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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 victimwitness 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 victimwitness 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 victimwitness 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.