Commonwealth v. Jshawn L. Durham.

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

23-P-11

COMMONWEALTH

vs.

JSHAWN L. DURHAM. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The probationer appeals from the denial of his motion to

terminate and discharge probation by a judge of the District

Court, and an order finding him in violation of his probation

and extending the term of probation for another year. He argues

that he adequately established an inability to pay restitution,

ordered as a condition of probation, due to his poverty.

Concluding that the judge committed an error of law in his

application of Commonwealth v. Henry, 475 Mass. 117, 121-127

(2016), we vacate the denial and order, and remand the matter.

We review a judge's determination that a probation

violation occurred and their disposition of a probation

1In affidavits, the probationer spelled his name "Jshawn
Durham" and "J'Shawn L. Durham." As is our custom, we spell the
probationer's name as it was spelled in the complaints.
violation for abuse of discretion or other error of law. See

Commonwealth v. Pena, 462 Mass. 183, 187 (2012); Commonwealth v.

Grant G., 96 Mass. App. Ct. 721, 725 (2019). The Commonwealth

bears the burden of proving a violation by a preponderance of

the evidence. Commonwealth v. Bukin, 467 Mass. 516, 520 (2014).

"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. The probationer bears the burden of showing an

inability to pay. Id.

At a 2022 probation violation hearing, 2 the probationer

filed a motion to terminate and discharge probation based on his

inability to pay the remaining restitution (Henry motion),

asserting via affidavit and representations of counsel 3 that he

was unable to pay. The District Court judge denied the motion,

stating that Henry motions are for "people who are physically or

mentally disabled who have no capacity to work, not that they

lost their job during COVID." This reads Henry too narrowly.

2 The probationer pleaded guilty and was sentenced in 2014,
before Henry issued. The probationer's initial eighteen-month
probation term has been repeatedly extended for failure to pay
restitution.

3 See Commonwealth v. Pereira, 93 Mass. App. Ct. 146, 151
(2018) ("Assertions of . . . counsel are not evidence").

2
In fact, to ensure equal justice, the Supreme Judicial Court

determined that a "criminal defendant should not face additional

punishment solely because of [their] poverty." Henry, 475 Mass.

at 122. Accordingly, "[i]n 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 [their] dependents." Id. at 126. Payment

of restitution must not impose a "substantial financial

hardship" on the defendant, such as "payments that would deprive

the defendant or [their] dependents of minimum basic human

needs." Id. at 127. While "[a] judge may also consider a

defendant's ability to earn based on 'the defendant's employment

history and financial prospects,' . . . a judge may attribute

potential income to the defendant only after specifically

finding that the defendant is earning less than [they] could

through reasonable effort" (citation omitted). Id.

Because the motion judge expressly applied an incorrect

rationale in denying the probationer's motion, he abused his

discretion. See, e.g., Commonwealth v. Brusgulis, 398 Mass.

325, 330 (1986) (decision of motion judge may be vacated where

judge applied incorrect legal standard). Further, while "the

defendant bore the burden of persuasion, . . . the judge's

3
findings were inadequate to support the conclusion that the

defendant had an ability to pay restitution." Commonwealth v.

Vallejo, 480 Mass. 1001, 1002 (2018). Accordingly, the judge

also abused his discretion for using the lack of payment as the

basis of the probation violation and subsequently extending the

probationer's probation. We must therefore remand for findings

in accordance with Henry. 4 Should the reviewing judge, applying

the correct standard, conclude that the probationer has the

ability to pay based on an ability to find work, the judge must

articulate the grounds on which the judge is attributing income

to the probationer, after considering his "employment history

and financial prospects" and any other relevant circumstances.

Henry, 475 Mass. at 127.

The order denying the probationer's motion to terminate

probation and the order finding the probationer in violation of

probation and extending his probation for another year on the

4 Generalized and uncorroborated assertions by the
probationer about their financial situation are not adequate.
Compare Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 46-
51 (2018) (defendant carried burden where she testified,
provided revised detailed affidavit, and produced supporting
documents in form of proof of Social Security benefits and a
lease), with Pereira, 93 Mass. App. Ct. at 151-152 (where
defendant had previously agreed to payment schedule and failed
to present any evidence in support of Henry motion, even
affidavit, judge did not err in finding violation based on
failure to pay).

4
same payment terms are vacated, and the matter is remanded for

further proceedings consistent with this memorandum and order.

So ordered.

By the Court (Green, C.J.,
Henry & Ditkoff, JJ. 5),

Assistant Clerk

Entered: April 22, 2024.

5 The panelists are listed in order of seniority.

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