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SJC-12689

COMMONWEALTH vs. JERMAINE WATT.

August 20, 2019.

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

Restitution. Imprisonment, Imposition of fees.

In 2010, Jermaine Watt pleaded guilty to two counts of 

distribution of cocaine. He was sentenced to concurrent State 

prison terms of from three to five years. In addition, he paid

a drug analysis fee of $150, which was imposed pursuant to G. L. 

c. 280, § 6B. He filed a motion for a new trial, seeking to 

withdraw his guilty plea due to the misconduct of Sonja Farak, a 

chemist at the Department of Public Health's State Laboratory 

Institute in Amherst who analyzed the substances seized in his 

case. See generally Committee for Public Counsel Servs. v. 

Attorney Gen., 480 Mass. 700 (2018). That motion was initially 

denied, but ultimately, after the defendant was released at the 

end of his sentence, the indictments were dismissed with 

prejudice on the Commonwealth's motion. The defendant

thereafter filed a motion seeking a refund of fees associated 

with the vacated convictions, namely, the drug analysis fee and 

certain fees incurred on the inmate account he was obligated to 

maintain while he was incarcerated. See G. L. c. 124, § 1 (u); 

103 Code Mass. Regs. § 405.06 (2017).1 A judge in the Superior 

 

1 The statute, G. L. c. 124, § 1 (u), authorizes the 

commissioner of correction to "charge each inmate reasonable 

fees for the maintenance and administration of inmate accounts 

and [to] deduct such fees from each inmate's accounts." The 

regulation, 103 Code Mass. Regs. § 405.06, provides in relevant 

part:
2

Court denied the motion, and the defendant appeals. We allowed 

the Commonwealth's application for direct appellate review.

The Commonwealth concedes on appeal that the drug analysis 

fee should be refunded under the reasoning of our decision in 

Commonwealth v. Martinez, 480 Mass. 777 (2018), a case we 

decided after the judge denied the defendant's motion.2 That is 

 

"(1) All inmate funds in the possession of the Department 

of Correction shall be maintained on the Department of 

Correction's [Inmate Management System] Trust Fund 

Accounting Module. All inmate savings bonds previously 

purchased shall stay in the custody of the institution in 

which the inmate is incarcerated.

"(2) Pursuant to [G. L. c. 124, § 1 (u)], inmates shall be 

assessed reasonable fees for the maintenance and 

administration of inmate accounts. The Commissioner shall 

establish the amount of the fee assessed. Fees shall be 

deducted from inmate personal accounts that meet the 

criteria established in 103 [Code Mass. Regs. §] 

405.06(2)(a) and (b).

"(a) A fee shall be assessed if an account has had activity 

during the month to be charged. Activity shall be defined 

as execution of at least one of the following transactions, 

ML income, VI income, IT income, or EX external 

disbursement.

"(b) A fee shall be assessed for each check for which a 

stop payment request is executed. . . ."

As far as we are able to discern, the terms "ML income," 

"VI income," "IT income," and "EX external disbursement," that 

is, the types of transactions that result in fees, are not 

defined anywhere in the regulations. Moreover, the judge did 

not make any findings as to the meaning of any of these terms or 

as to whether any fees imposed on the defendant's inmate account 

were related to any of these types of transactions. The 

Commonwealth has provided documents in an effort to explain the 

various types of transactions, but these documents, which were 

not before the judge, do not use the abbreviations listed in the 

regulation.

2 The question whether a defendant is entitled to a refund 

of drug analysis fees imposed as a result of a subsequently 

invalidated conviction was not presented in Martinez, and we 
3

an appropriate concession, and, after an independent review of 

the issue, see Commonwealth v. Poirer, 458 Mass. 1014, 1015 

(2010), and cases cited, we agree that the same due process 

principles that underlie our decision in Martinez also require a 

refund of the drug analysis fee. The sole remaining issue

before us, therefore, is whether the account fees should be 

refunded, either by statute or under the due process principles 

set forth in Martinez, supra, and Nelson v. Colorado, 137 S. Ct. 

1249 (2017).3 As we shall explain, neither the statute nor due 

process requires that those fees be refunded.

Facts. In ruling on the defendant's motion, the judge did 

not make findings of fact. We glean the following facts from 

the record before us and from the parties' representations. 

While he was incarcerated, the defendant was required to have an 

inmate account for retention of his funds. See 103 Code Mass. 

Regs. § 405.06(1). Pursuant to G. L. c. 124, § 1 (u), and 103 

Code Mass. Regs. § 405.06(2), a monthly maintenance and 

administration fee of one dollar was assessed on his account in 

each month in which certain types of transactions occurred. The 

Commonwealth represents that such fees are charged when 

correction personnel are needed to process a transaction, such 

as when a visitor brings money to be deposited in an inmate's 

account, but not when a transaction occurs without the need for 

such processing, such as when an inmate earns money from prison 

employment or when an inmate's family member makes a direct 

deposit using the secure deposit system. The defendant does not 

generally dispute this, but represents that on two occasions, a 

fee was incurred when he was transferred from the house of 

correction to the State prison, a circumstance beyond his

control. According to the defendant, the fees totaled thirtytwo dollars over the term of his incarceration.4

Statute. The defendant argues that the account fees must 

be refunded under G. L. c. 278, § 14, which provides:

 

therefore did not address it at that time. Commonwealth v. 

Martinez, 480 Mass. 777, 792 (2018).

3 We do not have before us other fees that might be imposed 

after a conviction, such as parole fees, and we therefore do not 

address them.

4 The Commonwealth states that the total amount was thirtythree dollars. The defendant explains the discrepancy by 

stating that one dollar was charged in error and refunded to 

him.
4

"No prisoner or person under recognizance, acquitted by 

verdict or discharged because no indictment has been found 

against him, or for want of prosecution, shall be liable 

for any costs or fees or for any charge for subsistence 

while he was in custody."

By its terms, the statute applies to three categories of 

people: those who are "acquitted by verdict," those who are 

"discharged because no indictment has been found," and those who 

are "discharged . . . for want of prosecution." Each category 

consists of individuals in pretrial status who are eventually 

released without having been found guilty of any offense. The 

statute does not apply to those who, like the defendant here, 

were convicted of one or more offenses. We specifically reject 

the defendant's assertion that he is in the third category 

("discharged . . . for want of prosecution") merely because the 

indictments were ultimately dismissed on the Commonwealth's 

motion. The Commonwealth did in fact prosecute him, he pleaded 

guilty, and the account fees were incurred while he served his 

term. As the defendant was not in pretrial status when the fees 

were incurred, G. L. c. 278, § 14, does not apply to him.

Due process. The defendant next argues that the account 

fees must be refunded to him under the due process principles 

set forth in the Martinez and Nelson decisions. As we explained 

in Martinez, "the State is obligated under the due process 

clause of the Fourteenth Amendment to refund monies where three 

elements are satisfied: (1) the monies were 'exacted from the 

defendant' upon conviction and as a consequence of the 

conviction; (2) the amounts 'exacted' were actually paid by the 

defendant; and (3) the conviction has been 'invalidated by a 

reviewing court and no retrial will occur.'" Martinez, 480 

Mass. at 784-785, quoting Nelson, 137 S. Ct. at 1252. At issue 

here is the first element, that is, whether the maintenance and 

administration fees for his prison account were "'exacted from 

the defendant' upon conviction and as a consequence of the 

conviction."5 "The overriding principle is that where a 

defendant has been ordered to make a payment because of a 

conviction, the invalidation of that conviction erases the 

State's claim to that payment, and any amount paid must be 

restored to the defendant as a matter of due process" (emphasis 

added). Martinez, supra at 785. We thus determined in Martinez

 

5 The Commonwealth does not dispute the remaining elements 

of Martinez and Nelson, namely, that the defendant actually paid 

the fees, that his conviction has been invalidated by a 

reviewing court, and that no retrial will occur.
5

that probation fees ordered under G. L. c. 276, § 87A, victimwitness assessments ordered under G. L. c. 258B, § 8, and fines 

and surfines paid as part of a sentence must be refunded to the 

extent they were paid solely as a consequence of invalidated 

convictions. Martinez, supra at 785-787, 790. We also 

recognized the ruling of the United States Supreme Court in

Nelson that "[d]ue process requires the refund of restitution 

paid as a consequence of an invalidated conviction," Martinez, 

supra at 787, citing Nelson, supra at 1252, while observing that 

differences between the Colorado law at issue in Nelson and 

Massachusetts law, as well as the difficulties involved in 

obtaining a refund from the victim to whom restitution was paid, 

would raise complex issues. Martinez, supra at 787-790. Not 

all fees imposed on defendants must be refunded, however. For 

example, we rejected a defendant's claim for a refund of money

civilly forfeited pursuant to G. L. c. 94C, § 47, at a plea 

hearing, as forfeiture was a separate civil proceeding outside 

the scope of the criminal matter, and we stated that court costs 

were ordinarily not refundable, as G. L. c. 280, § 6, prohibits 

their imposition as a penalty for a crime. Martinez, supra at 

790-792.

Under the principles set forth in Martinez and Nelson, the 

defendant is not entitled to a refund of the account maintenance 

and administration fees. Unlike probation fees, victim-witness 

assessments, restitution, and fines paid as penalties, the fees 

at issue here were not ordered solely as a consequence of the 

defendant's convictions, but withdrawn from his inmate account 

in connection with certain financial transactions. They cannot

fairly be said to be part of the penalty imposed by the court as 

a punishment for the offenses of which the defendant was 

convicted. Moreover, like monies that are subject to civil 

forfeiture, the fees were imposed by a process outside the scope 

of the criminal proceeding. We conclude that these fees were 

not exacted from the defendant upon conviction and solely as a 

consequence of his convictions. The defendant is therefore not 

entitled to have them refunded.

Conclusion. The order denying the defendant's motion for a 

refund of fees is reversed to the extent that the order denied a 

refund of the drug analysis fee. In all other respects, it is 

affirmed.

So ordered.
6

Rebecca A. Jacobstein, Committee for Public Counsel 

Services, for the defendant.

David L. Sheppard-Brick, Assistant District Attorney, for 

the Commonwealth.