Opinion
11-P-147
03-12-2012
COMMONWEALTH v. ERIC J. LEBLANC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of restitution arising from thefts by him and his coventurer. On appeal, the defendant contends that the evidence was insufficient to support a restitution order and that the judge failed to consider the defendant's ability to pay. We affirm.
The criminal docket reflects that rather than imposing joint and several liability for restitution in the amount $14,391.67 on the defendant and his coventurer (Mr. Grover), the judge only ordered the defendant to pay $7,195.33. We accept the Clerk's minutes as an accurate reflection of what transpired at the restitution hearing. Compare Tr. 24 ('in Mr. Grover's case, restitution [is] in the amount of $7,195.33').
The restitution hearing followed the defendant's plea of guilty to three counts each of breaking and entering and of larceny over $250 in connection with thefts from a coin and hobby store on September 29, October 10, and October 24, 2008. At the hearing, Patricia LeBlanc, the victim and grandmother of the defendant, testified to the robberies and the taking of coins and other items during the robbery.
In ordering restitution, the judge found Ms. Leblanc's testimony to be 'credible in all material senses,' and that she and her business 'kept meticulous records and detailed records.' He also found that the 'arrival of the restitution figure is based in fact, and the records involved based on sound business practices.' We discern no abuse of discretion or other error of law. See Commonwealth v. McIntyre, 436 Mass. 829, 836 (2002). Although proof of the losses was not perfect (the receipts given to the Commonwealth by Ms. LeBlanc were unable to be located), Ms. LeBlanc's testimony, the inventories for 2007 and 2008, and other evidence introduced at the restitution hearing sufficed to support a restitution order. See Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 755-756 (2006) (strict evidentiary rules do not apply at restitution hearings; 'process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial' [citation omitted]). The Commonwealth met its burden of proving the victim's losses and their amount by a preponderance of the evidence, and proving a causal connection between the defendant's action and the victim's losses or damage. See Commonwealth v. Amaral, 78 Mass. App. Ct. 557, 559 (2011).
There is no merit to the defendant's contention that the judge erred by imposing restitution without considering the defendant's ability to pay. See Commonwealth v. Nawn, 394 Mass. 1, 8-9 (1985); Commonwealth v. Morris M., 70 Mass. App. Ct. 688, 697-698 (2007). Indeed, the judge considered the defendant's current incarceration and its bearing on his ability to pay, and noted that the defendant's obligation to repay would 'not ripen until such time as his probation is due to terminate, and . . . [i]f it is deemed necessary, the probation may be extended to a point where [the defendant] would be able to satisfy his obligations.'
Order of restitution affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),