Commonwealth v. Buckley

• Citation: 57 N.E.3d 1051,90 Mass.App.Ct. 177
• Decision Date: 08 September 2016
• Docket Number: No. 15–P–734.,15–P–734.
• Parties: COMMONWEALTH v. Thomas E. BUCKLEY, Third.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 177

57 N.E.3d 1051

COMMONWEALTH

v.Thomas E. BUCKLEY, Third.

No. 15–P–734.

Appeals Court of Massachusetts, Berkshire.

Argued June 1, 2016.

Decided Sept. 8, 2016.

Matthew J. Koes for the defendant.

Megan L. Rose, Assistant District Attorney, for the Commonwealth.

Present: KATZMANN, MEADE, & AGNES, JJ.

AGNES

, J.

Victims of crime have the right to request that the sentence in a criminal case include an order that the defendant pay restitution to make up for the economic loss they suffered as a result of the defendant's criminal conduct.¹ “[T]he scope of restitution is limited to ‘loss or damage [that] is causally connected to the offense and bears a significant relationship to the offense.’ ”² Commonwealth v. McIntyre, 436 Mass. 829, 835, 767 N.E.2d 578 (2002), quoting from Glaubius v. State, 688 So.2d 913, 915 (Fla.1997).

In the present case, the defendant, Thomas E. Buckley, III, pleaded guilty to one count of larceny of a motor vehicle in violation of G.L. c. 266, § 28(a )

. After a hearing, the judge ordered the defendant to pay restitution in the amount of $3,000 for the loss of the victim's vehicle. On appeal, the defendant raises two issues relating to the restitution order: (1) whether intervening acts of negligence by third parties following the commission of the crime broke the causal chain and should relieve the defendant of the obligation to pay restitution; and (2) whether an agreement between the parties as to the approximate amount of economic loss is a sufficient basis upon which the judge may make an order of restitution. We answer the first question “no,” and the second question “yes.” Accordingly, we affirm.

Background. The essential facts are not in dispute. On July 14, 2014, the defendant was in the parking lot of a grocery store when he took possession of the victim's vehicle. The defendant claimed that someone had paid him to move a vehicle to an automobile wrecker, and he had mistakenly taken the defendant's vehicle. The defendant drove the vehicle first to an automobile wrecker and then to a liquor store parking lot, where it was eventually recovered. After he was seen on a surveillance video, the defendant was arrested. He immediately told the police where to find the vehicle.

Although the vehicle was located within one or two days of its theft, due to some misinformation or a misunderstanding regarding the victim's contact information, the victim was not immediately notified that his vehicle had been recovered.³ Because of the miscommunication, it was several months later, when the victim appeared for trial, that he discovered that the police had recovered his vehicle. In the interim, the victim had purchased a replacement vehicle.

During the several months prior to trial, the victim's vehicle had been stored at an auto-body shop and had accumulated roughly $3,036 in storage, mileage, and towing fees. Because the victim was unable to pay the fees, he ultimately transferred ownership of the vehicle to the shop.

After the defendant pleaded guilty, he was sentenced to six months' probation and was ordered to pay various fines and restitution. At the restitution hearing, the judge inquired as to the “book value” of the stolen vehicle, a 1993 Honda Accord. The Commonwealth responded, “Your Honor, I believe we made an approximation last time that it was ... a little under ... what the storage fees were, but we don't have a full book value.”⁴ Defense counsel stated, “there's no dispute as to that” and the issue was simply a “question of what [the defendant] would be capable of paying.” The Commonwealth requested $3,036 in restitution, the amount of the fees incurred.

The defendant argued principally that the Commonwealth had not met its burden to prove that the defendant's conduct was causally related to the victim's economic loss. In particular, he argued that the intervening negligence on the part of the police department, not the defendant's crime, was the proximate cause of the victim's loss because the defendant immediately disclosed the vehicle's location to the police and the intervening negligence was not foreseeable.

The judge ordered the defendant to pay $3,000 in restitution. In a written memorandum, the judge noted that “the authorities could have done a better job in reuniting the victim with his car in a timely fashion,” but ultimately concluded that “BUT FOR the defendant's criminal action, the victim would not have incurred any loss.” He emphasized that the victim was not culpable in any way for the loss. The judge noted that “the parties agreed that the ‘book value’ of the vehicle was approximately $3,000,” and he used that amount to set the restitution order.

Discussion. We review orders of restitution for abuse of discretion or error of law. Commonwealth v. McIntyre, 436 Mass. at 836, 767 N.E.2d 578

.⁵

1. The Commonwealth met its burden to prove that the defendant caused the victim's economic loss. In McIntyre, the Supreme Judicial Court adopted the test for causation in restitution cases enunciated by the Florida Supreme Court in Glaubius: “the scope of restitution is limited to ‘loss or damage [that] is causally connected to the offense and bears a significant relationship to the offense.’ ”⁶ Commonwealth v. McIntyre, supra at 835, 767 N.E.2d 578

, quoting from Glaubius v. State, 688 So.2d at 915. Although our appellate courts have not had occasion to explain this standard since the decision in McIntyre, the Florida Supreme Court did revisit the issue in Schuette v. State, 822 So.2d 1275 (Fla. 2002). In Schuette, supra at 1283, the court held that the criminal offense of driving with a suspended license was not, by itself, the cause in fact of the damage that resulted when the defendant's vehicle collided with the victim's vehicle, and thus an order of restitution against the defendant could not be entered because there was no evidence connecting his criminal conduct to the victim's economic loss. The court explained that the requirement of a “significant relationship” between the defendant's criminal conduct and the victim's economic loss is another way of describing the traditional requirement of proximate cause. Id. at 1282

. See Paroline v. United States, ––– U.S. ––––, 134 S.Ct. 1710, 1719, 188 L.Ed.2d 714 (2014) (“[T]o say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result”). With the benefit of this additional guidance, we regard the test for causation in restitution cases formulated in McIntyre to require that the Commonwealth establish by a preponderance of the evidence that the defendant's criminal conduct was the cause in fact of the economic injury suffered by the victim, and that the victim's losses were a reasonably foreseeable consequence of the defendant's conduct.

Here, the judge found on the uncontroverted facts that the defendant stole the victim's vehicle and that the defendant's conduct was therefore the factual cause of the economic loss suffered by the victim, in the sense that the defendant set in motion a chain of events that resulted in the loss of the victim's vehicle. The same finding also satisfies the requirement of reasonable foreseeability, because when the property of another is stolen, it is certainly foreseeable that the victim may not recover it.⁷

The defendant urges us to recognize a limitation on the scope of restitution that would bar recovery in cases, such as this one, in which the negligent acts of persons who intervene or become involved in the case after the defendant's criminal conduct break the causal connection between the defendant's criminal conduct and the victim's economic loss. In particular, the defendant argues that, apart from and subsequent to his conduct in stealing the victim's vehicle, the victim's economic loss was caused by the failure of the victim and others to comply with three requirements imposed by G.L. c. 266, § 29

:⁸ first, the failure of the police to notify the victim that his vehicle had been recovered; second, the failure of the auto-body shop to notify the victim, as the owner of record, in writing that it was storing the victim's vehicle and the amount of the storage fees; and third, the victim's failure, as the owner of record, to notify the police in writing that his vehicle had been stolen.

Even if we assume, without deciding, that each of these omissions represents an act of negligence that occurred subsequent to the defendant's criminal conduct and that each omission contributed to the victim's economic loss, the defendant's argument fails. The defendant has not offered any authority for the view that negligent acts of the victim or third parties that occur after the defendant's criminal conduct break the causal connection that otherwise would support an order of restitution. The only case cited by the defendant, Commonwealth v. Carlson, 447 Mass. 79, 849 N.E.2d 790 (2006)

, is inapposite. There, the defendant was prosecuted for motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b ). Id. at 79–80, 849 N.E.2d 790. The victim, who suffered severe chest and lung injuries as a result of the defendant's negligent and criminal conduct, died four days after the accident of respiratory failure as a result of her voluntary and entirely lawful decision to forego intubation and respiratory support by means of a ventilator. See id. at 80–82, 849 N.E.2d 790. There was competent medical evidence that the victim would have survived if she had submitted to mechanical ventilatory support and might have returned to the condition that she was in before the defendant's criminal conduct. Id. at 82, 849 N.E.2d 790. In rejecting the defendant's argument that the Commonwealth had failed to prove that she caused the death of the victim, the court explained that “[t]he general rule is that intervening conduct of a third party will relieve a defendant of culpability for antecedent negligence only...