction that was "overturned on appeal."       See

Dalton, 467 Mass. at 557.    Here, the defendant did not appeal

from his conviction; rather, his conviction was vacated after a

judge of the District Court granted postconviction relief

through Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501

(2001), and the Commonwealth subsequently entered a nolle

prosequi.    That procedural difference is dispositive here.    The

plain language of § 8 specifically limits persons entitled to a

refund to those whose conviction or adjudication of delinquency

was overturned on appeal.    G. L. c. 258B, § 8.   See Commonwealth

v. Chamberlin, 473 Mass. 653, 660 (2016).

    The Legislature clearly intended to provide a refund for

the § 8 assessment to a narrow category of defendants because it

used the specific phrase "overturned on appeal."    If the

Legislature had intended to expand the pool of eligible

claimants to those whose convictions were overturned through

postconviction relief under Mass. R. Crim. P. 30, or other types

of judicial relief, it could have stated that intention

expressly.    See Chin, 470 Mass. at 532.   Contrast G. L. c. 258D,

§ 1 (B) (ii) (eligible defendants include "those who have been

granted judicial relief by a state court of competent

jurisdiction").   Moreover, the phrase "overturned on appeal" has

remained unchanged in the statute despite the fact that the
                                                                    8


Legislature has amended § 8 eight times since it was enacted in

1983.   See St. 1983, c. 694, § 2; St. 1985, c. 794, § 9; St.

1989, c. 362, § 1; St. 1990, c. 150, § 341A; St. 1991, c. 138,

§§ 209, 210; St. 1994, c. 60, §§ 169-171; St. 1996, c. 151,

§§ 485, 486; St. 2002, c. 184, §§ 125-128; St. 2014, c. 260,

§§ 20-22.

    The defendant's reliance on Commonwealth v. Zawatsky, 41

Mass. App. Ct. 392 (1996), to support his argument that he is

entitled to recoup the victim-witness assessment because the

conviction to which the assessment applied is void is misplaced.

In Zawatsky, supra at 397, 400-401, the Appeals Court set aside

$600 in victim-witness assessments, which were attributed to

specific convictions, where those convictions were vacated as

void because the District Court lacked subject matter

jurisdiction.   The court determined that those assessments could

not stand where the supporting convictions were void.    Id. at

400-401.

    Here, although the defendant's guilty plea was vacated, the

District Court had proper subject matter jurisdiction.    The

defendant's conviction was merely voidable, not void ab initio,

as the defendant suggests.   See Lewis v. Commonwealth, 329 Mass.

445, 448 (1952) (erroneous original sentence merely voidable,

not void, until reversed, where court had proper jurisdiction).

"'A void judgment is one which, from its inception, was a
                                                                     9


complete nullity and without legal effect.' . . .    To be void, a

judgment must issue from a court that 'lacked jurisdiction over

the parties, lacked jurisdiction over the subject matter, or

failed to provide due process of law.'"    McIntire, petitioner,

458 Mass. 257, 264 (2010), cert. denied, 563 U.S. 1012 (2011),

quoting Harris v. Sannella, 400 Mass. 392, 395 (1987).

    Therefore, we conclude that the plain language of § 8 does

not provide a statutory basis for the refund of the victim-

witness assessment to the defendant.   See Chamberlin, 473 Mass.

at 660.

    2.    Probation fees.   The defendant argues that because his

conviction is void, equitable principles and fundamental

fairness require the return of the probation fees.   As discussed

above, the defendant's conviction was not void; the judge merely

vacated the conviction to allow for a new trial, and the

Commonwealth declined to further prosecute the matter.      See

McIntire, petitioner, 458 Mass. at 264; Lewis, 329 Mass. at 448.

The defendant's argument that equity requires the return of his

probation fees is unavailing.

    Significantly, the defendant does not point to, nor did we

find, a statutory basis for the defendant to recoup his

probation fees.   Compare G. L. c. 276, § 87A, with G. L.

c. 258B, § 8.   The statute is silent as to a defendant's

entitlement to the return of probation fees after a conviction
                                                                   10


is vacated.   G. L. c. 276, § 87A.   "We will not 'read into the

statute a provision which the Legislature did not see fit to put

there.'"   Chin, 470 Mass. at 537, quoting Commissioner of

Correction v. Superior Court Dep't of the Trial Court for the

County of Worcester, 446 Mass. 123, 126 (2006).

    We next address the defendant's assertion that the

statutory probation fees he paid were in fact impermissible

financial penalties or fines.   See G. L. c. 280, § 6

(prohibition on costs imposed as penalty for crime).     Section

87A provides, in pertinent part:

         "The court shall assess upon every person placed on
    supervised probation . . . a monthly probation supervision
    fee . . . in the amount of [sixty dollars] per month. Said
    person shall pay said probation fee once each month during
    such time as said person remains on administrative
    supervised probation. . . . The court shall also assess
    upon every person placed on supervised probation . . . a
    monthly probationer's victim services surcharge . . . in
    the amount of [five dollars] per month. Said person shall
    pay said victim services surcharge once each month during
    such time as said person remains on supervised probation."

G. L. c. 276, § 87A.   The statute also provides for the waiver

of probation fees where the court "has determined, after a

hearing and upon written finding, that such payment would

constitute an undue hardship on said person or his [or her]

family due to limited income, employment status[,] or any other

factor."   Id.

    The plain language of the statute specifically refers to

the monthly payments as "fees," rather than fines.     Fees "are
                                                                   11


charged in exchange for a particular governmental service which

benefits the party paying the fee in a manner 'not shared by

other members of society,' . . . and the charges [that] are

collected . . . [are] to compensate the governmental entity

providing the services for its expenses."   Emerson College v.

Boston, 391 Mass. 415, 424-425 (1984).   In contrast, "[a] fine

is a pecuniary imposition by way of punishment upon one who has

been convicted of [a] crime."   Commonwealth v. Hersey, 324 Mass.

196, 206 (1949).

         "[I]t can fairly be said that the intent of § 87A is
    to defray the costs associated with the provision of
    services to probationers, as an alternative to
    imprisonment. The fees are assessed on all persons placed
    on supervised probation, irrespective of the nature or
    severity of their offenses, suggesting a nonpunitive,
    regulatory purpose" (footnote omitted).

Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender

Registry Bd., 459 Mass. 603, 620 (2011) (Doe No. 10800).

    Doe No. 10800 is instructive in addressing the defendant's

argument that the probation fees operate as punitive fines in

his circumstances.   In that case, the plaintiff claimed that a

statutory "increase in his probation fees constitute[d] an

enhancement of his punishment, and, as such, violate[d] the ex

post facto clauses of the Federal and State Constitutions."      Id.

at 617.   In concluding that the statutory increase of probation

fees during the plaintiff's probationary term did not violate

either the Federal or State ex post facto clause, we explained
                                                                     12


that the § 87A probation fees had a regulatory rather than

punitive purpose.    See id. at 619.   "The fees under § 87A are a

component of probation, the primary goals of which are

rehabilitation of a defendant and protection of the public; the

fees themselves suggest more of civil than a criminal

orientation."    Id., citing Commonwealth v. Goodwin, 458 Mass.

11, 15 (2010).     Moreover, we noted that "the language of § 87A

provides that the probation fees may be waived by the court on a

showing that their payment would constitute an undue hardship,

further suggesting that the fees are not intended to be a

criminal penalty."     Doe No. 10800, supra at 619-620.   Based on

the plain language of the statute and legislative intent, we

conclude that § 87A probation fees are nonpunitive regulatory

fees, rather than punitive fines.5

     Conclusion.    For the reasons stated above we conclude that

the plain language of G. L. c. 258B, § 8, does not provide the


     5
       During oral argument, the defendant conceded that the
probation fees were not fines or penalties. Instead, he appears
to argue that he is entitled to recoup the fees assessed during
the eight-month period of his unexcused absence from supervised
probation and that those fees became punitive because he did not
actually receive services during that period. Additionally, the
defendant argues that the fees should be returned to him to
prevent the Commonwealth's unjust enrichment. These arguments
are without merit. We decline the defendant's invitation to
fashion a remedy that would operate to entitle a defendant to
recoup probation fees upon vacation of a conviction, on the
basis of noncompliance with the terms of probation. Such a
remedy goes against the goals of probation and would incentivize
the rejection of rehabilitative services.
                                                                  13


statutory basis for a refund of the victim-witness assessments

for convictions that are vacated after the withdrawal of a

guilty plea.   Similarly, we conclude that G. L. c. 276, § 87A,

does not provide the statutory basis for the return of probation

fees where a defendant's conviction is subsequently vacated.

Therefore, we affirm the District Court judgment.

                                   So ordered.
