Commonwealth v. Avram A.

982 N.E.2d 548, 83 Mass. App. Ct. 208, 2013 WL 323346, 2013 Mass. App. LEXIS 17
CourtMassachusetts Appeals Court
DecidedJanuary 30, 2013
DocketNo. 11-P-1489
StatusPublished
Cited by3 cases

This text of 982 N.E.2d 548 (Commonwealth v. Avram A.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Avram A., 982 N.E.2d 548, 83 Mass. App. Ct. 208, 2013 WL 323346, 2013 Mass. App. LEXIS 17 (Mass. Ct. App. 2013).

Opinion

Meade, J.

After admitting to facts sufficient to warrant a find[209]*209ing of delinquency for “tagging” property in violation of G. L. c. 266, § 126B, the juvenile’s case was continued without a finding for one year with agreed-to conditions which included the payment of restitution. On appeal, the juvenile claims the restitution order constituted an abuse of the judge’s discretion because the juvenile was unable to pay due to his age, the order was contrary to the purpose of the juvenile justice system, it was improperly extended, and it was not supported with adequate documentation and evidence. We affirm.

1. Background. After conducting a restitution hearing, the judge found the following facts. Armed with a can of spray paint, the juvenile “tagged” several properties in Easthampton. At Richard Dudkiewicz’s home, letters were spray painted on some newly installed vinyl siding on the garage. The paint could not be removed from the siding. The professional estimate to replace the siding was $276.45. Dudkiewicz performed the repair himself. The siding material cost him $160, and the job took two days to complete. Utilizing the minimum wage rate of eight dollars per hour, multiplied by fifteen hours, the judge calculated the labor cost to be worth $120; the professional labor estimate was $110.

At Eric SergaTs home, the juvenile spray painted some symbols and numerals on the concrete foundation. Sergal received a $500 estimate to remove the paint. The judge found that the damage to Sergal’s property was very similar in size and location to that done to the home of his neighbor, Robert Blanchette.1 Blanchette, who was elderly and in poor health, did not obtain an estimate for the paint removal from his property. At the conclusion of the hearing, the judge ordered the juvenile to pay $1,313.78 in restitution.2

A year after his admission to sufficient facts and his agreement to pay restitution, the juvenile had paid nothing towards the amount owed. As a result, he was brought before the court for violating his probation. The juvenile, who was twelve years [210]*210old at the time of the probation violation hearing, maintained he was unable to pay due to his age. The juvenile has no medical or mental health condition that impairs his ability to earn money. He had a savings account with approximately twenty dollars in it, but had not paid any of that money to the victims. He offered no other evidence regarding his inability to pay. The judge found the juvenile in violation and extended his probation until his sixteenth birthday to enable him to satisfy the restitution order. The judge reduced the restitution amount by $250, which had been paid by a codefendant, to $1,063.78, and waived any other probation costs so the juvenile could “concentrate his energies” on paying the victims whom he had harmed. The appellate record indicates the juvenile has paid nothing to satisfy the ordered restitution.

2. Discussion, a. The restitution order. Unlike our adult criminal justice scheme, the underlying philosophy of our juvenile justice system is that it is not punitive. See Police Commr. of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 666-667 (1978). “Rather, it is primarily rehabilitative, cognizant of the inherent differences between juvenile and adult offenders, and geared toward ‘the correction and redemption to society of delinquent children.’ ” Commonwealth v. Magnus M., 461 Mass. 459, 461 (2012), quoting from Metcalf v. Commonwealth, 338 Mass. 648, 651 (1959). When we interpret provisions within the juvenile justice system, we view them not through a criminal lens, but instead we construe those provisions liberally — but practically — so that children are seen not as criminals, but as “children in need of aid, encouragement and guidance.” G. L. c. 119, § 53. See Commonwealth v. Magnus M., supra.

The juvenile claims the judge abused his discretion by ordering him, as a twelve year old boy, to pay restitution for the damage he did to the victims’ property. We disagree. To constitute an abuse of discretion, the juvenile must show that “no conscientious judge, acting intelligently, could honestly have taken the view expressed by him.” Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985), quoting from Commonwealth v. Bys, 370 Mass. 350, 361 (1976). We undertake this inquiry against the backdrop of the underlying purpose and philosophy of the juvenile justice system described above.

[211]*211As a starting point, we first determine whether the judge had the authority to order the juvenile to pay restitution. He did. “As a condition of probation, a Juvenile Court [judge] may order a child to pay restitution to a person who has been injured by, or sustained property damage as a result of, the delinquent act.” Ireland, Juvenile Law § 1.78 (2d ed. 2006) (Juvenile Law). Indeed, the Legislature enacted G. L. c. 119, § 62, which expressly confers such authority on Juvenile Court judges. Section 62 states:

“If, in adjudging a person a delinquent child, the court finds, as an element of such delinquency, that he has committed an act involving liability in a civil action, and such delinquent child is placed on probation, the court may require, as a condition thereof, that he shall make restitution or reparation to the injured person to such an extent and in such sum as the court determines. If the payment is not made at once, it shall be made to the probation officer, who shall give a receipt therefor, keep a record of the payment, pay the money to said injured person, and keep on file his receipt therefor.”

G. L. c. 119, § 62, inserted by St. 1906, c. 413, § 12.3

When a judge exercises his or her discretion to order restitution following a delinquency determination by an admission to sufficient facts or by verdict, the child is entitled to a hearing on the question of the proper amount of restitution. See Commonwealth v. Nawn, 394 Mass. 1, 7-8 (1985); Juvenile Law, supra at § 1.78. The judge held such a hearing in this case. At the hearing, it was the Commonwealth’s burden to prove the amount of the victims’ losses by a preponderance of the evidence. Commonwealth v. McIntyre, 436 Mass. 829, 834 (2002). The juvenile, in turn, had the opportunity to challenge that evidence as well as present evidence relevant to his ability to pay. Commonwealth v. Morris M., 70 Mass. App. Ct. 688, 698 (2007).

To satisfy its burden to prove the dollar amount of the damage caused by the juvenile, the Commonwealth offered the [212]*212testimony of two witnesses and four exhibits. Although given the opportunity, as the judge found, the juvenile did not offer any evidence on his ability to pay. See Commonwealth v. Morris M., supra (juvenile offered no evidence on his ability to pay). Instead, the juvenile argued that he cannot work because he is only twelve, which he claims was “all he needed to show” given the limited financial prospects for a child his age. On appeal, he supports this claim by reference to the Commonwealth’s Web site, which notes that, with limited exceptions, children under the age of fourteen cannot work. But neither argument nor citation to a Web site are substitutes for evidence.

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Bluebook (online)
982 N.E.2d 548, 83 Mass. App. Ct. 208, 2013 WL 323346, 2013 Mass. App. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-avram-a-massappct-2013.