Posts tagged "Henry"

Commonwealth v. Henry (Lawyers Weekly No. 10-116-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11965   COMMONWEALTH  vs.  KIM HENRY.       Essex.     February 10, 2016. – August 8, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.       Restitution.  Practice, Criminal, Probation, Restitution.  Supreme Judicial Court, Superintendence of inferior courts.       Complaint received and sworn to in the Salem Division of the District Court Department on November 7, 2013.   A proceeding to determine restitution was had before Michael C. Lauranzano, J.   The Supreme Judicial Court granted an application for direct appellate review.     Rebecca Kiley, Committee for Public Counsel Services, for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. Matthew R. Segal & Jessie J. Rossman, for the American Civil Liberties Union Foundation of Massachusetts, amicus curiae, submitted a brief.     GANTS, C.J.  This case presents two issues on appeal:  first, whether a defendant’s ability to pay should be considered by a judge in deciding whether to order restitution as a condition of probation and in deciding the amount of any such restitution; and second, where goods are stolen from a retail store, whether the amount of the victim’s actual economic loss for purposes of restitution is the replacement value or the retail sales value of the stolen goods.  As to the first issue, we hold that in determining whether to impose restitution and the amount of any such restitution, a judge must consider a defendant’s ability to pay, and may not impose a longer period of probation or extend the length of probation because of a defendant’s limited ability to pay restitution.  As to the second issue, we hold that, in cases of retail theft, the amount of actual economic loss for purposes of restitution is the replacement value of the stolen goods unless the Commonwealth proves by a preponderance of the evidence that the stolen goods would otherwise have been sold, in which case the retail sales value is the better measure of actual loss.[1] Background.  The defendant was employed as a cashier at a Walmart department store in Salem.  A Walmart video camera captured the defendant “free-bagging” items; that is, with certain customers, she placed some store items into bags without scanning the items at the cash register, so that these customers received these items without paying for them.  As a result, in November, 2013, […]

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Posted by Massachusetts Legal Resources - August 8, 2016 at 2:49 pm

Categories: News   Tags: , , , ,

Commonwealth v. Henry (and a companion case) (Lawyers Weekly No. 11-155-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-894                                        Appeals Court   COMMONWEALTH  vs.  LISTON G. HENRY (and a companion case[1]). No. 13-P-894. Barnstable.     June 3, 2015. – October 2, 2015.   Present:  Kafker, C.J., Rubin, & Milkey, JJ.   Abuse Prevention.  Alien.  Practice, Criminal, Plea, Assistance of counsel, Findings by judge.  Constitutional Law, Plea, Assistance of counsel.  Due Process of Law, Plea, Assistance of counsel.       Complaint received and sworn to in the Barnstable Division of the District Court Department on July 29, 2004.   A motion to withdraw a guilty plea and for a new trial, filed on February 28, 2013, was considered by H. Gregory Williams, J., and a motion for reconsideration was heard by him.   Complaint received and sworn to in the Barnstable Division of the District Court Department on March 17, 2005.   A motion to withdraw a guilty plea and for a new trial, filed on February 28, 2013, was considered by Joan E. Lynch, J., and a motion for reconsideration also was considered by her.     Maurice A. Reidy, III, for the defendant. Elizabeth Anne Sweeney, Assistant District Attorney, for the Commonwealth.      KAFKER, C.J.  The defendant, Liston G. Henry, appeals from the denials of his motions to withdraw his 2004 and 2005 guilty pleas to two violations of G. L. c. 209A abuse prevention orders and one count of witness intimidation.  He claims to have received ineffective assistance of counsel regarding the immigration effects of pleading guilty to the charges, as he was not informed that the abuse prevention order violations were deportable offenses and because the defendant, then a lawful permanent resident of the United States, was consequently deported to Jamaica in 2013 and thereby separated from his extended family in the United States.  We vacate the orders denying the defendant’s motions to withdraw his pleas and remand for further factual findings on both motions. 1.  Background.  According to the application for the first complaint, on July 29, 2004, Yarmouth police officer Sean Brewer was dispatched to the home of Robin Edwards.  Edwards reported that she had an active restraining order against the defendant, who is her former boy friend and the father of her son.  The restraining order in question, which included a no-contact provision, had been issued from the Probate and Family Court and served in-hand on the defendant the previous day, July 28, 2004.  Edwards […]

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Posted by Massachusetts Legal Resources - October 2, 2015 at 3:34 pm

Categories: News   Tags: , , , , , ,