NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-11
COMMONWEALTH
vs.
JSHAWN L. DURHAM.
1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The probationer appeals from the denial of his motion to
terminate and discharge probation by a judge of the District
Court, and an order finding him in violation of his probation
and extending the term of probation for another year. He argues
that he adequately established an inability to pay restitution,
ordered as a condition of probation, due to his poverty.
Concluding that the judge committed an error of law in his
application of Commonwealth v. Henry, 475 Mass. 117, 121-127
(2016), we vacate the denial and order, and remand the matter.
We review a judge's determination that a probation
violation occurred and their disposition of a probation
1
In affidavits, the probationer spelled his name "Jshawn
Durham" and "J'Shawn L. Durham." As is our custom, we spell the
probationer's name as it was spelled in the complaints.