Commonwealth v. Linda Marie Medeiros.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-843

COMMONWEALTH

vs.

LINDA MARIE MEDEIROS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2016, the defendant pleaded guilty in Superior Court to

six counts of larceny over $250 from a person over sixty years

of age. As a result, she was sentenced on count one to serve

not less than three years and not more than four years in State

prison. On the remaining five counts, the defendant was

sentenced to ten years of probation to run consecutive to her

term of incarceration. As a condition of her probation, the

defendant was ordered to pay restitution in the amount of

$1,416,803.10.

In 2019, following her release from prison, a Superior

Court judge held a hearing pursuant to Commonwealth v. Henry,

475 Mass. 117 (2016), regarding the restitution component of the
defendant's probation. After that hearing, and by agreement,

the defendant was ordered to pay $400 per month.

In 2023, the defendant, having made payments totalling

approximately $24,000, moved to vacate the restitution order and

to terminate her probation. After a hearing before a different

Superior Court judge (motion judge), the defendant's probation

was terminated immediately, and the motion judge dismissed all

the remaining owed restitution, which totaled $1,392,345. After

a motion for reconsideration was denied, the Commonwealth

appealed. We reverse.

We review a decision to modify or terminate probation for

an abuse of discretion or other error of law. See, e.g.,

Commonwealth v. Eldred, 480 Mass. 90, 102-103 (2018);

Commonwealth v. Buckley, 90 Mass. App. Ct. 177, 180 (2016).

Here, the defendant's motion to vacate the restitution order and

to terminate probation was based on a claimed violation of

Henry, 475 Mass. at 122. The defendant claimed that the

"probationary period far exceeds the best practice of the

Superior Court and creates an extreme hardship."

The initial problem with the defendant's argument is that

the Supreme Judicial Court decided Henry approximately two

months after the defendant was sentenced and ordered to pay

restitution as a condition of her probation. As Henry announces

2
a common-law rule, and not one of constitutional dimension,1 the

Supreme Judicial Court could have indicated in Henry that the

new rule applies retroactively, but it was silent on the matter.

As this is not a direct appeal, but a collateral one, and a

matter of common law, the rule need not be applied

retroactively. See Commonwealth v. Dagley, 442 Mass. 713, 721

n.10 (2004), cert. denied, 544 U.S. 930 (2005). We will not

read in such an application in the face of the Supreme Judicial

Court's silence. Moreover, we will not apply Henry

retroactively where the defendant not only did not object to the

amount or term of the restitution order, but she actually agreed

to make the $400 per month payments for ten years. See

Commonwealth v. Clemente, 452 Mass. 295, 305 (2008).2

1 The defendant would fare no better if the new rule
announced in Henry was of constitutional dimension. New rules
of constitutional law may not be applied retroactively to cases
on collateral review. See Teague v. Lane, 489 U.S. 288, 311-313
(1989); Commonwealth v. Bray, 407 Mass. 296, 300 (1990). There
are two narrow exceptions to that rule: when the new rule is
one that (1) places "certain kinds of primary, private
individual conduct beyond the power of the criminal law-making
authority to proscribe" or (2) is "implicit in the concept of
ordered liberty," implicating "fundamental fairness," and is
"central to an accurate determination of innocence or guilt,"
such that its absence "creates an impermissibly large risk that
the innocent will be convicted" (quotations and citations
omitted). Teague, supra. See Bray, supra; Commonwealth v.
Peppicelli, 70 Mass. App. Ct. 87, 99 (2007). Neither of these
exceptions apply to the rule announced in Henry.

2 The defendant also claims that her ten-year probationary
term is contrary to the guidelines for "Criminal Sentencing in

3
Notwithstanding the above, even if Henry did apply to this

defendant, when she was released from incarceration, a Superior

Court judge held a hearing to assess the defendant's ability to

pay. Also, the defendant's term of probation was not extended

based on the defendant's inability to ever pay back the enormous

amount of money she stole. See Henry, 475 Mass. at 125. In

fact, the $400 payment per month for ten years would amount to a

total of $48,000, or less than four percent of the actual amount

stolen. The motion judge erred as a matter of law by concluding

that he was required to terminate probation because the

probation order "predate[d] Henry."

As indicated in his denial of the Commonwealth's motion to

reconsider, a second basis for the motion judge's allowance of

the motion to terminate the defendant's probation was as an

exercise of his discretion. See, e.g., Eldred, 480 Mass. at

the Superior Court: Best Practices for Individualized Evidence-
Based Sentencing (October 2019)." To the extent these
guidelines should have retroactively bound the sentencing judge,
the motion judge did not base his decision on them. Also, the
defendant relies on principle no. 9, which states that
"[P]robationary terms should be no longer than three years,
except where the nature of the offense or other circumstances
specifically warrant a longer term." A strong argument could be
made that this case meets that exception. In any event, the
defendant has failed to cite any authority that holds that the
sentencing judge –- or this court –- was bound by the
guidelines, or that any deviation from them constitutes an abuse
of discretion. In this light, we treat the claim as waived.
See Mass. R. A. P. 16 (a) (9) (a), as appearing in 481 Mass.
1628 (2019).

4
102-103; Commonwealth v. Goodwin, 458 Mass. 11, 16-17 (2010).

When conditions amount to a material change in circumstances, a

judge may modify the conditions of probation in order "to serve

'the ends of justice and the best interests of both the public

and the defendant.'" Buckley v. Quincy Div. of the Dist. Court

Dep't, 395 Mass. 815, 817 (1985), quoting Burns v. United

States, 287 U.S. 216, 221 (1932). This may include eliminating

conditions or terminating probation. See Goodwin, supra at 18.

Although the motion judge stated he was exercising his

discretion, he did not indicate which facts or claims were

driving that decision. Aside from the Henry claim discussed

above, the only other reasons underlying the defendant's request

to terminate her probation and the restitution order were argued

before the motion judge.

At the motion hearing, the defendant never claimed that she

was unable to pay the $400 a month. Rather, she claimed her

probation was causing her anxiety because she wanted to travel

to Italy to plan and attend her daughter's wedding. However, as

the probation officer mentioned at the hearing, the defendant

only needed a court order to travel internationally, as she had

successfully done in the past when she traveled to the Bahamas.

The remaining reason offered by defense counsel was that

she "was bother[ed]" by the fact that although the defendant

5
stole "a lot of money," she stole it "from a very wealthy

individual." Counsel decried the lack of parity in punishment

for this defendant as compared to a hypothetical defendant who

stole a lesser amount of money from a victim of a lower economic

status, who counsel suggested would have been given a house of

correction sentence.

In the end, neither of these additional reasons justified

the termination of the defendant's probation and restitution. A

simple court order permitting international travel fell within

the range of reasonable alternatives. Terminating probation for

even an otherwise successful probationer, who established no

financial hardship, who agreed to the length of the probation

term and the amount to be paid, which constituted a mere four

percent of the amount she stole, was not. See L.L. v

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

We further add that the Legislature in enacting our larceny

statute did not create a punishment scheme that turned on an

imagined financial caste system for crime victims or an economic

theory based on Robin Hood. In fact, the remedy of restitution

is available regardless of the victim's economic status.

Indeed, "the purpose of restitution [is] . . . 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

6
damage [which] he or she caused as a punitive and rehabilitative

sanction." Commonwealth v. Malick, 86 Mass. App. Ct. 174, 181

(2014), quoting Commonwealth v. Williams, 57 Mass. App. Ct. 917,

918 (2003). The motion judge's order terminating probation and

restitution constituted an abuse of discretion.3

The orders terminating probation, deeming restitution

satisfied, and dismissing monies owed are reversed. The matter

is remanded to the Superior Court for the entry of an order

reimposing the remainder of the defendant's probation term and

conditions, including the condition that she pay $400 per month

in restitution until the ten-year term expires.

So ordered.

By the Court (Meade, Walsh &
Hodgens, JJ.4),

Clerk

Entered: October 1, 2025.

3 Lastly, we note that the probation department received
short notice of the hearing on the defendant's request to
terminate her probation. As a result, the probation department
was unable to contact the victim or her family before the
hearing was conducted. Conducting the hearing without notice to
the victim was contrary to the victims' bill of rights. See
G. L. c. 258B, § 3 (o) ("If the offender seeks to modify the
restitution order, the offender's supervising probation officer
shall provide notice to the victim[,] and the victim shall have
the right to be heard at any hearing relative to the proposed
modification").

4 The panelists are listed in order of seniority.

7