Complaint received and sworn to in the
Haverhill Division of the District Court Department on July 13, 2009.
A motion for restitution of costs and
fees, filed on June 12, 2017, was heard by Stephen S. Abany, J., and questions
of law were reported by him to the Appeals Court.
The Supreme Judicial Court granted an
application for direct appellate review.
Complaints received and sworn to in the
Framingham Division of the District Court Department on August 10 and September
A motion for return of property, filed on
August 25, 2017, was heard by David W. Cunis, J., and questions of law were
reported by him to the Appeals Court.
The Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.
Benjamin H. Keehn, Committee for Public
Counsel Services (Nancy J. Caplan & Eric Brandt, Committee for Public
Counsel Services, also present) for the defendants.
Jessica Langsam & Robert E. Toone,
Assistant District Attorneys, for the Commonwealth.
Sarah M. Joss, Special Assistant Attorney
General, for Massachusetts Probation Service.
Luke Ryan, Daniel N. Marx, & William
W. Fick, for Stacy Foster & others, amici curiae, submitted a brief.
GANTS, C.J. In Nelson v. Colorado, 137 S. Ct. 1249, 1252 (2017),
the United States Supreme Court held that "[w]hen a criminal conviction is
invalidated by a reviewing court and no retrial will occur," the State is
required under the due process clause of the Fourteenth Amendment to the United
States Constitution "to refund fees, court costs, and restitution exacted
from the defendant upon, and as a consequence of, the conviction." There can be no doubt that, because of this
controlling authority, Massachusetts courts are required to order the refund of
fees, court costs, and restitution paid by a defendant as a consequence of a
later invalidated conviction. These two
cases, however, present ten reported questions regarding the scope and
application of the due process obligations established in the Nelson decision. We have reformulated the reported questions
into three broader questions to provide guidance to trial courts and litigants
regarding the repayment of probation fees, victim-witness assessments,
restitution, fines, forfeitures, and court costs after a conviction has been
Jose Martinez. In 2010, Jose
Martinez pleaded guilty in District Court to three counts of possession of a
controlled substance with intent to distribute and one count of unlicensed
operation of a motor vehicle. On the
three drug convictions, Martinez received concurrent sentences of one year in a
house of correction, suspended, with two years of probation supervision. On one of his drug convictions, Martinez was
also ordered to pay $1,000 in restitution to the Haverhill police department, 
a monthly fee of sixty-five dollars, as required under G. L. c. 276,
§ 87A, for those placed on supervised probation,  and a victim-witness
assessment of ninety dollars, as required under G. L. c. 258B, § 8, for
those convicted of a felony.  On his
conviction for unlicensed operation of a motor vehicle, Martinez was ordered to
pay a fine of one hundred dollars. After
being sentenced on his drug convictions, Martinez paid a total of $2,650: $1,000 in restitution, $1,560 in monthly
probation supervision fees, and a victim-witness assessment of ninety dollars.
On April 19, 2017, Martinez's drug
convictions were vacated and dismissed with prejudice pursuant to the single
justice's order arising from our decision in Bridgeman v. District Attorney for
Suffolk Dist., 476 Mass. 298 (2017) (Bridgeman II), because the convictions
were tainted by the misconduct of Annie Dookhan, a chemist who was employed by
the William A. Hinton State Laboratory Institute when the drugs seized from
Martinez were examined by that laboratory.
Martinez's misdemeanor conviction of unlicensed operation of a motor
vehicle was not dismissed.
After being informed that his drug
convictions had been dismissed with prejudice, Martinez filed a motion for the
return of his probation supervision fees, victim-witness assessment, and
restitution payment. The judge, without
ruling on the motion, reported the matter and seven questions of law to the
Appeals Court pursuant to Mass. R. Crim. P. 34.  We allowed the defendant's motion for direct
Stephanie Green. On October 8,
2008, Stephanie Green was sentenced in District Court on two drug-related
counts arising from a complaint that had been filed after a search warrant had
been executed at her residence on August 9, 2007. Green was placed on supervised probation for
two years on each count, to be served concurrently. On one of these counts, Green was assessed a
probation fee of sixty-five dollars per month and a victim-witness assessment
of fifty dollars.  The judge at
sentencing also allowed the Commonwealth's motion for the forfeiture of
$1,411.63 seized from Green's home during the search.
That same day, before the same judge,
Green was sentenced on four other drug-related counts arising from a complaint
that had been filed after a search warrant had been executed at Green's hotel
room on September 14, 2007. On counts
one and two, Green was sentenced to one year in a house of correction,
suspended for two years, with two years of supervised probation. She also was ordered to pay fines totaling
$4,000 and surfines totaling $1,000. On
count one, Green was further ordered to pay a victim-witness assessment of
fifty dollars. On count four, she was
placed on probation for two years. On
count seven, she was sentenced to a term of thirty days in a house of
correction, to be served on weekends.
On April 19, 2017, Green's convictions
were vacated and dismissed with prejudice pursuant to the single justice's
order arising from Bridgeman II. Green
then moved for a refund of the $8,071.63 she had paid after being sentenced on
the drug convictions arising from the two complaints: $1,411.63 in forfeited
cash, $1,560 in probation fees, one hundred dollars in victim-witness
assessments, and $5,000 in fines and surfines.  The judge, without ruling on the motion,
reported the matter and three questions of law to the Appeals Court pursuant to
Mass. R. Crim. P. 34.  We transferred
the case to this court on our own motion, and now consider the reported
questions in conjunction with those reported in Martinez's case.
For the sake of providing clear and simple
guidance to trial courts and litigants regarding the scope and application of
the due process obligation announced in Nelson, we have exercised our authority
to reformulate the reported questions into three more general questions. See Commonwealth v. Eldred, 480 Mass. 90,
93-94 (2018) (reformulating reported question to make it answerable on existing
record); Tedford v. Massachusetts Hous. Fin. Agency, 390 Mass. 688, 692-693
(1984) (summarizing reported questions).
See also McStowe v. Bornstein, 377 Mass. 804, 805 n.2 (1979)
("[r]eported questions need not be answered . . . except to the extent
that it is necessary to do so in resolving the basic issue"). The questions are:
1. What is the scope of the due process
obligation to refund money paid by a defendant "upon, and as a consequence
of" a conviction that has been invalidated? Nelson, 137 S. Ct. at 1252.
2. What is the procedure to be used to determine
a defendant's entitlement to a refund and the amount to be refunded, and who
bears the burden of proof?
3. Where a judge determines that a defendant is
entitled to a refund, how will payment of the refund be accomplished?
Discussion. Before we address these questions, it is
important to understand the context and reasoning of the Supreme Court's
opinion in Nelson. There, two defendants
were convicted of various crimes and ordered to pay court costs and fees, which
went to two funds -- a "victim compensation fund" and a "victims
and witnesses assistance and law enforcement fund." Nelson, 137 S. Ct. at 1253 nn.1, 2. In addition, the defendants were ordered to
pay restitution to the victims of their crimes.
Id. at 1253. See People v.
Madden, 364 P.3d 866, 867-868 (Colo. 2015); People v. Nelson, 362 P.3d 1070,
1073 (Colo. 2015). All counts of their
convictions were later invalidated. 
Nelson, supra at 1258.
The defendants then moved for the return
of the court costs, fees, and restitution they had paid. Id. at 1253.
The Supreme Court of Colorado held that such a refund could be ordered
only with statutory authority, and that the exclusive process for exonerated
defendants to seek such a refund was through the Compensation for Certain
Exonerated Persons act, a Colorado law allowing defendants whose convictions
had been invalidated to receive a refund of fines, penalties, costs, and
restitution only after they proved their innocence by clear and convincing
evidence in a separate civil proceeding.
Nelson, 137 S. Ct. at 1254.
The United States Supreme Court reversed
the judgment, holding that a scheme whereby "a defendant must prove [his
or] her innocence by clear and convincing evidence to obtain the refund of
costs, fees, and restitution paid pursuant to an invalid conviction . . . does
not comport with due process." Id.
at 1255. The Supreme Court evaluated the
defendants' due process claims under the balancing test established in Mathews
v. Eldridge, 424 U.S. 319, 335 (1976), which requires courts to weigh (1) the
private interests affected; (2) the risk that the procedures used will result
in erroneous deprivation of those interests; and (3) the governmental
interests. Nelson, 137 S. Ct. at
1255. The Supreme Court held that all
three factors weighed "decisively" in favor of the defendants. Id.
As to the first factor in the balancing
test, the Court stated that there was an "obvious interest" in a
refund of money paid as a consequence of convictions that were no longer
valid. Id. An overturned conviction restores the
presumption of innocence, the Court said, erasing any State claim to funds paid
in the form of costs, fees, or restitution.
Id. at 1255-56.
As to the second factor, the Court declared
that the act's requirement that defendants prove their innocence by clear and
convincing evidence created a risk of erroneous deprivation of the defendants'
interest in a refund of their money. Id.
at 1256. Once the presumption of
innocence is restored, "defendants should not be saddled with any proof
As to the third factor, the Court stated
that Colorado had "zero claim of right" to money paid solely as a
consequence of subsequently invalidated convictions. Id. at 1257.
Under the Court's holding in Nelson, id.
at 1252, 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."
We understand that this third element is met where, for example, the
conviction was vacated, whether by an appellate court or a trial court, and the
indictment or count was subsequently dismissed with prejudice or nol prossed by
the prosecutor, or was retried and resulted in an acquittal. In addition, "[t]o comport with due
process, a State may not impose anything more than minimal procedures on the
refund of exactions dependent upon a conviction subsequently
invalidated." Id. at 1258. Because the refund obligation is
constitutional, it applies even where there is no statutory authority for the
refund of fines, fees, court costs, or restitution to a defendant whose
conviction was invalidated. Cf.
Commonwealth v. Martin, 476 Mass. 72, 79 (2016). 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. Although the Supreme Court speaks
only of a "conviction," we understand a "conviction" in
light of this due process principle to include continuances without a finding
and juvenile adjudications. Cf.
Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 734-735
(2018) (defining class of "Farak defendants" to include defendants
who pleaded guilty to drug charge, admitted to sufficient facts to warrant
finding of guilty on drug charge, or were found guilty of drug charge at
trial); Bridgeman II, 476 Mass. at 306 (providing comparable definition for
"relevant Dookhan defendants").
We now address each of the reformulated
What is the scope of the due process obligation to refund money paid by
a defendant "upon, and as a consequence of" a conviction that has
been invalidated? a. Probation fees. Where a judge sentences a defendant to
probation on a single conviction, monthly probation fees ordered under
G. L. c. 276, § 87A, are paid by the defendant as a direct
consequence of that conviction.
Therefore, any amount paid by the defendant is "taken from [him or]
her solely on the basis of a conviction," Nelson, 137 S. Ct. at 1257, and
must be returned in full once the conviction is invalidated and it is
determined that the case will not or cannot be retried. Id. at 1252.
Where a judge, however, sentences a
defendant to a concurrent term of probation on multiple convictions, the
probation fees must be refunded to the defendant only where they were paid
solely because of an invalidated conviction.
Where the defendant was sentenced to a concurrent term of probation on a
conviction that remains valid, due process does not require that the probation
fees paid during that concurrent term be refunded, because the obligation to
pay monthly probation fees associated with a valid conviction is unaffected by
the subsequent invalidation of a different conviction. For example, if a defendant were convicted of
a drug count and a firearms count and sentenced to two years of supervised
probation on the drug count and one year of supervised probation on the
firearms count, to be served concurrently, subsequent invalidation of the drug
conviction would have no impact on the defendant's obligation to pay probation
fees in the first year on the firearms conviction. Because the defendant is entitled to a refund
of only those fees paid as a direct consequence of the invalidated drug
conviction, he or she would receive a refund of probation fees paid during the
second but not the first year of probation.
Due process requires the refund of fees paid for an invalidated
conviction, but it does not require that a defendant be placed in a better
position because of an invalidated conviction than the defendant would have
been in had he or she been sentenced on only the surviving convictions.
Here, all of the counts for which both
defendants were sentenced to probation have been invalidated. As a result, all paid probation fees must be
refunded because they were paid solely as a consequence of those invalidated
Victim-witness assessments. As
with probation fees, where a defendant is sentenced on a single conviction, the
victim-witness assessment ordered under G. L. c. 258B, § 8, is
exacted from the defendant solely as a consequence of that conviction. Any amount paid must therefore be returned
where the conviction is invalidated and it is determined that the case will not
or cannot be retried. But where a
defendant is sentenced on multiple indictments or counts of a complaint, due
process does not require the refund of a victim-witness assessment imposed on
an invalidated conviction where a surviving conviction also would have required
the imposition of a victim-witness assessment under G. L. c. 258B, § 8.
As applied here, all of Green's
convictions have been invalidated, so she is entitled to a refund of the
victim-witness assessments paid as a consequence of those convictions.
In contrast, Martinez's drug convictions
were invalidated, but his conviction of unlicensed operation of a motor vehicle
was not. Had Martinez been convicted of
only the latter, a misdemeanor, the judge would have been required to impose a
victim-witness assessment of fifty dollars.
See G. L. c. 258B, § 8.
Presumably, this assessment was not ordered at sentencing only because
the defendant had already been ordered to pay a victim-witness assessment of
ninety dollars on one of his felony drug convictions. Martinez is therefore entitled to a refund
in the amount of forty dollars, the difference between the amount he paid
(ninety dollars) and the amount he would have paid if not for the invalidated
felony convictions (fifty dollars). A
full refund of the ninety dollars would place the defendant in a better
position than he would have been in had he originally been convicted of only the
Restitution. Due process requires
the refund of restitution paid as a consequence of an invalidated conviction,
see Nelson, 137 S. Ct. at 1252, but the refund of restitution poses two complex
issues that generally do not arise with the refund of fees.
First, fees are generally paid solely as a
consequence of a conviction and present no opportunity to obtain a civil
judgment for their award. But
restitution may be ordered as a special condition of probation in a criminal
sentence, see Commonwealth v. Henry, 475 Mass. 117, 120 (2016), or obtained by
the victim through an execution on a separate civil judgment, see id. at 122
n.5; Mass. R. Civ. P. 69, 365 Mass. 836 (1974).
The Supreme Court noted in Nelson, 137 S.
Ct. at 1253 n.3, that "[u]nder Colorado law, a restitution order tied to a
criminal conviction is rendered as a separate civil judgment," and that,
"[i]f the conviction is reversed, any restitution order dependent on that
conviction is simultaneously vacated."
See People v. Scearce, 87 P.3d 228, 234-235 (Colo. App. 2003). In contrast, under Massachusetts law, there
is no statutory authority that permits a restitution order issued by a judge in
a criminal case to be enforced through a separate civil judgment; a victim seeking
a civil judgment against the defendant must initiate a separate civil action
for restitution damages. See Henry, 475
Mass. at 121, 123 (restitution may be ordered in criminal case only as
condition of probation, and probation is not "a civil program or
sanction" [citation omitted]); id. at 122 n.5 (victims may collect on
civil judgments for restitution through civil executions). See also G. L. c. 258B, § 3
(u). And, once a victim obtains such a
civil judgment, the invalidation of the criminal conviction does not
automatically result in the civil judgment being vacated. Instead, a defendant seeking to vacate a
civil judgment in light of an invalidated criminal conviction must move
separately for relief from that judgment under Mass. R. Civ. P. 60 (b), 365
Mass. 828 (1974), which allows for relief in circumstances where "a prior
judgment upon which [an order] is based has been reversed or otherwise
Where a defendant moves for such relief,
the motion judge must determine whether the civil judgment can stand despite
the invalidation of the criminal conviction.
In contrast with a criminal conviction, which requires proof beyond a
reasonable doubt,  a civil judgment requires proof only by a preponderance
of the evidence, see Baker v. Parsons, 434 Mass. 543, 554 n.18 (2001), and that
proof may be obtained through evidence separate and apart from the fact of
conviction. In fact, under Massachusetts
law, a civil judgment may be obtained through collateral estoppel (also known
as issue preclusion) based on a criminal conviction only where the defendant
has been found guilty at trial; admissions made by a defendant during a guilty
plea colloquy do not trigger collateral estoppel, although they may be admitted
in evidence in the civil case. Aetna
Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742, 748-750 (1985). See also Metropolitan Prop. & Cas. Ins.
Co. v. Morrison, 460 Mass. 352, 364 (2011) (where "a criminal conviction
follows a guilty plea, the plea may be offered as evidence of a defendant's
guilt in subsequent civil litigation but it is not given preclusive
In Nelson, 137 S. Ct. at 1252, 1253 n.3,
the Supreme Court held that the defendants were entitled to a refund of
restitution that had been the subject of civil judgments associated with
criminal convictions. Under Colorado
law, the Court said, such civil judgments are "simultaneously
vacated" when the underlying convictions are reversed. Id. at 1253 n.3. Because Martinez's restitution order was not
tied to a civil judgment, we need not address here whether due process requires
the refund of restitution related to an invalidated conviction where there is a
surviving civil judgment. Moreover, the
issue has been rendered moot by the refund of his restitution payment.
Second, in contrast with fees, which in
Massachusetts are paid to the Commonwealth, see G. L. c. 29A, § 3,
restitution is paid to the victims of crimes, who are often individuals or
private entities. The Supreme Court in
Nelson, 137 S. Ct. at 1252, concluded that the State is obliged to refund restitution
exacted from the defendant as a consequence of his or her invalidated
conviction. But the Court also appeared
to assume that the restitution was paid to the State, and not to a private
victim. See id. at 1255 (defendants
"have an obvious interest in regaining the money they paid to
Colorado"); id. at 1256 ("Colorado may not retain funds taken from
[the defendants] solely because of their now-invalidated convictions");
id. at 1257 (defendants "seek restoration of funds they paid to the
State"). This assumption might have
been unwarranted because in Colorado, where "the obligation to pay
restitution is included in the defendant's sentence, restitution results in a
final civil judgment against the defendant in favor of the State and the
victim." Id. at 1262 (Alito, J.,
concurring in the judgment), citing Colo. Rev. Stat. § 18-1.3-603(4)(a)(I)
(2016). In fact, the restitution paid by
both Nelson defendants was used to pay for mental health therapy and counselling
for the victim children. See Madden, 364
P.3d at 867-68 (defendant was ordered to pay $910 in restitution to victim and
actually paid $757.75, which went to counselling services); Nelson, 362 P.3d at
1071 & n.1 (defendant was ordered to pay $7,845 to victims as restitution
and actually paid $414.60).
Because the restitution here was paid to
the Haverhill police department and has been repaid, we need not decide whether
Nelson requires the Commonwealth to refund restitution paid by a defendant as a
consequence of an invalidated conviction where the restitution was paid not to
the Commonwealth, but to a private victim.
We certainly expect the Commonwealth and any other governmental entity
to refund restitution paid to it as a consequence of a conviction where the
conviction is later invalidated. But we
recognize that it is another matter to order the Commonwealth to repay a
defendant for restitution that the Commonwealth never received because that
restitution was paid to a private victim.
We also recognize the challenges involved if a court were to order
private victims to repay restitution that had perhaps been received by them
years earlier. A victim is not a party
to a criminal proceeding and, if faced with the prospect of having to repay
restitution, might wish to initiate a civil proceeding against the defendant to
obtain a civil judgment for that restitution amount. Does a judge postpone the order of refund to
give the victim a reasonable opportunity to pursue that remedy? And what happens if the victim no longer has
the ability to repay the restitution amount, or is financially able but
unwilling to repay? We need not address
these issues because they are not presented in these cases, but it may not be
long before we confront a case that demands their resolution.
Fines. Green seeks a refund of
the $5,000 in fines and surfines paid as part of her sentence on two
invalidated drug convictions. Although
the refund of fines was not at issue in Nelson, Green claims that she is
entitled to a refund under the due process principles established in Nelson
because her drug convictions have been invalidated and the fines were exacted
from her upon and as a consequence of those convictions. We agree that there is no reason to exclude
fines and surfines from the category of payments that must be refunded to a
defendant as a matter of due process where the defendant was ordered to pay
those fines and surfines solely as a consequence of a subsequently invalidated
conviction. See Commonwealth v. Accime, 476
Mass. 469, 477 & n.13 (2017) (where conviction is vacated, "defendant
may be entitled to a refund of any fine he may have paid"). Green is therefore entitled to a refund of
fines and surfines totaling $5,000.
Forfeiture. Green also seeks a
refund of $1,411.63, the amount of money seized from her home during the
execution of the search warrant and ordered forfeited at her plea hearing. Although forfeiture was not at issue in
Nelson and was not mentioned in the opinion, Green claims that she is entitled
to a refund of the forfeited funds under the due process principles established
We conclude that Green is not entitled to
return of the forfeited funds because forfeiture, even where ordered at a plea
hearing, "is outside the scope of the criminal matter and constitutes a civil
proceeding." Commonwealth v. Brown,
426 Mass. 475, 480 (1998). The
forfeiture of property is authorized by G. L. c. 94C, § 47,
which sets forth two methods by which forfeiture proceedings may be initiated
by the Commonwealth: either by petition in the nature of a proceeding in rem
filed in the Superior Court under § 47 (d), or by motion filed in a
related criminal proceeding under § 47 (b). See Brown, supra. Regardless of which type of proceeding is
chosen by the Commonwealth, the burden of proof remains the same: "the [C]ommonwealth shall have the
burden of proving to the court the existence of probable cause to institute the
[forfeiture] action, and [the] claimant shall then have the burden of proving that
the property is not forfeitable."
Id. at 477 & n.3, quoting G. L. c. 94C, § 47 (d).
Here, the Commonwealth sought the
forfeiture of the $1,411.63 seized from Green's home under § 47 (b) by a
motion in the criminal proceeding. 
Under such circumstances, probable cause for the forfeiture may be shown
from the same facts the prosecutor presented as the factual basis for the
defendant's guilty plea. See id. at
477-478. The Commonwealth satisfies its
initial burden, and thus shifts the burden of proof to the defendant, by
showing that "the Commonwealth had reliable information in its possession
that established probable cause" to believe that "the property at
issue derived from illegal narcotics or facilitated a violation of the
controlled substances laws."
Commonwealth v. One 2004 Audi Sedan Auto., 456 Mass. 34, 38-39
(2010). The Commonwealth may make this
showing of nexus even where it lacks a sufficient factual basis to support a
finding of guilt, or where a defendant is found not guilty at trial, or where
the Commonwealth later dismisses or nol prosses the criminal complaint or
indictment. See Commonwealth v. Fourteen
Thousand Two Hundred Dollars, 421 Mass. 1, 9 (1995); Commonwealth v. One 1986
Volkswagen GTI Auto., 417 Mass. 369, 370 n.2 (1994).
Green contends that the forfeiture order,
for all practical purposes, was a consequence of the invalidated drug
convictions and should therefore be invalidated along with the
convictions. But the motion for
forfeiture of Green's money under § 47 (b), as a matter of law, initiated
a separate civil proceeding that was adjudicated at the same time as the
criminal proceeding. See Brown, 426
Mass. at 480. The finding of probable
cause of nexus that sufficed to order forfeiture in the civil proceeding did
not depend on the finding in the criminal proceeding of sufficient evidence to
warrant a finding of guilt on the plea.
See Fourteen Thousand Two Hundred Dollars, 421 Mass. at 9. The forfeiture judgment therefore was not solely
a consequence of the invalidated drug convictions, and need not be vacated
because of their invalidation. To be
sure, the reasons for invalidating a conviction potentially may warrant relief
from the civil judgment of forfeiture, but that issue must be separately
litigated in the civil forfeiture proceeding through a motion for relief from
judgment under Mass. R. Civ. P. 60 (b).
A defendant is not entitled to such relief solely because the criminal
convictions that were related to the forfeiture were invalidated. Green, therefore, is not entitled as a matter
of due process to a refund of the $1,411.63 taken in forfeiture solely because
her drug convictions were invalidated.
Court costs. Although court costs
were not imposed in these cases, we address the issue because their refund is
specifically required under Nelson, 137 S. Ct. at 1252. In Massachusetts, "[c]osts shall not be
imposed by a justice as a penalty for a crime." G. L. c. 280, § 6.  Because Nelson, 137 S. Ct. at 1252, requires
the refund of only those costs exacted from the defendant "upon, and as a consequence
of, the conviction," and because § 6 prohibits court costs from being
ordered as a consequence of conviction, the due process obligation set forth in
the Nelson decision should not affect court costs assessed in Massachusetts. The due process obligation to refund would
apply to court costs only where, in apparent violation of § 6, a defendant
was ordered to pay court costs as a consequence of a conviction that was later
We recognize that the exactions discussed
above are not the only ones that can issue as the result of a conviction. See, e.g., G. L. c. 90, § 24
(assessments and fees in cases of operating motor vehicle while under
influence); G. L. c. 258B, § 8 (domestic violence prevention
assessments); G. L. c. 280, § 6B (drug analysis fees). Because questions regarding other fines and
fees are not presented in these two cases and were not at issue in Nelson, we
do not address them here.
What is the procedure to be used to determine a defendant's entitlement
to a refund and the amount to be refunded, and who bears the burden of
proof? Whether a defendant has been
ordered to pay fees, court costs, restitution, or fines as a consequence of an
invalidated conviction is a question whose answer should be found in the case
docket. But it is often difficult and
potentially time-consuming to determine whether those exactions have actually
been paid by the defendant -- that information might not be in the docket,
especially in older cases, and might require review of the case file or the
probation file. It might be similarly
challenging to determine whether a defendant with an invalidated conviction has
surviving convictions that require the court to reassign money paid to those
convictions rather than to refund it.
Therefore, the allocation of the burdens of production and proof matters
a great deal in determining whether defendants whose convictions have been
invalidated will be able to successfully establish their entitlement to a
refund of amounts paid.
The Supreme Court in Nelson, 137 S. Ct. at
1258, held that "[t]o comport with due process, a State may not impose
anything more than minimal procedures on the refund of exactions dependent upon
a conviction subsequently invalidated."
Although the Court clearly stated that requiring a defendant to prove
his or her innocence to obtain a refund violates due process, id. at 1256, the
Court did not provide any further guidance as to what was meant by "no
more than minimal procedures." Id.
We now outline the procedure to be
followed in cases where the defendant applies for a refund of monies paid as a
direct consequence of a conviction that has been invalidated. We set forth this procedural guidance under
the due process protections implicit in art. 12 of the Massachusetts
Declaration of Rights. We are confident
that the procedural guidance we provide satisfies the due process clause of the
Fourteenth Amendment, but we rely on art. 12 to ensure that this process is
followed in Massachusetts courts even if the Supreme Court were to declare that
procedures that place greater demands or obligations on defendants seeking
refunds are acceptable under the Fourteenth Amendment.
First, a defendant seeking a refund must
file a motion for refund in the court where he or she was convicted and mail to
or otherwise serve this motion on the office that prosecuted the conviction,
that is, the office of the Attorney General or the district attorney's
office. The motion may be filed by the
defendant or by defense counsel. If the
defendant is filing the motion pro se but was represented by an attorney in the
underlying criminal case, a copy of the motion should be sent to the defense
attorney. The defendant must swear or
attest that the information provided in support of the motion is true, based on
personal knowledge or information and belief.
This may be accomplished by submitting a verified motion, that is, a
motion where the information contained within is sworn or attested, or by
submitting with the motion an affidavit in the form of a sworn or attested
statement, letter, or application. This
verified motion or accompanying affidavit must clearly state (1) that the
defendant's conviction is no longer valid and is not subject to retrial; (2) that
the requested refund consists of fines, fees, costs, or restitution assessed
solely as a result of the invalidated conviction; (3) the amount of the
requested refund; and (4) that the defendant has paid the requested amount. 
The sworn or attested application alone is
sufficient to satisfy the defendant's burden of production. But, if possible, the defendant should
identify any docket entries reflecting his or her payment of monies, and
supplement his or her application with any other existing evidence (e.g.,
receipts or payment documents) that the defendant reasonably can locate that
tend to support the refund claim.
Once the defendant has met his or her
burden of production, the burden of proof shifts to the Commonwealth. At this point, the Commonwealth may rebut the
defendant's claims by producing evidence that the defendant is not entitled to
a refund or is entitled to a refund in an amount that differs from what he or
she requested. The Commonwealth, like
the defendant, may present evidence in the form of docket entries, receipts,
and anything else relevant to determine whether the defendant actually paid the
We place the burden of proof on the
Commonwealth rather than the defendant because doing so comports most closely
with the spirit of the Supreme Court's admonition to impose nothing "more
than minimal procedures on the refund of exactions" arising from
invalidated convictions. Nelson, 137 S.
Ct. at 1258. The defendants who file
such motions will often be representing themselves, at least initially, and their
invalidated convictions may be many years old, as with Martinez and Green. Although criminal files are public records
and defendants may gain access to them, they are more easily accessible to
prosecutors who are in the court house of conviction every day. Prosecutors also will generally be better
able than defendants to understand docket notations that, especially in older
cases, often are handwritten and too often are something less than a model of
clarity. Moreover, records of payment
may sometimes be found in places other than the court file, such as in
probation files or clerk's office files.
Prosecutors are better positioned than defendants to know where to find
these records and to obtain the cooperation needed to search them.
Where the refund or its amount is
disputed, the court shall consider the evidence offered by both parties and
determine whether the Commonwealth has met its burden to show, by a
preponderance of the evidence, that the defendant is not entitled to the refund
amount requested in his or her motion.
The court, in its discretion, may conduct an evidentiary hearing to
resolve such disputes. If the court
finds that a refund in any amount is proper, it shall issue a refund order
pursuant to the procedure described infra.
a judge determines that a defendant is entitled to a refund, how will payment
of the refund be accomplished? Under
G. L. c. 258B, § 8, where a conviction or delinquency
adjudication is "overturned on appeal," the victim-witness assessment
paid by the defendant or juvenile "shall be refunded by the court" by
deducting the funds "from the assessments transmitted to the state
treasurer." Green contends that
this protocol should govern not only the refund of victim-witness assessments
in cases where the conviction or adjudication is overturned on appeal, but the
refund of all fines, fees, and court costs required as a matter of due
process. This protocol is certainly
consistent with the Supreme Court's holding in Nelson, but there are practical
problems with adopting it beyond the statutory mandate.
Fines, fees, victim-witness assessments,
and court costs are collected by the trial court or the probation service but
are not retained by them. All such funds
are paid to the Commonwealth and, with some exceptions,  are deposited into
the general fund. See G. L. c. 29A,
§ 3 ("All fees, fines, forfeitures, penalties and any other receipts
or income of any kind paid to or received by any of the courts . . . shall be
paid into the general fund of the [C]ommonwealth except as otherwise
specifically provided by law.").
General Laws c. 258B, § 8, provides that all victim-witness
"assessments . . . shall be transmitted monthly to the state
treasurer." However, the probation
service reports that this transfer of funds now happens daily. Therefore, the ability of the courts to
refund fines, fees, and court costs by deducting funds "from the
assessments transmitted to the state treasurer" is quite limited.
But the basic elements of this protocol
still apply. It continues to be the
responsibility of the courts to order the refund of fines, fees, and court
costs where due process so requires. And
the source of payment for such refunds continues to be the Commonwealth,
generally its general fund. We will not attempt
to specify the means by which such payment is accomplished; it suffices to say
that the court must order the refund and the Commonwealth must timely comply
with that order by providing the defendant or juvenile with the money to which
he or she is entitled.
The refund of restitution, however,
requires a different protocol because restitution payments are made to the
victim of the defendant's crimes, not to the Commonwealth. In contrast with refunds of fines, fees, victim-witness
assessments, and court costs, where the Commonwealth is returning funds to
which it is no longer entitled, the Commonwealth was never entitled to payments
issued as restitution to private victims.
Where the Commonwealth, or any other governmental entity, was itself the
victim of a crime and received restitution, a judge may order the Commonwealth
or the governmental entity to refund the amount paid, and we expect that order
to be honored. But we do not address how
a court may accomplish the refund of restitution paid to a private person or
entity. We will await an appeal of a
case where restitution was paid to a private victim as a consequence of an
invalidated conviction to decide that difficult issue.
The exercise of our superintendence authority. The recognition in Nelson of a constitutional
due process obligation to refund fees, court costs, and restitution paid as a
consequence of an invalidated conviction comes at a challenging time for the
Commonwealth. Drug convictions in more
than 21,000 cases have been invalidated as a result of the misconduct of Annie
Dookhan at the Hinton laboratory, and drug convictions in thousands of other
cases have been invalidated as a result of the misconduct of Sonja Farak at the
Amherst laboratory, with even more to be invalidated as a result of our opinion
in Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 729, 735
The procedure we establish here for the
refund of fines and fees in individual cases is practicable in ordinary times,
but we recognize that it would quickly prove impracticable if a sizeable
percentage of the defendants whose convictions have been invalidated because of
Dookhan and Farak's misconduct were to seek the refunds they are due. If that were to happen, the amount of time
and effort required from judges, clerks, probation officers, prosecutors, and
defense counsel to adjudicate each individual defendant's entitlement to a
refund, and the amount of such a refund, would pose so substantial a collective
burden that it would threaten the administration of criminal justice in our
In Bridgeman II, 476 Mass. at 300, we
exercised our superintendence authority under G. L. c. 211, § 3,
to fashion a remedy for the resolution of thousands of drug cases affected by
Dookhan's misconduct through a "new protocol for case-by-case
adjudication" that occurred in three phases and was implemented by the
single justice in the form of a declaratory judgment. In Committee for Pub. Counsel Servs. v.
Attorney Gen., 480 Mass. at 705, 735, we fashioned a more global remedy under
our superintendence authority to resolve thousands of drug cases affected by
Farak's misconduct and by the subsequent prosecutorial misconduct of two
attorneys in the office of the Attorney General: we vacated the drug convictions of the
so-called Farak defendants and dismissed the drug charges against them with
We have given careful consideration to
whether we need to exercise our superintendence authority to craft another
global remedy addressing the many thousands of "Nelson" refund
motions that may be brought by the so-called Dookhan and Farak defendants. The parties at oral argument, however, have
asked us to refrain from doing so pending the anticipated settlement of a
putative class action brought in the United States District Court for the
District of Massachusetts that seeks, among other things, the refund of fines,
fees, court costs, and restitution paid as a result of invalidated drug
convictions by the putative class of Dookhan and Farak defendants. Foster vs. Commonwealth of Mass., U.S. Dist.
Ct., Civ. No. 18-10354-IT (D. Mass., filed Feb. 23, 2018, amended Sept. 6,
We will defer, for now, to allow time for
a global remedy to be crafted and for a settlement to be reached by the parties
to that litigation. But we might not be
able to defer for long because we recognize the possibility that the issuance
of this opinion may unleash a flood of "Nelson" motions for the
refund of monies paid by Dookhan and Farak defendants. Such an influx of motions might so burden our
criminal courts as to imperil the "proper and efficient
administration" of justice. See
G. L. c. 211, § 3. We
therefore direct the Attorney General and the Committee for Public Counsel
Services, no later than six months after the issuance of the opinion in this
case, to report in writing to the single justice responsible for the
implementation of the protocols established in Bridgeman II and Committee for
Pub. Counsel Servs. v. Attorney Gen. regarding the status of the putative class
action litigation. Nothing bars this
court from exercising our superintendence authority before that date if deemed
necessary to preserve the fair administration of justice.
Conclusion. We remand the cases to the reporting courts
for proceedings consistent with this opinion.
So ordered. footnotes
 We acknowledge the amicus briefs
submitted by Stacy Foster, Jamie Kimball, Jonathan Riley, Nicole Westcott, and
a proposed class of all others similarly situated.
 The record does not reflect the basis
for the order of restitution. Generally,
judges may order defendants to pay restitution only to the victims of their
crimes and only to reimburse them for "economic losses caused by the defendant's
conduct and documented by the victim."
Commonwealth v. Henry, 475 Mass. 117, 120 (2016), quoting Commonwealth
v. McIntyre, 436 Mass. 829, 834 (2002).
See also G. L. c. 258B, § 3 (o) (victims have right "to
request that restitution be an element of the final disposition of a
 The monthly fee for those placed on
supervised probation is comprised of two components: a "probation supervision fee" in
the amount of sixty dollars per month and a "victim services
surcharge" in the amount of five dollars per month. See G. L. c. 276, § 87A. For the sake of convenience, we treat these
two components as a single monthly probation fee of sixty-five dollars.
 Martinez also was ordered to forfeit
any monies found on his person at the time of his arrest, but the record does
not reflect the amount of any such monies and Martinez has not sought their
 The reported questions are:
the refund language in G. L. c. 258B, §8 apply to convictions vacated pursuant
to the global Dookhan order? If the
statute does apply, what is the showing a defendant must make to be entitled to
a refund of a victim witness fee imposed pursuant to G. L. c. 258B, § 8,
and, if a defendant makes such a showing, from what source should this payment
(2) "If G.
L. c. 258B, § 8 does not apply in these circumstances, is refund of a victim
witness fee required pursuant to Nelson v. Colorado, 137 S. Ct. 1249
(2017)? If Nelson does require refunding
victim witness fees, what is the showing a defendant must make to be entitled
to a refund of such fees, and from what source should this payment be
(3) "If a
refund is required either pursuant to the statute or pursuant to Nelson, can
the court limit the refund to $40 by redistributing $50 of the victim witness
fee to the surviving judgment on the misdemeanor offense of unlicensed
operation in violation of G. L. c. 90, § 10?
G. L. c. 258B, § 8 ($90 victim witness assessment for
felonies; $50 victim witness assessment for misdemeanors); Commonwealth v.
Zawatsky, 41 Mass. App. Ct. 392, 401 (1996) (remanding to discretion of trial
judge whether $600 of victim witness assessment lost in connection with the
vacated civil rights counts should be distributed among the surviving judgments
Nelson . . . require refunding payments assessed pursuant to G. L. c. 276,
§ 87A? If so, what is the showing a
defendant must make to be entitled to a refund of such payments, and from what
source should this payment be refunded?"
verification is needed to determine the amount to be refunded?"
Nelson . . . require refunding restitution?
If so, what is the showing a defendant must make to be entitled to a
refund of this payment, and from what source should restitution payments be
verification is needed to determine the amount to be refunded?"
 We note that the judge ordered Green
to pay a victim-witness assessment of fifty dollars on the count in the
complaint charging possession of a class B substance with intent to distribute,
in violation of G. L. c. 94C, § 32A (a), but a different judge
ordered Martinez to pay a victim-witness assessment of ninety dollars on a
count charging possession of a class A substance with intent to distribute, in
violation of G. L. c. 94C, § 32 (a).
Both are felonies within the jurisdiction of the District Court, see
G. L. c. 218, § 26, although a defendant whose case is
adjudicated in District Court may not be sentenced to State prison. See G. L. c. 218, § 27. Under G. L. c. 258B, § 8,
where a defendant is convicted of a felony, a judge "shall impose an
assessment of no less than $90"; where a defendant is convicted of a
misdemeanor, a judge "shall impose an assessment of $50." We do not address the differences in these
cases in the application of G. L. c. 258B, § 8.
 On December 3, 2008, the Commonwealth
commenced a civil action in Superior Court seeking forfeiture of the items
seized in the execution of the hotel room search warrant: $8,214 in cash, three cellular telephones, and
a laptop computer. Judgment issued on
July 22, 2009, ordering the forfeiture of these items to the Commonwealth. Green has not sought the return of these
 The judge was aware that questions had
earlier been reported in Martinez's case, and supplemented those questions with
reported questions addressing additional issues raised in Green's case "as
to the procedure to be followed for return of punitive fines imposed and what,
if any, obligation the Commonwealth has to return money ordered forfeited." The reported questions are:
(1) "Who is
the proper party to be named in a defendant's motion to return money
assessments that are dependent on a conviction that was subsequently
invalidated? Is designation of the
proper party dependent on the type of monetary assessment sought to be
refunded? In what [c]ourt should such a
motion be filed, and what, if any, entities other than the District Attorney's
office should receive notice of such a motion?"
(2) "What is
the showing a defendant must make to be entitled to a refund of punitive fines
imposed upon a conviction that has subsequently been invalidated, and from what
source should punitive fines be refunded?"
Nelson . . . require refunding money that was ordered forfeited by the criminal
court pursuant to G. L. c. 94C, § 47 (b), where the conviction in the
related criminal proceeding is subsequently invalidated and no retrial will
occur? If so, what is the showing a
defendant must make to be entitled to a refund of such forfeited moneys, and
from what source would such a refund be paid?"
 One defendant's conviction was
reversed on appeal for trial error, and she was acquitted of all charges on
retrial. Nelson, 137 S. Ct. at
1253. The other defendant's conviction
on one count was reversed on appeal, and his conviction on the other count was
vacated on collateral review. Id. The State chose not to appeal or to retry the
 A criminal conviction requires proof
beyond a reasonable doubt, but restitution may be awarded as a condition of probation
where the victim's economic loss is proved by a preponderance of the
evidence. McIntyre, 436 Mass. at 834.
 As noted earlier, see note 7, supra,
the Commonwealth obtained the forfeiture of the monies, cellular telephones,
and laptop computer seized from Green's hotel room through a proceeding in rem
filed in the Superior Court under § 47 (d), and Green does not seek the
refund of that forfeited property.
 General Laws c. 280, § 6, also
may, as a condition of the dismissal or placing on file of a complaint or
indictment, or as a term of probation, order the defendant to pay the
reasonable and actual expenses of the prosecution. A justice may impose reasonable costs as a
result of a default by a criminal defendant that was intentional or negligent
and without good cause."
 We urge the Trial Court to prepare a
simple, plain language "Motion for Refund after Invalidated
Conviction" form that would simplify the process of applying for a refund
by defendants who may not have the benefit of counsel when they file such an
 See, e.g., G. L. c. 258B, § 8
(domestic violence prevention assessment deposited into fund for domestic and
sexual violence prevention and victim assistance); G. L. c. 90, § 24 (1)
(a) (1) (operating motor vehicle while under influence victim assessment given
in part to trust fund for victims of drunk driving; operating motor vehicle
while under influence head injury assessment deposited in part into trust fund
for head injury treatment services).