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15-P-734 Appeals Court

COMMONWEALTH vs. THOMAS E. BUCKLEY, THIRD.

No. 15-P-734.

Berkshire. June 1, 2016. - September 8, 2016.

Present: Katzmann, Meade, & Agnes, JJ.

Restitution. Practice, Criminal, Restitution, Findings by 

judge. Larceny. Motor Vehicle, Theft. Negligence, 

Economic loss, Causation, Proximate cause, Intentional 

conduct. Proximate Cause. Intentional Conduct.

Complaint received and sworn to in the Pittsfield Division 

of the District Court Department on July 15, 2014. 

A proceeding to determine restitution was had before

William A. Rota, J.

Matthew J. Koes for the defendant.

Megan L. Rose, Assistant District Attorney, for the 

Commonwealth.

AGNES, J. Victims of crime have the right to request that 

the sentence in a criminal case include an order that the 

defendant pay restitution to make up for the economic loss they 
2

suffered as a result of the defendant's criminal conduct.1 

"[T]he scope of restitution is limited to 'loss or damage [that] 

is causally connected to the offense and bears a significant 

relationship to the offense.'"2 Commonwealth v. McIntyre, 436 

 

1 "[T]he 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 

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

sanction." Commonwealth v. Williams, 57 Mass. App. Ct. 917, 918 

(2003). In Commonwealth v. Denehy, 466 Mass. 723, 737 (2014)

(quotations omitted), the Supreme Judicial Court explained that 

a judge's power to order restitution is "unquestionable" and not 

limited by statute, and that judges have "significant latitude" 

in imposing restitution. In some cases, including cases such as 

this involving the offense of larceny of a motor vehicle, the 

Legislature has required that courts conduct a restitution 

hearing and, if appropriate, order restitution. See G. L. 

c. 266, § 29; G. L. c. 276, § 92A.

2 A victim's economic loss may include items such as 

"medical expenses, court-related travel expenses, property loss 

and damage, lost pay, or even lost paid vacation days required 

to be used to attend court proceedings." Commonwealth v. 

Rotonda, 434 Mass. 211, 221 (2001). See Commonwealth v. 

Hastings, 53 Mass. App. Ct. 41, 43 (2001) (equating "economic 

loss" with financial loss that includes lost earnings, out-ofpocket expenses, and replacement costs, but not pain and 

suffering). Likewise, under Federal law, the losses that are 

included in the scope of restitution include the following: 

certain medical services, physical and occupational therapy, 

transportation, temporary housing, child care, lost income, 

attorney's fees and costs, and a final catchall category for 

"any other losses suffered by the victim as a proximate result 

of the offense." 18 U.S.C. § 2259(b)(3)(A)-(F) (2012). See 

Paroline v. United States, 134 S. Ct. 1710 (2014).

"[A] judge has the authority to conduct restitution 

hearings and, in so doing, make factual determinations relevant 

to the restitution award[; however,] . . .the proper procedural 

mechanisms [must be] employed." Commonwealth v. Denehy, 466 

Mass. 723, 738 (2014). See Commonwealth v. Casanova, 65 Mass. 

App. Ct. 750, 755-756 (2006) ("We discern no requirement that 
3

Mass. 829, 835 (2002), quoting from Glaubius v. State, 688 

So. 2d 913, 915 (Fla. 1997).

In the present case, the defendant, Thomas E. Buckley, III, 

pleaded guilty to one count of larceny of a motor vehicle in 

violation of G. L. c. 266, § 28(a). After a hearing, the judge 

ordered the defendant to pay restitution in the amount of $3,000 

for the loss of the victim's vehicle. On appeal, the defendant

raises two issues relating to the restitution order: (1) 

whether intervening acts of negligence by third parties 

following the commission of the crime broke the causal chain and

should relieve the defendant of the obligation to pay 

restitution; and (2) whether an agreement between the parties as 

to the approximate amount of economic loss is a sufficient basis 

upon which the judge may make an order of restitution. We 

answer the first question "no," and the second question "yes." 

Accordingly, we affirm.

 

strict evidentiary rules apply at restitution hearings. A 

restitution hearing is not part of a criminal prosecution to 

which the full panoply of constitutional protections applicable 

at a criminal trial need be provided, but principles of due 

process govern"). See also Mass. G. Evid. § 1114(b) (2016)

(describing procedural requirements). The Commonwealth has the 

burden of proving the victim's economic losses by a 

preponderance of the evidence. Commonwealth v. Nawn, 394 Mass. 

1, 7-8 (1985). Crime victims are entitled to assistance from 

the prosecutor in obtaining documentation of their losses. 

G. L. c. 258B. § 3(o). "A restitution order must be based on 

evidence presented to the court unless the parties enter into a 

stipulation." Mass. G. Evid., supra.
4

Background. The essential facts are not in dispute. On 

July 14, 2014, the defendant was in the parking lot of a grocery 

store when he took possession of the victim's vehicle. The 

defendant claimed that someone had paid him to move a vehicle to 

an automobile wrecker, and he had mistakenly taken the 

defendant's vehicle. The defendant drove the vehicle first to 

an automobile wrecker and then to a liquor store parking lot, 

where it was eventually recovered. After he was seen on a 

surveillance video, the defendant was arrested. He immediately 

told the police where to find the vehicle.

Although the vehicle was located within one or two days of 

its theft, due to some misinformation or a misunderstanding 

regarding the victim's contact information, the victim was not 

immediately notified that his vehicle had been recovered.3 

Because of the miscommunication, it was several months later, 

when the victim appeared for trial, that he discovered that the 

police had recovered his vehicle. In the interim, the victim 

had purchased a replacement vehicle.

 

3 When the police attempted to contact the victim to inform 

him of the vehicle's recovery, they reached a person thought to 

be the victim's son, and that person allegedly informed them 

that his vehicle was not missing. The victim told the court 

that the person contacted by the police may not, in fact, have 

been his son, because his son had not been so notified. In any 

event, the parties agree that the victim himself was not aware 

that his vehicle had been located until the day of trial.
5

During the several months prior to trial, the victim's 

vehicle had been stored at an auto-body shop and had accumulated 

roughly $3,036 in storage, mileage, and towing fees. Because 

the victim was unable to pay the fees, he ultimately transferred

ownership of the vehicle to the shop.

After the defendant pleaded guilty, he was sentenced to six 

months' probation and was ordered to pay various fines and 

restitution. At the restitution hearing, the judge inquired as 

to the "book value" of the stolen vehicle, a 1993 Honda Accord. 

The Commonwealth responded, "Your Honor, I believe we made an 

approximation last time that it was . . . a little under . . .

what the storage fees were, but we don't have a full book 

value."4 Defense counsel stated, "there's no dispute as to that" 

and the issue was simply a "question of what [the defendant] 

would be capable of paying." The Commonwealth requested $3,036 

in restitution, the amount of the fees incurred.

The defendant argued principally that the Commonwealth had 

not met its burden to prove that the defendant's conduct was 

causally related to the victim's economic loss. In particular, 

he argued that the intervening negligence on the part of the 

 

4 The Commonwealth and the victim referred to the "last 

time" the matter was in court. Defense counsel also reported, 

"essentially we presented all of this to [a different judge]." 

However, no transcript of any prior proceeding was provided to 

this court. See note 10, infra.
6

police department, not the defendant's crime, was the proximate 

cause of the victim's loss because the defendant immediately 

disclosed the vehicle's location to the police and the 

intervening negligence was not foreseeable.

The judge ordered the defendant to pay $3,000 in 

restitution. In a written memorandum, the judge noted that "the 

authorities could have done a better job in reuniting the victim 

with his car in a timely fashion," but ultimately concluded that 

"BUT FOR the defendant's criminal action, the victim would not 

have incurred any loss." He emphasized that the victim was not 

culpable in any way for the loss. The judge noted that "the 

parties agreed that the 'book value' of the vehicle was 

approximately $3,000," and he used that amount to set the 

restitution order.

Discussion. We review orders of restitution for abuse of 

discretion or error of law. Commonwealth v. McIntyre, 436 Mass. 

at 836.5

 

5 In McIntyre, the court reasoned that even though the 

defendant was convicted of assault and battery by means of a 

dangerous weapon, not a crime based on property damage, the 

victim was entitled to restitution for the damage to his 

automobile because "[t]here [was] no question that the damage to 

the victim's car occurred during the course of an ongoing 

assault." Commonwealth v. McIntyre, supra at 835-836 (noting 

that when the victim fled to his car to escape an ongoing 

assault, the defendant kicked the car's door and fender).
7

1. The Commonwealth met its burden to prove that the 

defendant caused the victim's economic loss. In McIntyre, the 

Supreme Judicial Court adopted the test for causation in 

restitution cases enunciated by the Florida Supreme Court in 

Glaubius: "the scope of restitution is limited to 'loss or 

damage [that] is causally connected to the offense and bears a 

significant relationship to the offense.'"

6 Commonwealth v.

McIntyre, supra at 835, quoting from Glaubius v. State, 688 So. 

2d at 915. Although our appellate courts have not had occasion 

to explain this standard since the decision in McIntyre, the 

Florida Supreme Court did revisit the issue in Schuette v. 

State, 822 So. 2d 1275 (Fla. 2002). In Schuette, supra at 1283, 

the court held that the criminal offense of driving with a 

suspended license was not, by itself, the cause in fact of the 

damage that resulted when the defendant's vehicle collided with 

the victim's vehicle, and thus an order of restitution against 

the defendant could not be entered because there was no evidence 

connecting his criminal conduct to the victim's economic loss.

The court explained that the requirement of a "significant 

relationship" between the defendant's criminal conduct and the 

 

6 In McIntyre, the court added that "we look to the 

underlying facts of the charged offense, not the name of the 

crime [of which the defendant was convicted, or] to which the 

defendant entered a plea." Commonwealth v. McIntyre, supra at 

835 (quotation omitted).
8

victim's economic loss is another way of describing the 

traditional requirement of proximate cause. Id. at 1282. See 

Paroline v. United States, 134 S. Ct. 1710, 1719 (2014) ("[T]o 

say that one event was a proximate cause of another means that 

it was not just any cause, but one with a sufficient connection 

to the result"). With the benefit of this additional guidance, 

we regard the test for causation in restitution cases formulated 

in McIntyre to require that the Commonwealth establish by a 

preponderance of the evidence that the defendant's criminal 

conduct was the cause in fact of the economic injury suffered by 

the victim, and that the victim's losses were a reasonably 

foreseeable consequence of the defendant's conduct.

Here, the judge found on the uncontroverted facts that the 

defendant stole the victim's vehicle and that the defendant's 

conduct was therefore the factual cause of the economic loss 

suffered by the victim, in the sense that the defendant set in 

motion a chain of events that resulted in the loss of the 

victim's vehicle. The same finding also satisfies the 

requirement of reasonable foreseeability, because when the 

property of another is stolen, it is certainly foreseeable that 

the victim may not recover it.7

 

7 A requirement that the defendant's criminal conduct be the 

cause in fact of the victim's economic harm and that such harm 

was a reasonably foreseeable consequence of the defendant's 

conduct is consistent with the causation test applied under 18 
9

The defendant urges us to recognize a limitation on the 

scope of restitution that would bar recovery in cases, such as 

this one, in which the negligent acts of persons who intervene 

or become involved in the case after the defendant's criminal 

conduct break the causal connection between the defendant's 

criminal conduct and the victim's economic loss. In particular, 

the defendant argues that, apart from and subsequent to his 

conduct in stealing the victim's vehicle, the victim's economic 

loss was caused by the failure of the victim and others to 

comply with three requirements imposed by G. L. c. 266, § 29:

8

 

U.S.C. § 2259(b)(3)(A)-(F) (2012). See Paroline v. United 

States, supra at 1719-1722.

8 General Laws c. 266, § 29, inserted by St. 1980, c. 463, 

§ 4, provides in relevant part as follows:

"Whenever a motor vehicle is stolen or 

misappropriated, the owner of record shall sign and submit 

to the appropriate police authority a statement under the 

penalties of perjury on a form containing such information 

relating to the theft or misappropriation of the vehicle as 

is prescribed by the registrar of motor vehicles.

"Whenever a stolen or misappropriated motor vehicle is 

recovered by a police officer or other law enforcement 

officer, the police department shall notify the registry of 

motor vehicles, the owner of record and the storage 

facility if any, as soon as possible after the identity of 

the owner is determined. Such notification may be made by 

letter, telephone call or personal visit to the owner and 

shall include information as to the location of the 

recovered vehicle. In the event the vehicle is placed in a 

garage or other storage facility, the owner of said 

facility shall lose his lien for the reasonable charges for 

storage and towing unless he notifies the owner of record 

of the vehicle by certified mail and return receipt 
10

first, the failure of the police to notify the victim that his 

vehicle had been recovered; second, the failure of the auto-body 

shop to notify the victim, as the owner of record, in writing 

that it was storing the victim's vehicle and the amount of the 

storage fees; and third, the victim's failure, as the owner of 

record, to notify the police in writing that his vehicle had 

been stolen.

Even if we assume, without deciding, that each of these 

omissions represents an act of negligence that occurred 

subsequent to the defendant's criminal conduct and that each 

omission contributed to the victim's economic loss, the 

defendant's argument fails. The defendant has not offered any 

authority for the view that negligent acts of the victim or 

third parties that occur after the defendant's criminal conduct 

break the causal connection that otherwise would support an 

order of restitution. The only case cited by the defendant, 

Commonwealth v. Carlson, 447 Mass. 79 (2006), is inapposite. 

There, the defendant was prosecuted for motor vehicle homicide 

by negligent operation in violation of G. L. c. 90, § 24G(b). 

Id. at 79-80. The victim, who suffered severe chest and lung 

 

requested within five days of the date of said recovery or 

his actual knowledge of the identity of the owner of 

record. Said notice shall contain the information on the 

location of the vehicle and the amount of charge due on 

said vehicle."
11

injuries as a result of the defendant's negligent and criminal 

conduct, died four days after the accident of respiratory 

failure as a result of her voluntary and entirely lawful 

decision to forego intubation and respiratory support by means 

of a ventilator. See id. at 80-82. There was competent medical 

evidence that the victim would have survived if she had 

submitted to mechanical ventilatory support and might have 

returned to the condition that she was in before the defendant's 

criminal conduct. Id. at 82. In rejecting the defendant's 

argument that the Commonwealth had failed to prove that she 

caused the death of the victim, the court explained that "[t]he 

general rule is that intervening conduct of a third party will 

relieve a defendant of culpability for antecedent negligence

only if such an intervening response was not reasonably 

foreseeable." Id. at 84 (emphasis supplied). Here, by 

contrast, the defendant's criminal conduct was based on an 

intentional act. Additionally, adding qualifications to the 

test for causation outlined in McIntyre, like those advocated by 

the defendant, would be contrary to that court's expressed 

preference for a "less formulaic" approach to causation in 

restitution cases. Commonwealth v. McIntyre, 436 Mass. at 835.

The result we reach is consistent with a principle at the 

core of the modern law of torts, namely, that the scope of 

liability of actors who engage in intentional wrongdoing is 
12

broader than is the scope of liability of actors who are merely 

negligent. See Restatement (Third) of Torts § 33(b) (2010) ("An 

actor who intentionally or recklessly causes harm is subject to 

liability for a broader range of harms than the harms for which 

that actor would be liable if only acting negligently"). See 

also id. at § 34 ("When a force of nature or an independent act 

is also a factual cause of harm, an actor's liability is limited 

to those harms that result from the risks that made the actor's 

conduct tortious").

9 While proof of causation is a question of 

fact and each case must be decided on the basis of its 

underlying facts, see Commonwealth v. McIntyre, supra at 834-

835, acts of ordinary negligence committed by third parties --

 

9 The defendant's reliance on State v. Childers, 979 So. 2d 

412 (Fla. Dist. Ct. App. 2008), is misplaced because there the 

victim did not suffer any economic harm based on the defendant's 

crimes; "[r]ather, . . . the [victim's] loss was attributable to 

[its] poor business judgment." Id. at 414. Likewise, the 

defendant's reliance on United States v. Tyler, 767 F.2d 1350 

(9th Cir. 1985), is unavailing. In Tyler, the court applied a 

different test for causation than the test approved in McIntyre. 

See id. at 1351 ("Restitution is proper only for losses directly 

resulting from defendant's offense"). Moreover, in Tyler, the 

court reasoned that restitution in the amount of the decrease in 

the value of the stolen property -- which occurred between the 

date of its theft and the date that the victim sold the property 

-- was improper because the property was returned to the victim 

on the date of its theft and "[a]ny reduction in its value 

stem[med] from the [victim's] decision to hold the [property] 

during a period of declining prices, not from [the defendant's] 

criminal acts." Id. at 1352. As indicated above, in the 

present case, the victim was not aware that his vehicle had been 

recovered until he came to court for trial several months after 

the theft.
13

such as the police and the auto-body shop owner in this case --

or the victim, resulting in a delay in returning stolen property 

to the victim, generally will be regarded as foreseeable results 

of intentional criminal conduct and not significant enough to 

break the causal chain of events leading from the defendant's 

criminal activity to the victim's economic loss. See State v. 

McBride, 940 P.2d 539, 542-544 (Utah Ct. App. 1997). Here, as 

in McIntyre, supra, there was a significant causal relationship 

between the defendant's criminal conduct and the victim's 

economic loss.

2. There was sufficient evidence to support the 

restitution order. "Restitution may be ordered only for those 

economic losses adequately documented by the victim and 

established by the Commonwealth." Commonwealth v. Denehy, 466 

Mass. 723, 741 (2014). "[T]he amount of restitution may not 

exceed the victim's actual loss." Commonwealth v. Henry, 475 

Mass. 117, 129 (2016). There must be a sound basis in the 

evidence for the calculation of a restitution award. See

Commonwealth v. Denehy, supra at 740-741. The method by which 

the amount of the restitution is calculated must be fair and not 

arbitrary. Ibid. The defendant contends that the amount of 

restitution ordered in this case was arbitrarily calculated 

because it was not based on adequately documented economic 

losses suffered by the victim. In particular, the defendant 
14

disputes the basis for the judge's finding that the parties had 

agreed to the amount of $3,000 as fairly representing the "book 

value" of the vehicle.

The record before us indicates that at the restitution 

hearing, the Commonwealth argued that the amount of restitution 

should be the total amount of the storage, mileage, and towing

fees, which was $3,036. The defendant argued that no award of 

restitution should be made due to the intervening acts of 

negligence. The judge inquired about the book value of the 

vehicle and the Commonwealth stated, "Your Honor, I believe we 

made an approximation last time that it was . . . a little under 

. . . what the storage fees were, but we don't have a full book 

value."10 Defendant's counsel did not object to this statement 

by the Commonwealth. Defense counsel also declined the judge's

invitation to cross-examine the victim. See Commonwealth v. 

Casserly, 23 Mass. App. Ct. 947, 947 (1986) (upholding 

restitution award as the defendant did not request a hearing on 

restitution and the judge heard testimony about the value of the 

vehicle during trial, fixed an amount that seemed reasonable 

 

10 In its brief, the Commonwealth points out that there was 

a restitution hearing in December, 2014, "where the approximate 

book value of the vehicle was discussed, but ultimately the 

[c]ourt decided not to assess the restitution because it would 

be better left for the sentencing judge." The Commonwealth adds 

that it was unable to obtain the transcript of that hearing 

because it was inadvertently deleted by the court. The 

defendant does not dispute the accuracy of this statement.
15

given that testimony, and gave defense counsel time to consult 

his client, request a further hearing on restitution, or 

object). Based on the Commonwealth's statement, the judge

determined that restitution should be ordered in the amount of 

$3,000. Our review of the record finds support for this factual 

finding. See Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 

756 (2006) ("We accept the factual findings supported by the 

record, as the judge was in the best position to determine 

matters of credibility").11

Despite the lack of agreement with regard to whether 

restitution should be ordered, this is a case in which the 

parties essentially agreed to the amount of restitution 

eventually ordered by the judge. The method of calculating the 

amount of the restitution order was not arbitrary, but instead 

based on facts that were not in dispute. In making an award of 

restitution, it is widely accepted that "some degree of 

approximation" is permitted, and that "mathematical precision"

is not required. See United States v. Kearney, 672 F.3d 81, 100 

(1st Cir. 2012) (quotations omitted). Contrast Commonwealth v. 

Hastings, 53 Mass. App. Ct. 41, 42 (2001) (concluding that a

restitution order for the economic loss of a 1984 vehicle could 

 

11 Because the judge found that the parties had reached an 

agreement on the amount of restitution that should be paid to 

the victim, the decision in Commonwealth v. Henry, supra, does 

not affect our analysis.
16

not be based simply on the cost of buying a different make and 

model of a 1992 vehicle to replace it). We discern no abuse of 

discretion.

Order of restitution

 affirmed.