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
24-P-843
COMMONWEALTH
vs.
LINDA MARIE MEDEIROS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2016, the defendant pleaded guilty in Superior Court to
six counts of larceny over $250 from a person over sixty years
of age. As a result, she was sentenced on count one to serve
not less than three years and not more than four years in State
prison. On the remaining five counts, the defendant was
sentenced to ten years of probation to run consecutive to her
term of incarceration. As a condition of her probation, the
defendant was ordered to pay restitution in the amount of
$1,416,803.10.
In 2019, following her release from prison, a Superior
Court judge held a hearing pursuant to Commonwealth v. Henry,
475 Mass. 117 (2016), regarding the restitution component of the defendant's probation. After that hearing, and by agreement,
the defendant was ordered to pay $400 per month.
In 2023, the defendant, having made payments totalling
approximately $24,000, moved to vacate the restitution order and
to terminate her probation. After a hearing before a different
Superior Court judge (motion judge), the defendant's probation
was terminated immediately, and the motion judge dismissed all
the remaining owed restitution, which totaled $1,392,345. After
a motion for reconsideration was denied, the Commonwealth
appealed. We reverse.
We review a decision to modify or terminate probation for
an abuse of discretion or other error of law. See, e.g.,
Commonwealth v. Eldred, 480 Mass. 90, 102-103 (2018);
Commonwealth v. Buckley, 90 Mass. App. Ct. 177, 180 (2016).
Here, the defendant's motion to vacate the restitution order and
to terminate probation was based on a claimed violation of
Henry, 475 Mass. at 122. The defendant claimed that the
"probationary period far exceeds the best practice of the
Superior Court and creates an extreme hardship."
The initial problem with the defendant's argument is that
the Supreme Judicial Court decided Henry approximately two
months after the defendant was sentenced and ordered to pay
restitution as a condition of her probation. As Henry announces
2 a common-law rule, and not one of constitutional dimension,1 the
Supreme Judicial Court could have indicated in Henry that the
new rule applies retroactively, but it was silent on the matter.
As this is not a direct appeal, but a collateral one, and a
matter of common law, the rule need not be applied
retroactively. See Commonwealth v. Dagley, 442 Mass. 713, 721
n.10 (2004), cert. denied, 544 U.S. 930 (2005). We will not
read in such an application in the face of the Supreme Judicial
Court's silence. Moreover, we will not apply Henry
retroactively where the defendant not only did not object to the
amount or term of the restitution order, but she actually agreed
to make the $400 per month payments for ten years. See
Commonwealth v. Clemente, 452 Mass. 295, 305 (2008).2
1 The defendant would fare no better if the new rule announced in Henry was of constitutional dimension. New rules of constitutional law may not be applied retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 311-313 (1989); Commonwealth v. Bray, 407 Mass. 296, 300 (1990). There are two narrow exceptions to that rule: when the new rule is one that (1) places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" or (2) is "implicit in the concept of ordered liberty," implicating "fundamental fairness," and is "central to an accurate determination of innocence or guilt," such that its absence "creates an impermissibly large risk that the innocent will be convicted" (quotations and citations omitted). Teague, supra. See Bray, supra; Commonwealth v. Peppicelli, 70 Mass. App. Ct. 87, 99 (2007). Neither of these exceptions apply to the rule announced in Henry.
2 The defendant also claims that her ten-year probationary term is contrary to the guidelines for "Criminal Sentencing in
3 Notwithstanding the above, even if Henry did apply to this
defendant, when she was released from incarceration, a Superior
Court judge held a hearing to assess the defendant's ability to
pay. Also, the defendant's term of probation was not extended
based on the defendant's inability to ever pay back the enormous
amount of money she stole. See Henry, 475 Mass. at 125. In
fact, the $400 payment per month for ten years would amount to a
total of $48,000, or less than four percent of the actual amount
stolen. The motion judge erred as a matter of law by concluding
that he was required to terminate probation because the
probation order "predate[d] Henry."
As indicated in his denial of the Commonwealth's motion to
reconsider, a second basis for the motion judge's allowance of
the motion to terminate the defendant's probation was as an
exercise of his discretion. See, e.g., Eldred, 480 Mass. at
the Superior Court: Best Practices for Individualized Evidence- Based Sentencing (October 2019)." To the extent these guidelines should have retroactively bound the sentencing judge, the motion judge did not base his decision on them. Also, the defendant relies on principle no. 9, which states that "[P]robationary terms should be no longer than three years, except where the nature of the offense or other circumstances specifically warrant a longer term." A strong argument could be made that this case meets that exception. In any event, the defendant has failed to cite any authority that holds that the sentencing judge –- or this court –- was bound by the guidelines, or that any deviation from them constitutes an abuse of discretion. In this light, we treat the claim as waived. See Mass. R. A. P. 16 (a) (9) (a), as appearing in 481 Mass. 1628 (2019).
4 102-103; Commonwealth v. Goodwin, 458 Mass. 11, 16-17 (2010).
When conditions amount to a material change in circumstances, a
judge may modify the conditions of probation in order "to serve
'the ends of justice and the best interests of both the public
and the defendant.'" Buckley v. Quincy Div. of the Dist. Court
Dep't, 395 Mass. 815, 817 (1985), quoting Burns v. United
States, 287 U.S. 216, 221 (1932). This may include eliminating
conditions or terminating probation. See Goodwin, supra at 18.
Although the motion judge stated he was exercising his
discretion, he did not indicate which facts or claims were
driving that decision. Aside from the Henry claim discussed
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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
24-P-843
COMMONWEALTH
vs.
LINDA MARIE MEDEIROS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2016, the defendant pleaded guilty in Superior Court to
six counts of larceny over $250 from a person over sixty years
of age. As a result, she was sentenced on count one to serve
not less than three years and not more than four years in State
prison. On the remaining five counts, the defendant was
sentenced to ten years of probation to run consecutive to her
term of incarceration. As a condition of her probation, the
defendant was ordered to pay restitution in the amount of
$1,416,803.10.
In 2019, following her release from prison, a Superior
Court judge held a hearing pursuant to Commonwealth v. Henry,
475 Mass. 117 (2016), regarding the restitution component of the defendant's probation. After that hearing, and by agreement,
the defendant was ordered to pay $400 per month.
In 2023, the defendant, having made payments totalling
approximately $24,000, moved to vacate the restitution order and
to terminate her probation. After a hearing before a different
Superior Court judge (motion judge), the defendant's probation
was terminated immediately, and the motion judge dismissed all
the remaining owed restitution, which totaled $1,392,345. After
a motion for reconsideration was denied, the Commonwealth
appealed. We reverse.
We review a decision to modify or terminate probation for
an abuse of discretion or other error of law. See, e.g.,
Commonwealth v. Eldred, 480 Mass. 90, 102-103 (2018);
Commonwealth v. Buckley, 90 Mass. App. Ct. 177, 180 (2016).
Here, the defendant's motion to vacate the restitution order and
to terminate probation was based on a claimed violation of
Henry, 475 Mass. at 122. The defendant claimed that the
"probationary period far exceeds the best practice of the
Superior Court and creates an extreme hardship."
The initial problem with the defendant's argument is that
the Supreme Judicial Court decided Henry approximately two
months after the defendant was sentenced and ordered to pay
restitution as a condition of her probation. As Henry announces
2 a common-law rule, and not one of constitutional dimension,1 the
Supreme Judicial Court could have indicated in Henry that the
new rule applies retroactively, but it was silent on the matter.
As this is not a direct appeal, but a collateral one, and a
matter of common law, the rule need not be applied
retroactively. See Commonwealth v. Dagley, 442 Mass. 713, 721
n.10 (2004), cert. denied, 544 U.S. 930 (2005). We will not
read in such an application in the face of the Supreme Judicial
Court's silence. Moreover, we will not apply Henry
retroactively where the defendant not only did not object to the
amount or term of the restitution order, but she actually agreed
to make the $400 per month payments for ten years. See
Commonwealth v. Clemente, 452 Mass. 295, 305 (2008).2
1 The defendant would fare no better if the new rule announced in Henry was of constitutional dimension. New rules of constitutional law may not be applied retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 311-313 (1989); Commonwealth v. Bray, 407 Mass. 296, 300 (1990). There are two narrow exceptions to that rule: when the new rule is one that (1) places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" or (2) is "implicit in the concept of ordered liberty," implicating "fundamental fairness," and is "central to an accurate determination of innocence or guilt," such that its absence "creates an impermissibly large risk that the innocent will be convicted" (quotations and citations omitted). Teague, supra. See Bray, supra; Commonwealth v. Peppicelli, 70 Mass. App. Ct. 87, 99 (2007). Neither of these exceptions apply to the rule announced in Henry.
2 The defendant also claims that her ten-year probationary term is contrary to the guidelines for "Criminal Sentencing in
3 Notwithstanding the above, even if Henry did apply to this
defendant, when she was released from incarceration, a Superior
Court judge held a hearing to assess the defendant's ability to
pay. Also, the defendant's term of probation was not extended
based on the defendant's inability to ever pay back the enormous
amount of money she stole. See Henry, 475 Mass. at 125. In
fact, the $400 payment per month for ten years would amount to a
total of $48,000, or less than four percent of the actual amount
stolen. The motion judge erred as a matter of law by concluding
that he was required to terminate probation because the
probation order "predate[d] Henry."
As indicated in his denial of the Commonwealth's motion to
reconsider, a second basis for the motion judge's allowance of
the motion to terminate the defendant's probation was as an
exercise of his discretion. See, e.g., Eldred, 480 Mass. at
the Superior Court: Best Practices for Individualized Evidence- Based Sentencing (October 2019)." To the extent these guidelines should have retroactively bound the sentencing judge, the motion judge did not base his decision on them. Also, the defendant relies on principle no. 9, which states that "[P]robationary terms should be no longer than three years, except where the nature of the offense or other circumstances specifically warrant a longer term." A strong argument could be made that this case meets that exception. In any event, the defendant has failed to cite any authority that holds that the sentencing judge –- or this court –- was bound by the guidelines, or that any deviation from them constitutes an abuse of discretion. In this light, we treat the claim as waived. See Mass. R. A. P. 16 (a) (9) (a), as appearing in 481 Mass. 1628 (2019).
4 102-103; Commonwealth v. Goodwin, 458 Mass. 11, 16-17 (2010).
When conditions amount to a material change in circumstances, a
judge may modify the conditions of probation in order "to serve
'the ends of justice and the best interests of both the public
and the defendant.'" Buckley v. Quincy Div. of the Dist. Court
Dep't, 395 Mass. 815, 817 (1985), quoting Burns v. United
States, 287 U.S. 216, 221 (1932). This may include eliminating
conditions or terminating probation. See Goodwin, supra at 18.
Although the motion judge stated he was exercising his
discretion, he did not indicate which facts or claims were
driving that decision. Aside from the Henry claim discussed
above, the only other reasons underlying the defendant's request
to terminate her probation and the restitution order were argued
before the motion judge.
At the motion hearing, the defendant never claimed that she
was unable to pay the $400 a month. Rather, she claimed her
probation was causing her anxiety because she wanted to travel
to Italy to plan and attend her daughter's wedding. However, as
the probation officer mentioned at the hearing, the defendant
only needed a court order to travel internationally, as she had
successfully done in the past when she traveled to the Bahamas.
The remaining reason offered by defense counsel was that
she "was bother[ed]" by the fact that although the defendant
5 stole "a lot of money," she stole it "from a very wealthy
individual." Counsel decried the lack of parity in punishment
for this defendant as compared to a hypothetical defendant who
stole a lesser amount of money from a victim of a lower economic
status, who counsel suggested would have been given a house of
correction sentence.
In the end, neither of these additional reasons justified
the termination of the defendant's probation and restitution. A
simple court order permitting international travel fell within
the range of reasonable alternatives. Terminating probation for
even an otherwise successful probationer, who established no
financial hardship, who agreed to the length of the probation
term and the amount to be paid, which constituted a mere four
percent of the amount she stole, was not. See L.L. v
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
We further add that the Legislature in enacting our larceny
statute did not create a punishment scheme that turned on an
imagined financial caste system for crime victims or an economic
theory based on Robin Hood. In fact, the remedy of restitution
is available regardless of the victim's economic status.
Indeed, "the 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
6 damage [which] he or she caused as a punitive and rehabilitative
sanction." Commonwealth v. Malick, 86 Mass. App. Ct. 174, 181
(2014), quoting Commonwealth v. Williams, 57 Mass. App. Ct. 917,
918 (2003). The motion judge's order terminating probation and
restitution constituted an abuse of discretion.3
The orders terminating probation, deeming restitution
satisfied, and dismissing monies owed are reversed. The matter
is remanded to the Superior Court for the entry of an order
reimposing the remainder of the defendant's probation term and
conditions, including the condition that she pay $400 per month
in restitution until the ten-year term expires.
So ordered.
By the Court (Meade, Walsh & Hodgens, JJ.4),
Clerk
Entered: October 1, 2025.
3 Lastly, we note that the probation department received short notice of the hearing on the defendant's request to terminate her probation. As a result, the probation department was unable to contact the victim or her family before the hearing was conducted. Conducting the hearing without notice to the victim was contrary to the victims' bill of rights. See G. L. c. 258B, § 3 (o) ("If the offender seeks to modify the restitution order, the offender's supervising probation officer shall provide notice to the victim[,] and the victim shall have the right to be heard at any hearing relative to the proposed modification").
4 The panelists are listed in order of seniority.