Opinion
16-P-1073
05-23-2017
COMMONWEALTH v. Peter Anthony AMENDOLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant pleaded guilty to larceny in an amount more than $250 and to breaking and entering in the daytime. After a separate hearing, a different judge from the plea judge (second judge), ordered restitution in the amount of $94,474.46. The defendant and the Commonwealth agree that because the second judge failed to assess the defendant's ability to pay as required by Commonwealth v. Henry, 475 Mass. 117 (2016), and did not properly assess the victim's actual economic loss, the order of restitution must be vacated and the case remanded for a new determination of the appropriate amount. The defendant also contends that the evidence does not support a causal connection between his larceny conviction and the items the victim reported missing. We disagree with this contention, but agree with the parties that a new hearing on the restitution order is warranted.
Background. The defendant's guilty plea was based on the following facts. On July 14, 2013, a Foxborough police officer observed a man, subsequently identified as the defendant, with a pickup truck parked next to tractor-trailer containers. The officer observed items strewn on the ground outside the trailers. The police officer asked the man what he was doing. The man replied that he was cleaning out the trailers for his sick uncle. The man appeared nervous.
Eleven days later, police responded to a report of a theft at this same location. The victim, the owner of the trailers and their containers, stated that several locks on the trailer containers had been broken, and that various tools, tool boxes, and machinery were missing. The victim used these items in his construction business.
The defendant was charged with the theft of these items, and several weeks later, he pleaded guilty to one count of larceny in an amount more than $250 and to one count of breaking and entering in the daytime. A restitution hearing took place several months later before the second judge.
At that hearing, the Commonwealth offered the testimony of the victim. The victim provided a list of the items missing from the trailers. The list contained the date each item had been purchased and the price paid for each; the list totaled $94,474.46. Many of the items had been purchased in the 1980's and 1990's. The Commonwealth recommended that the judge impose a restitution order of at least $25,000, and the judge set restitution at $94,474.46.
Restitution order. A judge ordering restitution must first "determine the amount of the victim's actual economic loss causally connected to the defendant's crime." Commonwealth v. Henry, 475 Mass. at 121. Next, "the judge must determine the amount the defendant is able to pay." Ibid. We review a judge's restitution order for abuse of discretion or other error of law. Commonwealth v. McIntyre, 436 Mass. 829, 836 (2002).
The defendant asserts that the Commonwealth failed to prove that the defendant had stolen all of the items on the list. He contends that the police officer observed emptying items into a truck that could not possibly fit all of the items the victim claims went missing. The defendant also asserts that because eleven days had lapsed from when he was seen removing items from the trailer and the victim's report of a theft, there is insufficient evidence to establish that he is responsible for the absence of all of the items. Finally, he argues that the victim is a poor record-keeper and, therefore, some of these items the victim reports as stolen are more likely lost. We are not persuaded.
The defendant was observed by a police officer removing items from the trailers. While the officer saw the defendant with one truck, the officer did not remain on site to see whether the defendant made only trip or employed only one truck. But the officer did ask the defendant what he was doing, to which the defendant responded that he was "cleaning" out the trailers. From this reply, the judge could readily infer that it was more likely than not that the defendant emptied the trailers completely, and the victim supplied a list of all of the items contained in the trailers. As for the defendant's challenge to the victim's record-keeping, it was for the judge to resolve issues of credibility, Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 756 (2006), and he apparently credited the testimony of the victim. Accordingly, there is a legally sufficient foundation to support the judge's determination that the items the victim claimed were missing were stolen by the defendant. Therefore, we "sustain the judge's ultimate finding of causal connection." Ibid.
We turn next to the judge's assessment of the victim's actual economic loss. "If the record reveals an arbitrary method of determining the amount of restitution, the order cannot stand." Commonwealth v. Nawn, 394 Mass. 1, 7 (1985). Here, the judge accepted that the victim's representation of a $94,474.46 economic loss. However, the victim's list contained the purchase prices of items from more than twenty or thirty years ago. These figures do not represent the current fair market value or the replacement cost of the items. Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 442 (2002). Nor did the judge account for whether insurance covered any part of the loss and, if so, whether the victim was reimbursed for any deductible. Accordingly, we agree that $94,474.46 is not a proper assessment of the victim's actual economic loss.
We also agree with the parties that, in accordance with the recent guidance provided in Commonwealth v. Henry, 421 Mass. at 121, the judge was also required to determine the defendant's ability to pay. Therefore, we vacate the restitution order and, in the absence of an agreed-upon restitution recommendation by the parties, we remand the case to the District Court for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded.