Commonwealth v. Gary E. Michaels.

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

22-P-708

COMMONWEALTH

vs.

GARY E. MICHAELS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a finding that he violated his

probation by failing to make required restitution payments, and

from the five-year extension of probation and increased

restitution payments the judge imposed as a remedy for the

violation. The Commonwealth acknowledges that the judge erred

in extending the defendant's probation and increasing the

restitution payments. We vacate and remand.

On November 21, 2016, the defendant pleaded guilty to

larceny over $250 and to making a false statement for medical

assistance. He was sentenced to probation with an end date of

April 8, 2022, and was ordered to perform community service and

pay restitution in an amount to be determined in the future. On

April 10, 2017, restitution was set in the amount of $46,460.81.

However, after a Henry hearing, see Commonwealth v. Henry, 475
Mass. 117 (2016), the plea judge determined that the defendant

did not have the ability to pay. The judge also ordered that

the defendant's ability to pay be reviewed every six months.

Almost two years later, on March 27, 2019, the defendant

was determined to have the ability to make monthly payments of

$300 towards restitution. The defendant made payments for some

time thereafter. 1 Eventually, though, on August 4, 2021, the

defendant was served with a notice of probation violation

alleging that he had violated his probation by failing to make

the monthly restitution payments and was $3,000 in arrears.

After an evidentiary hearing, a different judge found that the

defendant had violated his probation by failing to make the

required payments. As a remedy, the judge extended the

defendant's probation by five years and increased to $643.66 the

monthly amount to be paid so that the full remaining amount of

restitution could be paid within those five years. These are

the rulings that are before us now.

The defendant makes three arguments on appeal. First, the

defendant argues that the judge failed to consider the totality

of his expenses in determining whether he had the ability to pay

restitution. Second, the defendant argues the judge was

incorrect to think that the full amount of restitution needed to

1 Ultimately, the defendant made payments totaling $7,860.81.

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be repaid before probation could end and, third, that that error

led to an unwarranted five-year extension of probation and to an

increase in the monthly restitution payment without regard to

the defendant's ability to pay. We agree.

The evidence showed that the defendant, who had his own

business, had been making the required $300 monthly restitution

payments until the COVID-19 pandemic caused his business to

close. Eventually, he secured a new job and was able to make

additional payments towards restitution. 2 Nonetheless, by the

time of the probation violation hearing in March 2022, the

defendant was in arrears by "about $4,500." The defendant does

not dispute that he failed to make restitution payments;

however, he argues that the judge could not find that he had

willfully violated the terms of his probation because the

evidence did not permit the judge to find that he had the

ability to pay. "A defendant can be found in violation of a

probationary condition only where the violation was [willful],

and the failure to make a restitution payment that the

probationer is unable to pay is not a [willful] violation of

probation." Henry, 475 Mass. at 121.

2 During this time period, the defendant also paid $3,000 to
satisfy a restitution order in a separate case. In light of the
defendant's financial statement, we reject the Commonwealth's
suggestion that the defendant's satisfaction of a separate
restitution order should be used to demonstrate that he had the
ability to pay restitution in this case.

3
Although the evidence permitted the judge to find that the

defendant had obtained a new job that paid him $4,200 (pretax)

monthly, the judge's finding that the defendant's monthly

expenses were only $2,000 was clearly erroneous. The

defendant's financial statement -- which was

undisputed -- showed that he had monthly expenses of $4,061, of

which $2,000 was for rent. The judge did not explore these

expenses with the defendant, nor was any evidence presented that

would call their accuracy into question. 3 "In determining the

defendant's ability to pay, the judge must consider 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 his or her

dependents." Henry, 475 Mass. at 126. Here, the judge

considered only the defendant's monthly rent, rather than the

totality of the defendant's necessary expenses (which would

3 Additional information regarding the defendant's financial
circumstances was contained in his motion to remit outstanding
restitution, which he filed after having been served with the
notice of violation. More specifically, the defendant alleged
that he has a wife and two children whom he supports. His wife
does not work due to health and childcare issues. The defendant
receives food stamps and is on Medicaid, and he was in arrears
on his bills for electricity, gas, water, Internet, and cell
phones. In addition, the defendant had monthly car payments,
car insurance obligations, $4,000 in credit card debt, and
$7,500 in student loan debt.

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necessarily include more than just rent), and appears to have

compared it to his gross (not net) monthly pay. 4 Although the

evidence permitted the judge to find that the defendant had not

paid the required monthly restitution amount of $300 for some

period of time, the evidence did not permit the judge to find

that he had the ability to pay $300 monthly during that period

"'without causing substantial financial hardship' to [him]self

or [his] dependents." Commonwealth v. Bruno-O'Leary, 94 Mass.

App. Ct. 44, 50 (2018), quoting Henry, supra at 127.

Furthermore, the judge's decision to extend the period of

probation by five years and to increase the monthly payment

amount ran afoul of Henry, 475 Mass. at 124-125. The judge's

decision appears to have been based on a misapprehension that

probation should be extended for the sole purpose of ensuring

that the full amount of restitution can be repaid during the

extended period. 5 But "equal justice means that the length of

probation supervision imposed at the time of sentence should not

be affected by the financial means of the defendant or the

4 The judge stated that the defendant's "annual expenses are
$24,000." Although the judge acknowledged that the defendant
also had some outstanding loan payments, he seems to have
disregarded all other expenses listed on the defendant's
financial statement without any basis in the record to do so.

5 We note that the probation officer suggested a lesser remedy of
a two-year extension of probation with no increase in the
monthly restitution amount of $300.

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ability of the defendant to pay restitution." Id. at 124. It

does not appear that the judge considered, as he was required

to, the defendant's ability to make restitution payments in the

future, let alone at an increased monthly amount. Nor did the

evidence permit the judge to find that the defendant had the

ability to pay the increased monthly amount ($643.66) ordered.

For these reasons, the order entered March 2, 2022, finding

the defendant in violation of the terms of probation and

imposing sentence, is vacated. The case is remanded for

reconsideration. On remand, the defendant's ability to pay must

be factored into both the judge's assessment of whether the

defendant violated probation as alleged in the probation

violation notice and, if so, the appropriate remedy for that

violation. See Commonwealth v. Vallejo, 480 Mass. 1001, 1002

(2018).

So ordered.

By the Court (Wolohojian,
Shin & Ditkoff, JJ. 6),

Clerk

Entered: October 19, 2023.

6 The panelists are listed in order of seniority.

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