author: Bradford, Judge

text:
    Ronnie RICKETTS, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-444
    Court of Appeals of Indiana.
    Filed August 20, 2018
    Attorneys for Appellant: Scott L. Barnhart, Brooke Smith, Keffer Barnhart LLP, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana
   Bradford, Judge

Case Summary

[1] In March of 2017, Ronnie Ricketts, Jr., located his domestic partner Sarah Metcalf eating dinner with two men at an Evansville mission, one of whom Ricketts had told Metcalf not to see anymore. Ricketts told the two men that they were dead, retrieved two handguns from his vehicle parked outside, and shot out a window of the mission when he found the door barred. The State charged Ricketts with Level 2 felony burglary. In late November and early December of 2017, Ricketts requested that he be allowed to dismiss his public defender and continue pro se . After Ricketts explained to the trial court that he had been diagnosed with several mental illnesses and that his medications were no longer effective, the trial court denied Ricketts's request to proceed pro se . A jury convicted Ricketts as charged, and the trial court sentenced him to seventeen and one-half years of incarceration. Ricketts contends that the trial court erred in denying his request to represent himself and that his sentence is inappropriately harsh. Because we disagree with both contentions, we affirm.

Facts and Procedural History

[2] On March 2, 2017, Maurice Huffman, Huffman's mother, James Smith, and Metcalf were eating dinner together in the dining hall at the Evansville Rescue Mission. There were "a lot" of children volunteering in the Rescue Mission that day. Tr. Vol. II p. 235. Metcalf had had sexual intercourse with Smith on a single occasion, and Ricketts, the father of Metcalf's infant daughter and with whom she had been romantically involved for approximately four years, had previously told Metcalf not to associate with Smith anymore. As the quartet was eating, Ricketts came into the hall, called Metcalf a "lying whore[,]" and told Huffman and Smith that if they did not leave her alone "[they] would be dead." Tr. Vol. II pp. 57, 176. According to Smith, Ricketts entered the hall; said "this is how it's f-ing going to be" to Metcalf; and told Smith and Huffman, "you are both going to die now[.]" Tr. Vol. II p. 67.

[3] Metcalf followed Ricketts outside as he retrieved two handguns from his vehicle. Despite Metcalf begging him to stop, Ricketts tried to reenter the Rescue Mission, and, when he discovered that he could not reenter through the door, shot out a window and stepped through. Smith ran to the kitchen and Hoffman ran out the back door and hid behind a dumpster. Ricketts searched for Smith and Hoffman without success, returned to his vehicle, and drove off. After a vehicular pursuit, police apprehended Ricketts in front of his home.

[4] Ricketts told police after his arrest that he and Metcalf had been together for four years and that he had gone to the mission to see if she was lying to him. Ricketts told an interviewer that

[t]he first time when I went in, and I seen her with 'em, and I got pissed. I went back out to the truck got [the handguns]. They shut me out with the door-the wooden doors, so I shot the window out. I didn't shoot at nobody. I didn't hurt nobody. I shot the window out. Kick-pushed it through, and went through it and went after 'em.

State's Ex. 40. The interviewing detective asked Ricketts if he told both Smith and Huffman that he was going to kill them, to which Ricketts responded, "You're damn right I did." State's Ex. 40. When the detective asked, "if you would have found them would you have shot them?", Ricketts replied, "Oh, yeah." The detective then asked or stated, "You-you wanted to kill them[,]" to which Ricketts replied, "Yeah." State's Ex. 40. On March 6, 2017, the State charged Ricketts with Level 2 felony burglary.

[5] At a hearing on November 28, 2017, Ricketts told the trial court that he wished to proceed pro se because trial counsel had agreed to delays in the case and had been unsuccessful in having his bail reduced. The trial court denied Ricketts's request to proceed pro se . At a hearing on December 4, 2017, Ricketts again indicated that he wanted to proceed pro se . Ricketts's trial counsel indicated that Ricketts wanted to be added to the trial court's calendar because he wanted "to make a record that he wishes to proceed pro-se[,]" the hearing the previous week had been before a substitute judge, and "there's a stronger record that needs to be laid." Tr. Vol. II p. 22. The following exchange occurred:

THE COURT: Okay you do not want [trial counsel] to represent you?
[Ricketts]: No, sir.
THE COURT: Okay do you want to tell me why?
[Ricketts]: Not really a reason. [J]ust that she hasn't been doing nothing. I've been in here for nine months. I've had [a] heart attack, and my health issues are pretty bad, and my other stuff's going on and-
THE COURT: Okay.
[Ricketts]: I don't think she's been doing what she should do to try and get me out.
THE COURT: Well it's not up to her whether you get out. That's up to the court. Uh, have you ever represented yourself before?
[Ricketts]: No, sir. This is the first time I've ever been in jail.
THE COURT: Okay. Well the-do you have any familiarity with the rules of evidence or the trial procedures, court procedures anything like that?
[Ricketts]: Not really. We got the law books in here though.
THE COURT: Do you understand that it's almost always unwise to represent yourself?
[Ricketts]: Yes, like I said, it's my first time, sir. I'm not-.
THE COURT: Okay. That throughout the trial the State of Indiana will be represented by an experienced legal counsel. I'm not sure in your case who that is, but someone who has legal training, and that they will, um, be they are representative. And that will be held-uh, I-the Court will be required, as a matter of law, to hold you to the same standards. I can't let you violate the rules of evidence, or trial procedure, or anything in that way-nature. You're going to have to present your case according to the law. You understand that?
[Ricketts]: Yes, sir.
THE COURT: Um, that I can't give you any other special indulgence. I can't give you-change your sentence because you represented yourself. You can't get a more serious sentence, but you also can't get a lesser sentence. Do you understand that?
[Ricketts]: Yes, sir.
THE COURT: Lawyers can-have been trained on how to question witnesses, cross-examine witnesses, gather evidence, objective [sic ] evidence, identify evidence that might be harmful, or illegally obtained by the government, and move[ ] to suppress or exclude that evidence in ways that I'm pretty confident you're not capable of right now. Do you understand that?
[Ricketts]: Yes, sir.
THE COURT: Um, have you ever-have you ever been found mentally incompetent for any reason?
[Ricketts]: I got out of the military on mental health issues.
THE COURT: Okay what-what generally speaking what were they?
[Ricketts]: Uh, depression, personality disorder, and PTSD.
THE COURT: Do you currently take medication for that?
[Ricketts]: Yes, sir. I've been seeing a therapist-a psychiatrist for-well off and on for twenty years. But I've also been seeing them at the VA for the last six years.
THE COURT: Okay.
[Ricketts]: On a regular basis.
THE COURT: All right. Does any of that medication interfere with your thinking?
[Ricketts]: It don't-it hasn't been helping, the stuff I've been taking. I told my therapist before this happened that my medicine wasn't working and I was needing to get something stronger, and then this happened.
THE COURT: Okay.
[Ricketts]: Also on pain medication and about six other different medications. Anxiety medication, and stuff like that too.
THE COURT: Is that going to interfere with your ability to, uh, represent yourself? Concentrate on the case? Do the research that's necessary? Look up, you know, the relevant law and facts, and-?
[Ricketts]: It could sir. I'm not for sure. Like, I said I've never had to do anything like this before.
THE COURT: Well if there's a possibility that that's going to interfere, how are you going to do that if you're representing yourself?
[Ricketts]: I have no idea sir.
THE COURT: Okay.
[Ricketts]: I will just have to do the best I can.
THE COURT: What makes you think you-um, how far did you go in school?
[Ricketts]: I graduate[d] high school and took a couple years of automotive school at Ivy Tech College.
THE COURT: Okay can you-okay. And how long were you in the arm-were you in the army?
[Ricketts]: Yes sir. I was Army Military Police for three years before I got out on the medical, and then I got back and went into the Indiana National Guard for six years and got out in 2004.
THE COURT: Okay. Have you ever seen a final argument or an opening statement given in a criminal case?
[Ricketts]: We did it in high school once, sir.
THE COURT: All right. Have you-
[Ricketts]: It's been a while back.
THE COURT: Have you ever been in a courtroom for any reason?
[Ricketts]: No sir.
THE COURT: All right I'm going to deny your request Mr. Ricketts. I'm not confident you can represent yourself adequately. You're entitled to a fair trial, uh, it's been my experience that most people who represent themselves just screw up their case big time. That generally speaking, would not be enough. If that was all there was to it I'd probably let you go ahead and represent yourself, but the mental problems, the emotional issues, those kind of things will intensify the pressure as a trial gets closer. Um, trials are [an] immensely [ ] nerve-racking experience for everyone involved, and that will not help whatever mental condition or emotional problems that you are suffering from. I'm afraid that you would-might for lack of a better term, come un-come undone during the trial and then end up either saying or doing something that would devastate your case.

Tr. Vol. II pp. 22-27. The case proceeded to trial on January 8 and 9, 2018, after which the jury found Ricketts guilty as charged.

[6] On February 9, 2018, the trial court held a sentencing hearing. The trial court found Ricketts's basically-law-abiding life before the instant offense to be mitigating. The trial court found the facts and circumstances of the offense to be aggravating and sentenced Ricketts to the advisory term of seventeen and one-half years of incarceration.

Discussion and Decision

I. Right to Self-Representation

[7] Ricketts contends that the trial court erroneously denied him his right to self-representation. "The Sixth Amendment guarantees a mentally competent defendant the right to represent himself in a criminal trial, no matter how foolish that choice may seem." Imani v. Pollard , 826 F.3d 939, 941 (7th Cir. 2016) (citing Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ). The trial court "must determine that the defendant's waiver of counsel is knowing, voluntary, and intelligent." Wilson v. State , 94 N.E.3d 312, 320 (Ind. Ct. App. 2018). There are no "talking points" a trial court is required to use, but it must advise a defendant of the "dangers and disadvantages of proceeding without counsel" and "come to a 'considered determination' that the defendant is making a knowing, voluntary, and intelligent waiver of his right to counsel." Id. at 320-21 (citing Poynter v. State , 749 N.E.2d 1122, 1126 (Ind. 2001) ). However, if the request is timely, a trial court cannot deny a competent individual the right to represent himself. Imani , 826 F.3d at 941.

[8] That said, "a trial court may deny a defendant's request to act pro se when the defendant is mentally competent to stand trial but suffers from severe mental illness to the point where he is not competent to conduct trial proceedings by himself." Edwards v. State , 902 N.E.2d 821, 824 (Ind. 2009). This determination "involve[s] a fact-sensitive evaluation of the defendant's capabilities that the trial court is best-situated to make." Id. "Indeed, the [United States] Supreme Court noted in [ Indiana v. Edwards , 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008),] that 'the trial judge [...] will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.' " Id. (quoting Edwards , 554 U.S. at 177, 128 S.Ct. 2379 ). A trial court's "determination of competence to act pro se will be reviewed under the clearly erroneous standard." Edwards , 902 N.E.2d at 824.

[9] Keeping in mind the difficult task Ricketts has on appeal, we conclude that he has failed to establish clear error. The record indicates that Ricketts was suffering from many severe mental illnesses prior to trial and that his treatments were no longer effective. Ricketts told the trial court that he had been discharged from the military for his mental health issues; was suffering from depression, personality disorder, PTSD, and anxiety; and had been receiving psychiatric care for twenty years with regular care for the past six. Significantly, Ricketts also indicated that his medications had ceased to be effective before the events of March 2, 2017, and there is no indication that that situation had been remedied during his incarceration. Ricketts admitted that his mental health issues could interfere with his ability to represent himself and that he had "no idea" how he would be able to represent himself if they did. Tr. Vol. II p. 26. Ricketts's representations regarding his inadequately-treated mental illnesses and his admissions as to their potential effect on his ability to defend himself support a conclusion that he was not competent to proceed pro se . Moreover, the trial court was in the best position to make a first-hand evaluation of Ricketts's mental state based on its interactions with him. Given the trial court's familiarity with Ricketts and its opportunity to observe him in person, we are doubly reluctant to second-guess its conclusion that he was not competent to represent himself at trial.

[10] The record indicates that the trial court clearly understood that it could not deny Ricketts the right to represent himself simply because it would be a bad idea. In this case, however, there was more, as Ricketts had mental and emotional health issues that the trial court concluded would likely intensify as trial approached, generating a distinct possibility that Ricketts would come "undone" under the pressure. Based on the record before the trial court, none of this approaches the level of clear error. Under the circumstances of his case, Ricketts has failed to establish that the trial court's decision in this regard was clearly erroneous.

II. Sentence

[11] Ricketts contends that his seventeen-and-one-half-year advisory sentence for Level 2 felony burglary is inappropriately harsh. We "may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). "Although appellate review of sentences must give due consideration to the trial court's sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied." Shouse v. State , 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted). In addition to the "due consideration" we are required to give to the trial court's sentencing decision, "we understand and recognize the unique perspective a trial court brings to its sentencing decisions." Rutherford v. State , 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Indiana Code section 35-50-2-4.5 provides, in part, that "[a] person who commits a Level 5 felony [...] shall be imprisoned for a fixed term of between ten (10) and thirty (30) years, with the advisory sentence being seventeen and one-half (17 ½) years."

[12] The nature of Ricketts's crime weighs against his sentence being inappropriate. As the trial court observed, it was only necessary for Level 2 felony burglary that Ricketts be armed with a deadly weapon when he broke and entered the Rescue Mission; thus, firing one of his handguns goes beyond the acts necessary to prove the crime with which he was charged. As for the nature of the Ricketts's actions, he, motivated by jealousy and admittedly with the intent to kill Smith and Huffman, armed himself with two loaded handguns and shot his way into the Rescue Mission when he found the way barred. Smith and Huffman, as well as the many children volunteering in the Rescue Mission at the time, scrambled for their lives. Although Ricketts fortunately did not injure anybody, he broke into the Rescue Mission fully intending to shoot Smith and Huffman, and his shot through the window certainly could have injured anyone who might have been nearby. Moreover, Ricketts's offense has had an ongoing negative effect on the Rescue Mission and those that it serves, many of whom are homeless and have no other place to go. Following Ricketts's offense, many groups that had planned to send children to volunteer at the Rescue Mission have cancelled, and parents of some child volunteers indicated that they would not be returning. The egregious nature of Ricketts's offense, which was far more serious than needed to support the charge against him, justifies his advisory sentence.

[13] As for Ricketts's character, the egregious and very dangerous nature of his offense does not speak well of it. Despite several witnesses testifying at sentencing on Ricketts's behalf, generally indicating that he was a good father, neighbor, and/or friend, his character was such that he was willing to sacrifice the well-being of his infant daughter to exact revenge on Smith and Huffman. Although we also acknowledge that Ricketts has no prior felony convictions, we cannot say that his past ability to more-or-less follow the law is sufficient to render his seventeen-and-one-half-year sentence inappropriate. Ricketts has failed to establish that his sentence is inappropriate.

[14] We affirm the judgment of the trial court.

Bailey, J., and Mathias, J., concur.


source: Caselaw Access Project

author: May, Judge.

license: Public Domain

text:
    Jeremy SCHMITT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 83A04-1711-CR-2720
    Court of Appeals of Indiana.
    FILED September 10, 2018
    Appellant Pro Se: Jeremy Schmitt, Carlisle, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] Jeremy Schmitt, pro se , appeals the denial of his petition to modify sentence. We reverse and remand.

Facts and Procedural History

[2] On April 28, 2004, the State charged Schmitt with murder and Class A felony conspiracy to commit murder. On March 28, 2005, pursuant to a plea agreement, the trial court accepted Schmitt's guilty plea and sentenced him to fifty years for Class A felony conspiracy. Schmitt appealed the sentence, and we affirmed in a memorandum decision. Schmitt v. State , No. 83A01-0507-CR-321, 849 N.E.2d 176 (Ind. Ct. App. May 31, 2006) (mem. dec.), trans. denied .

[3] On May 11, 2009, Schmitt filed a petition for modification of his sentence. The State objected. The trial court denied his petition on May 29, 2009. On November 30, 2012, Schmitt filed a petition for post-conviction relief that was denied. Schmitt appealed the denial, and we affirmed. Schmitt v. State , No. 83A05-1409-PC-425, 2015 WL 4875793 (Ind. Ct. App. Aug. 14, 2015) (mem. dec.), trans. denied .

[4] On April 29, 2014, Schmitt filed another petition for modification of his sentence. The trial court ordered an evaluation be prepared by the Department of Correction ("DOC"). The State objected to the modification. On August 21, 2014, the trial court denied the petition.

[5] On May 15, 2017, Schmitt filed another petition for modification of his sentence wherein he lists the many programs, educational and employment, that he has completed while incarcerated. The State objected to the modification. Prior to a ruling, on September 18, 2017, Schmitt filed a motion to reconsider. The trial court denied the petition, stating:

Defendant herein filed his Petition for Modification of Sentence to which the State responded and thereafter Defendant filed a Motion to Reconsider such sentence modification. Defendant according to his Petitions has made positive strides during his incarceration which are to be complimented. However the Court finds that such Petition should be and hereby is denied.

(App. Vol. II at 41.)

Discussion and Decision

[6] Generally, we review denial of a motion to modify a sentence for an abuse of discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). However, we "review matters of statutory interpretation de novo because they present pure questions of law." State v. Brunner, 947 N.E.2d 411, 416 (Ind. 2011), reh'g denied.

[7] At issue in this case is Indiana Code section 35-38-1-17, which defines when a trial court has authority to modify a sentence. Prior to July 1, 2014, the statute provided a defendant who had served more than 365 days of his sentence could move to have his sentence modified by the trial court, "subject to the approval of the prosecuting attorney. " Ind. Code § 35-38-l-17(b) (2013) (emphasis added). Thus, if the prosecutor did not approve, the trial court had no authority to modify a sentence.

[8] Effective July 1, 2014, our legislature eliminated the need for the prosecuting attorney's approval. See I.C. § 35-38-l-17(c) (2014) (providing, after defendant has served 365 days, court has authority to reduce or suspend sentence to a sentence available at the time of sentencing and "court must incorporate its reasons in the record"). However, another statute that also took effect in 2014 made the new version of Indiana Code section 35-38-1-17 inapplicable to "(1) penalties incurred; (2) crimes committed; or (3) proceedings begun; before [July 1, 2014]. Those penalties, crimes, and proceedings continue and shall be imposed and enforced under prior law as if [the new sentencing laws] had not been enacted." I.C. § 1-1-5.5-21(a) (2014). Accordingly, if Schmitt, who was sentenced in 2005, had petitioned for sentence modification after July 1, 2014, the court could not have modified his sentence without the prosecutor's approval. See, e.g., Swallows v. State, 31 N.E.3d 544, 547 (Ind. Ct. App. 2015) (holding defendant sentenced in 1989 had no right to sentence modification without prosecutor's approval under 2014 version of Ind. Code section 35-38-1-17 ), trans. denied, superseded by statutory amendment.

[9] Public Law 164-2015 amended Indiana Code section 35-38-1-17 to explicitly provide the sentencing relief available therein applied retroactively to "a person who: (1) commits an offense; or (2) is sentenced; before July 1, 2014." I.C. § 35-38-1-17(a) (2015) ; see also Vazquez v. State, 37 N.E.3d 962, 964 (Ind. Ct. App. 2015) (discussing statutory change). Therefore, the statute, as currently written, applies to Schmitt and he was eligible to petition the trial court for reduction or suspension of his sentence twice without the approval of the prosecuting attorney. See I.C. § 35-38-1-17(j) (2015) (a convicted person not designated a violent criminal may file a maximum of two petitions for sentence modification with not more than one petition in any 365-day period).

[10] The current version of Indiana Code section 35-38-1-17 states, in pertinent part:

(a) Notwithstanding IC 1-1-5.5-21, this section applies to a person who:
(1) commits an offense; or (2) is sentenced;
before July 1, 2014.
* * * * *
(e) At any time after:
(1) a convicted person begins serving the person's sentence; and
(2) the court obtains a report from the department of correction concerning the convicted person's conduct while imprisoned;
the court may reduce or suspend the sentence and impose a sentence that the court was authorized to impose at the time of sentencing. However, if the convicted person was sentenced under the terms of a plea agreement, the court may not, without the consent of the prosecuting attorney, reduce or suspend the sentence and impose a sentence not authorized by the plea agreement. The court must incorporate its reasons in the record.
* * * * *
(h) The court may deny a request to suspend or reduce a sentence under this section without making written findings and conclusions.
* * * * *
(j) This subsection applies only to a convicted person who is not a violent criminal. A convicted person who is not a violent criminal may file a petition for sentence modification under this section:
(1) not more than one (1) time in any three hundred sixty-five (365) day period; and
(2) a maximum of two (2) times during any consecutive period of incarceration;

without the consent of the prosecuting attorney.

Requirement to Obtain a Report or Hold a Hearing

[11] Schmitt argues the trial court erred by not ordering the DOC to produce a new progress report and by not holding a hearing. Schmitt asserts these failures show "the trial court never intended to consider Schmitt's rehabilitative efforts." (Br. of Appellant at 11.)

[12] In Robinett v. State , 798 N.E.2d 537 (Ind. Ct. App. 2003), trans. denied , Robinett appealed the denial of his petition to modify sentence because the trial court had "summarily denied his motion ... without a hearing and without a response from the prosecuting attorney." Id. at 538. We held the trial court was required to notify the prosecutor and to hold a hearing only if it had made a preliminary determination to reduce or suspend the petitioner's sentence. Id. at 539 (quoting Reichard v. State , 510 N.E.2d 163, 167 (Ind. 1987) ).

[13] The current version of Indiana Code section 35-38-1-17 states, in pertinent part:

(f) If the court sets a hearing on a petition under this section, the court must give notice to the prosecuting attorney and the prosecuting attorney must give notice to the victim (as defined in IC 35-31.5-2-348 ) of the crime for which the convicted person is serving the sentence.
* * * * *
(i) The court is not required to conduct a hearing before reducing or suspending a sentence under this section if:
(1) the prosecuting attorney has filed with the court an agreement of the reduction or suspension of the sentence; and
(2) the convicted person has filed with the court a waiver of the right to be present when the order to reduce or suspend the sentence is considered.

[14] The 2014 and 2015 amendments changed multiple parts of this statute, but the modifications do not appear to have imposed a requirement for a hearing if the court intends to deny the petition. Because the statute provides no indication the legislature intended to overturn or modify the court's holding in Robinett , we presume the legislature intended to keep that law intact. See, e.g., Layman v. State , 42 N.E.3d 972, 978 (Ind. 2015) (where legislature modifies statute without impacting case law holdings, legislature has acquiesced to the validity of the holdings).

[15] The trial court here did not indicate it had made a preliminary determination to reduce or suspend Schmitt's sentence. The trial court did order the prosecutor's office to respond to Schmitt's petition but did not indicate in any way that it was considering granting the petition. Schmitt included in his petition and in his motion for reconsideration all the educational and employment opportunities he had pursued while incarcerated. The trial court's order praised Schmitt's "positive strides," (App. Vol. II at 41), which demonstrates the court acknowledged Schmitt's recitation of those pursuits. Three years earlier, the trial court had ordered a progress report from the DOC, and that report verified most, if not all, the programs Schmitt had pursued while incarcerated. However, without a preliminary determination to grant Schmitt's petition, the trial court was not required to hold a hearing or request another progress report from the DOC. See Robinett , 798 N.E.2d at 539 (trial court is not required to hold a hearing if it has not made a preliminary decision to reduce or suspend a sentence).

Prosecutorial Consent

[16] Schmitt argues the State's objection to his petition "did not preclude the trial court from granting a sentence modification." (Br. of Appellant at 8.) While he originally based his argument on the sections of the statute regarding violent criminals, in his reply brief he argues we are bound by Woodford v. State , 58 N.E.3d 282 (Ind. Ct. App. 2016), which held petitions for modification filed prior to the effective date of the 2015 amendment of Indiana Code section 35-38-1-17 did not count toward the two petitions a petitioner could file without prosecutorial consent pursuant to subjection (j)(2) of that statute. Therefore, according to Schmitt, although he has filed three petitions to modify since being sentenced in 2005, only one of those was filed after the 2015 amendment, such that prosecutorial consent was not required for the court to grant his current petition.

[17] The State acknowledges the Woodford holding, but argues Schmitt has exceeded the limit on petitions that can be filed without prosecutorial consent. In support thereof, the State cites Vazquez , 37 N.E.3d at 964 (holding number of petitions includes pre-amendment petitions and petitioner is required to acquire prosecutorial consent if total greater than two). To determine which case to follow, we review each in more detail.

[18] In 2014, Vazquez filed his third petition to modify, and his last two petitions were filed within three months of one another. Id. at 963. The trial court deemed the third petition untimely and dismissed the petition. Id. Vazquez appealed asserting, in pertinent part, the amended statutes regarding sentence modifications should apply to him. Id. at 964. A panel of this court first noted the statute was to be applied retroactively, such that the limitations in the statute applied to Vazquez. Id. The panel then noted the statute specifically stated a non-violent criminal may, "without the consent of the prosecuting attorney[,]" file a petition for a sentence modification "not more than one (1) time in any three hundred sixty-five (365) day period[.]" I.C. § 35-38-1-17(j)(1). Because the appealed petition had been filed within three months of Vasquez's previous petition, prosecutorial consent was required, and as the prosecutor had not consented, the trial court had no authority to grant his petition. Id. The opinion also noted, as dicta and without further analysis, that the statute limited the number of petitions that could be filed without prosecutorial consent to two and that Vazquez, who had filed three petitions, had "exceeded the authorized number of filings" that could occur without consent. Id.

[19] Almost a year later, in Woodford , another panel of our Court was asked to decide whether petitions filed prior to the 2015 amendment counted against the two-petition limitation of Indiana Code section 35-38-1-17(j) (2015). Woodford had filed three modification petitions prior to the statutory amendment. Woodford , 58 N.E.3d at 283-4. He filed his fourth petition in 2015, and the trial court denied it because Woodford did not have prosecutorial consent for the modification. Id. at 284. The Woodford panel held that although the

statute does not unequivocally or unambiguously state the two-petition limit in Subsection (j)(2) should apply retrospectively to petitions filed before the statute's effective date ... to apply the limit retrospectively in a remedial statute like this one would produce an absurd result: it would deny Woodford the opportunity for sentence modification under the new statutory terms, even though Section 35-38-1-17(a) explicitly extends the new scheme to persons like Woodford who were convicted and sentenced before July 1, 2014.

Id. at 286. In so holding, the Woodford panel noted "the issue of which petitions count toward the limit was not squarely presented to the Court" in Vasquez . Id. at 286 n.9. Therefore, the Woodford panel held, the Vazquez ruling was not controlling. Id.

[20] Schmitt's situation is analogous to Woodford . Schmitt filed two petitions to modify prior to the 2015 amendment in the statute. Schmitt filed his third petition in 2017. Pursuant to the reasoning in Woodford , as it pertains to the two-petition limit in Indiana Code section 35-38-1-17(j)(2), this is Schmitt's first petition to modify his sentence and prosecutorial consent was not required. See id. at 287 (prosecutorial consent not required if number of petitions filed since 2015 amendment has not exceeded two).

Abuse of Discretion

[21] The trial court has broad discretion to modify a sentence. Ames v. State , 471 N.E.2d 327, 331 (Ind. Ct. App. 1984). As a general rule, an abuse of discretion will not be found unless a decision is clearly against the logic and effect of the facts and circumstances before the court. Id. In determining whether an abuse of discretion occurred, we may not reweigh the evidence, but will consider only the evidence favorable to the judgment. Catt v. State , 749 N.E.2d 633, 640 (Ind. Ct. App. 2001), reh'g denied , trans. denied 761 N.E.2d 422 (Ind. 2001).

[22] We address whether the trial court abused its discretion when it denied Schmitt's petition because it is unclear why the trial court denied the petition. Schmitt argues that because the trial court did not explain its reasons for denial, that denial could have been "premised upon the State's objection or a belief in that the original sentence was appropriate." (Reply Br. at 5.) The State argues that because Schmitt's sentence was affirmed by our Court and because Schmitt has served only fifteen years of a fifty-year sentence, the trial court did not abuse its discretion when it denied Schmitt's petition.

[23] On May 31, 2017, the trial court ordered the prosecutor to "advise the Court on or before June 30, 2017, as to their position regarding any sentence modification." (App. Vol. II at 33.) The trial court's order denying the modification notes the prosecutor objected. These two facts suggest the trial court may have been under the impression it was required to have prosecutorial consent to modify Schmitt's sentence. In light of that possible confusion, we reverse and remand for the trial court to decide the petition on its merits. See Woodford , 58 N.E.3d at 287 (when it is unclear whether the trial court was operating under a misapprehension of its authority, we decline to review the order for an abuse of discretion but rather remand for the trial court to consider on the merits). If the court makes a preliminary determination that it would grant Schmitt's petition, then the court should request documentation from the DOC and hold a hearing on Schmitt's petition in accordance with the statutory requirements. See supra Issue I.

Conclusion

[24] Because the two-petition limit includes only such petitions as have been filed since the statute was amended in 2015, Schmitt's petition is effectively the first petition he has filed, and prosecutorial consent was not required. Although a trial court is not required to explain its reasons for denial, because the trial court mentioned the State's response in its order, we reverse that denial and remand for the trial court to review Schmitt's petition on its merits.

[25] Reversed and remanded.

Riley, J., and Mathias, J., concur.

      Ind. Code 35-42-1-1 (2001).

      Ind. Code § 35-41-5-2 (1977).

      In his motion to reconsider, Schmitt requested the trial court reconsider its denial of his petition for modification of sentence. However, nothing in the record indicates the trial court had ruled on his most recent petition at the time the motion to reconsider was filed.

      Schmitt's conviction does not render him a "violent criminal" under the definition provided by Indiana Code section 35-38-1-17. The State acknowledges this.

      Vazquez also asserted the trial court was biased against him and lacked jurisdiction to rule on his petitions. Vazquez , 37 N.E.3d at 964. However, those issues are not pertinent to our review.

      Schmitt focuses a significant amount of argument on speculation that the trial court did not consider his rehabilitative efforts. When denying a petition, the trial court is not required to make written findings and conclusions. I.C. § 35-38-1-17(h). As we remand due to possible confusion regarding prosecutorial consent, we need not address this speculative argument. Nonetheless, the trial court implied it had read Schmitt's petition listing his rehabilitative efforts when it mentioned his "positive strides" in its denial order. (App. Vol. II at 41.)


author: GANTS, C.J.

text:
    MERRIMACK COLLEGE v. KPMG LLP.
    SJC-12434
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued May 8, 2018 Decided September 27, 2018
    Elizabeth N. Mulvey, Boston, for the plaintiff.
    Ian D. Roffman, Boston (George A. Salter also present) for the defendant.
    The following submitted briefs for amici curiae:
    Matthew P. Bosher, of the District of Columbia, & Elbert Lin for American Institute of Certified Public Accountants & another.
    Susan M. Whalen, Boston, for Chelsea Housing Authority.
    Jeffrey J. Nolan for Massachusetts Academy of Trial Attorneys.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
   GANTS, C.J.

"The doctrine of in pari delicto bars a plaintiff who has participated in wrongdoing from recovering damages for loss resulting from the wrongdoing." Choquette v. Isacoff, 65 Mass. App. Ct. 1, 3, 836 N.E.2d 329 (2005). The main issue presented in this civil case is whether, where the plaintiff is an organization acting through its agents, we should follow the traditional principles of agency law and impute the wrongdoing of those agents to the plaintiff organization when determining whether it should be barred from recovery under the in pari delicto doctrine. We hold that, for purposes of measuring fault under the in pari delicto doctrine, we impute only the conduct of senior management to the plaintiff organization. Because the judge here granted summary judgment to the defendant under the in pari delicto doctrine after imputing to the plaintiff college the wrongdoing of an employee who was not a member of senior management, we vacate the order allowing summary judgment and remand the case to the Superior Court.

Background. Merrimack College (Merrimack) is a small private college incorporated under the laws of Massachusetts. From 1998 to 2004, Merrimack engaged KPMG LLP (KPMG), a large multinational accounting firm, as its independent auditor. Pursuant to this engagement, KPMG conducted annual audits of Merrimack's financial statements. Because Merrimack received substantial Federal funds in the form of student financial aid, KPMG also conducted audits pursuant to the United States Office of Management and Budget Circular A-133 (A-133 audits) to evaluate Merrimack's compliance with relevant Federal requirements.

In conducting these audits, KPMG reviewed the operations of Merrimack's financial aid office, which was responsible for administering various grant and loan programs, including Federal programs such as the Perkins Loan Program. On several occasions KPMG noted issues with the financial aid office, including delayed reconciliations, discrepancies between loan amounts recorded in the billing system and loan amounts recorded on the ledger, and Perkins loans disbursed without the required promissory notes. KPMG also noted a lack of formal policies and procedures relating to the disbursement of grants and loans. KPMG reported these issues to Merrimack's management and to its board of trustees. However, for every fiscal year between 1998 and 2004, KPMG issued an unqualified opinion that Merrimack's financial statements were free from material misrepresentation and also issued an opinion, based on its A-133 audits, that Merrimack was in material compliance with Federal program requirements.

What KPMG's audits failed to reveal was that, during this time period, Merrimack's financial aid director, Christine Mordach, was engaged in a fraudulent scheme whereby she regularly replaced grants and scholarships that had previously been awarded to students with Perkins loans, often without the students' knowledge or consent and in some cases creating false paperwork with false names and false Social Security numbers. One consequence of Mordach's fraud was that it made the financial aid office's budget appear more balanced, because grants and scholarships reduce tuition revenue, whereas Perkins loans, because they are expected to be repaid in the future, are recorded as an asset on Merrimack's balance sheet. Another consequence of her fraud was that many students ended up shouldering student debt they had not sought and did not even know they had. Mordach did not tell anyone else at Merrimack that she was issuing fraudulent loans.

Mordach's fraud went undetected until 2011, when Merrimack instituted a new system for keeping track of its student borrowers and many students started to receive billing statements for Perkins loans they never knew they had. As the number of complaints increased, Merrimack hired a forensic accounting team, unrelated to KPMG, to investigate the financial aid office. This investigation revealed more than 1,200 "irregular" student loans that were either invalid or potentially uncollectible because of Mordach's activities.

In 2014, Mordach pleaded guilty to Federal criminal charges of mail and wire fraud. She was sentenced to a term in prison and ordered to pay over $1.5 million in restitution to former Merrimack students. However, her motivation for committing this fraud remains unclear. No one at Merrimack ever told Mordach to issue loans to students without the students' consent. Mordach did not profit financially from her fraud; in fact, in order to avoid detection she sometimes used her own funds to pay back the fraudulent loans. There was evidence that, at least in the short run, until the fraud was detected, the fraud benefited Merrimack in that it enabled Merrimack to present a more favorable view of its financial position in connection with bond issues and bond ratings. But there was also evidence that Mordach devised the fraudulent scheme in order to keep her job, because she was under pressure to balance the financial aid office's budget, had nearly been fired in 1990 for her poor performance, and continued to have performance issues that caused Merrimack to place her on probation in 2003.

Once Mordach's activities were discovered, Merrimack wrote off the fraudulent loans and repaid students who had already made payments on them. According to Merrimack, the total cost of these write-offs and repayments, along with investigation and administrative fees, amounted to more than $6 million.

In an effort to recover some of these losses, Merrimack commenced an action against KPMG in the Superior Court, alleging professional malpractice, breach of contract, negligence, negligent misrepresentation, and violation of G. L. c. 93A. Following discovery, KPMG moved for summary judgment on four separate grounds, arguing that Merrimack's claims were barred under the equitable doctrine of in pari delicto, that Merrimack had released KPMG from liability under the terms of their agreements because its management had made false statements to KPMG, that Merrimack's claims were barred by the Massachusetts statute of limitations for auditor malpractice claims, and that Merrimack had failed to establish a claim under c. 93A. KPMG also filed a motion for leave to file an amended answer, seeking to add the affirmative defense of release based on false statements from management.

The Superior Court judge allowed KPMG's motion for summary judgment, concluding that Merrimack's claims were barred under the doctrine of in pari delicto. The judge's analysis proceeded in three steps. First, the judge considered whether Mordach's fraudulent conduct should be imputed to Merrimack. In doing so, the judge relied on traditional principles of agency law, concluding that "[the] same 'agency-based imputation rules' for deciding whether an employer will be held vicariously liable for its employee's wrongdoing" under a theory of respondeat superior "appl[ied] with full force in this case, because they also determine whether an employee's misconduct is imputed to the employer when applying the in pari delicto doctrine" (citation omitted). The judge then applied the familiar three-pronged test for determining vicarious liability under a theory of respondeat superior, concluding that, because Mordach's conduct was "of the kind [she was] employed to perform," "occur[red] substantially within the authorized time and space limits," and "[was] motivated, at least in part, by a purpose to serve the employer," it was "within the scope of [her] employment" and should be imputed to Merrimack. Wang Lab., Inc. v. Business Incentives, Inc., 398 Mass. 854, 859, 501 N.E.2d 1163 (1986).

Second, the judge weighed the seriousness of the imputed misconduct against KPMG's failure to detect it. Because Merrimack had admitted to facts indicating that Mordach's conduct was deliberate, the judge concluded that Mordach's intentional fraud -- now imputed to Merrimack -- was "far more serious" than KPMG's alleged negligence in failing to uncover Mordach's fraud, and that Merrimack therefore could not recover from KPMG under the doctrine of in pari delicto.

Third, the judge considered whether he should, on public policy grounds, make an exception to the in pari delicto doctrine for cases like this one, where an auditor through alleged negligence failed to discover fraud committed by a client's employee. The judge recognized that, because "[the in pari delicto] doctrine is equitable in nature, considerations of public policy are always relevant." But the judge declined to make an exception, reasoning that such an exception would be inconsistent with Massachusetts law, which, in the analogous context of legal malpractice claims, bars clients who engaged in wrongdoing from suing their attorneys for joining in the wrongdoing. See Choquette, 65 Mass. App. Ct. at 7-8, 836 N.E.2d 329. The judge also noted that the majority of courts that have considered the issue have "declined to create a blanket 'auditor exception' to the doctrine of in pari delicto." See, e.g., Stewart v. Wilmington Trust SP Servs., Inc., 112 A.3d 271, 315-318 (Del. Ch.), aff'd, 126 A.3d 1115 (Del. 2015) ; Kirschner v. KPMG LLP, 15 N.Y.3d 446, 476-477, 912 N.Y.S.2d 508, 938 N.E.2d 941 (2010) ; Official Comm. of Unsecured Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers, LLP, 605 Pa. 269, 305, 989 A.2d 313 (2010).

Having concluded that Merrimack's claims were barred under the in pari delicto doctrine, the judge dismissed the claims with prejudice, without addressing KPMG's other grounds for summary judgment. The judge also allowed KPMG's motion for leave to amend its answer to add an affirmative defense of release. Merrimack appealed from these decisions, and we granted its application for direct appellate review.

Discussion. 1. Motion for summary judgment. We review a grant of summary judgment de novo. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637, 977 N.E.2d 552 (2012). In granting summary judgment to KPMG, the judge relied on two separate legal doctrines: the agency-based doctrine of imputation, and the equitable doctrine of in pari delicto. To determine whether Merrimack's claims are indeed barred as a matter of law, we must first examine these two legal doctrines and the relationship between them.

a. Imputation. The law of agency establishes a set of rules for determining when, in relation to third parties, an agent's conduct or knowledge should be imputed to his or her principal. See Restatement (Third) of Agency §§ 2.01 - 2.04, 5.03 (2006). For example, in transactions with third parties, an agent's conduct will be imputed to the principal if the agent acted with actual or apparent authority, or if the principal ratified the agent's conduct. See Fergus v. Ross, 477 Mass. 563, 566-568, 79 N.E.3d 421 (2017). See also Restatement (Third) of Agency, supra at §§ 2.01 - 2.03, 4.02. In the realm of torts, the tortious conduct committed by an agent in the scope of his or her agency will be imputed to the principal under a theory of respondeat superior. See Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234, 238, 929 N.E.2d 303 (2010). See also Restatement (Third) of Agency, supra at § 2.04. Knowledge that an agent acquires in the scope of his or her employment can also be imputed to the principal. See Sunrise Props., Inc. v. Bacon, Wilson, Ratner, Cohen, Salvage, Fialky & Fitzgerald, P.C., 425 Mass. 63, 66-67, 679 N.E.2d 540 (1997). See also Restatement (Third) of Agency, supra at § 5.03.

The result of imputation is that the principal bears the legal consequences of the agent's conduct. Thus, if an agent with actual or apparent authority enters into a contract with a third party, the principal will be bound by that contract. See, e.g., Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 4, 17, 679 N.E.2d 191, cert. denied, 522 U.S. 1015, 118 S.Ct. 599, 139 L.Ed.2d 488 (1997) (university bound by agreement signed by vice-president where vice-president had apparent authority). And if an agent negligently injures a third party while acting within the scope of the agency, the principal will be held vicariously liable for that negligence. See, e.g., Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 323, 780 N.E.2d 447 (2002) (corporation could be held vicariously liable for alleged medical malpractice of its physician-employee).

Imputation serves various functions. It creates incentives for principals to choose their agents wisely. See Restatement (Third) of Agency, supra at § 5.03 comment b, at 360. It also encourages principals to supervise their agents and to share information with them. Id. The ultimate purpose behind these rules of imputation, however, is to fairly allocate risks between principals and innocent third parties. As we explained in Kansallis Fin. Ltd. v. Fern, 421 Mass. 659, 664-665, 659 N.E.2d 731 (1996) ( Kansallis ):

"Standing behind [the] diverse concepts of vicarious liability is a principle that helps to rationalize them. This is the principle that as between two innocent parties -- the principal-master and the third party -- the principal-master who for his own purposes places another in a position to do harm to a third party should bear the loss. A principal who requires an agent to transact his business, and can only get that business done if third parties deal with the agent as if with the principal, cannot complain if the innocent third party suffers loss by reason of the agent's act. Similarly, the master who must put an instrument into his servant's hands in order to get his business done ... must also bear the loss if the servant causes harm to a stranger in the use of that instrument as the business is transacted." (Citations omitted.)

See also Dias, 438 Mass. at 320, 780 N.E.2d 447 ("The doctrine of respondeat superior in the Commonwealth ... evolved to place the burden of liability on the party better able to bear that burden"); GTE Prods. Corp. v. Broadway Elec. Supply Co., 42 Mass. App. Ct. 293, 300, 676 N.E.2d 1151 (1997) ("The rationale for imputing an agent's knowledge to his principal ... [is] to do justice to an innocent third party ..."); Restatement (Third) of Agency, supra at § 5.04 comment b, at 392 ("imputation protects innocent third parties").

Because the rules of imputation are designed to protect innocent third parties, they are typically applied in situations where a third party sues a principal, for example to enforce a contract entered into by an agent or to recover for injuries caused by the agent's tortious conduct. Imputation can also provide a defense to a third party, for example where a principal seeks to enforce a contract that a third party executed because of the fraudulent inducement of the agent. See, e.g., Jewett v. Carter, 132 Mass. 335, 337 (1882) (principal cannot enforce contract that third party entered into based on agent's false representations). See also Restatement (Third) of Agency, supra at § 6.11 & comment c.

Importantly, the purpose of imputation is not to adjudicate fault. As we have consistently recognized, imputing the wrongful actions of an agent to a principal does not mean that the principal itself has acted wrongfully. See Elias v. Unisys Corp., 410 Mass. 479, 481, 573 N.E.2d 946 (1991) ("[T]he principles of vicarious liability apply where ... [t]he principal is without fault. The liability of the principal arises simply by the operation of law and is only derivative of the wrongful act of the agent" [emphasis added] ). See also Karcher v. Burbank, 303 Mass. 303, 305, 21 N.E.2d 542 (1939) ("if the [principal] is chargeable with the negligence of the [agent], it is only because his negligence is imputed to it by a rule of law"). The rules of imputation are legal rules, not equitable principles, that are designed to allocate risk, not blame.

b. In pari delicto. In contrast, the doctrine of in pari delicto is an equitable one, focused squarely on the moral blame of the parties. Latin for "in equal fault," the doctrine provides that a plaintiff who has participated in wrongdoing cannot recover damages resulting from the wrongdoing. See Black's Law Dictionary 911 (10th ed. 2014). See also Choquette, 65 Mass. App. Ct. at 3, 836 N.E.2d 329. This long-standing doctrine "is grounded on two premises: first, that courts should not lend their good offices to mediating disputes among wrongdoers; and second, that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality" (footnotes omitted). Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) ( Bateman ).

In Massachusetts, the doctrine has generally operated to bar recovery where the parties have engaged in joint wrongdoing. Where a plaintiff engages in intentional wrongdoing and seeks to recover from a defendant who was a coconspirator or accomplice in the plaintiff's wrongdoing, the doctrine will generally bar recovery. See Baena v. KPMG LLP, 453 F.3d 1, 6 (1st Cir. 2006) ; Scattaretico v. Puglisi, 60 Mass. App. Ct. 138, 140 n.6, 799 N.E.2d 1258 (2003) ("one in tortious league with another is generally without remedy against the other"). See also, e.g., Duane v. Merchants' Legal Stamp Co., 231 Mass. 113, 118, 119, 120 N.E. 370 (1918), cert. denied, 249 U.S. 613, 39 S.Ct. 388, 63 L.Ed. 802 (1919) (minority shareholder who participated in corporation's anticompetitive scheme barred from recovering profits from that scheme); Choquette, 65 Mass. App. Ct. at 7-8, 836 N.E.2d 329 (plaintiff who committed perjury barred from recovering from attorney who participated in perjury). Similarly, where the parties have entered into an illegal contract, courts will generally decline to enforce the contract. See Berman v. Coakley, 243 Mass. 348, 350, 137 N.E. 667 (1923) ("courts will not aid in the enforcement, nor afford relief against the evil consequences, of an illegal or immoral contract"). See also, e.g., Arcidi v. National Ass'n of Gov't Employees, Inc., 447 Mass. 616, 619-622, 856 N.E.2d 167 (2006) (plaintiff barred from recovering payment made under contract where contract violated statute); Patterson v. Clark, 126 Mass. 531, 532-533 (1879) (plaintiff barred from recovering payment made under illegal gambling contract); Atwood v. Fisk, 101 Mass. 363, 363-364 (1869) (plaintiff barred from seeking cancellation of notes executed in exchange for illegal promise to suppress prosecution).

Because the doctrine is equitable in nature, however, it is not to be applied mechanically. "One well established exception to the doctrine of in pari delicto provides that 'where the parties are not in equal fault as to the illegal element ... and where there are elements of public policy more outraged by the conduct of one than of the other, then relief in equity may be granted to the less guilty.' " Choquette, 65 Mass. App. Ct. at 4, 836 N.E.2d 329, quoting Council v. Cohen, 303 Mass. 348, 354, 21 N.E.2d 967 (1939). See, e.g., Berman, 243 Mass. at 355, 137 N.E. 667 (plaintiff who was fraudulently induced to enter into illegal contract by attorney could recover from attorney, where attorney's conduct was "far more reprehensible" than plaintiff's). See generally 1 J. Story, Commentaries on Equity Jurisprudence § 423, at 399-400 (14th ed. 1918) ("One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offence" [footnote omitted] ).

"Another exception involves 'cases where the public interest requires that [the courts] should, for the promotion of public policy, interpose, and the relief in such cases is given to the public through the party.' " Choquette, 65 Mass. App. Ct. at 4, 836 N.E.2d 329, quoting Council, 303 Mass. at 354-355, 21 N.E.2d 967. See, e.g., Broussard v. Melong, 322 Mass. 560, 562, 78 N.E.2d 623 (1948) (worker who contracted to work longer hours than permitted by statute could recover overtime wages from employer where statute was enacted to protect workers); Council, supra (homeowner who granted mortgage in violation of statute could recover interest paid to mortgagee where statute was enacted to protect homeowners). See generally Story, supra at 400 ("there may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be").

Thus, in Bateman, 472 U.S. at 301-305, 105 S.Ct. 2622, the United States Supreme Court concluded that the in pari delicto doctrine did not bar investors who purchased securities based on inside information (tippees) from bringing an action under Federal securities laws against the insiders who provided them with the information to recover their subsequent trading losses when the inside information turned out to be false. The Court concluded that a private action for damages may be barred under the in pari delicto doctrine "on the grounds of the plaintiff's own culpability only where (1) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks to redress, and (2) preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public." Id. at 310-311, 105 S.Ct. 2622.

As to the first element, the Court determined that a tippee who trades on inside information is not as blameworthy as a corporate insider or broker-dealer who discloses the inside information for personal gain. See id. at 312-314, 105 S.Ct. 2622. As to the second, the Court determined that "denying the in pari delicto defense in such circumstances will best promote the primary objective of the federal securities laws -- protection of the investing public and the national economy through the promotion of 'a high standard of business ethics ... in every facet of the securities industry.' " Id. at 315, 105 S.Ct. 2622, quoting Securities & Exch. Comm'n v. Capital Gains Research Bur., Inc., 375 U.S. 180, 186-187, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). The Court reasoned that barring private actions in these types of cases because of the in pari delicto doctrine "would inexorably result in a number of alleged fraudulent practices going undetected by the authorities and unremedied," Bateman, supra, and that allowing tippees to bring such cases against corporate insiders and broker-dealers would maximize the deterrence of insider trading. See id. at 316, 105 S.Ct. 2622.

We note that the doctrine of in pari delicto is separate and distinct from comparative negligence, codified in G. L. c. 231, § 85. Under the comparative negligence statute, a plaintiff is barred from recovery only where the plaintiff's negligence is greater than the defendant's, meaning that it accounts for more than fifty per cent of the parties' combined negligence. Where the plaintiff's negligence is less than the defendant's, the plaintiff is still allowed to recover, although any damages awarded will be "diminished in proportion to the amount of negligence attributable" to the plaintiff. Id. Thus, under the comparative negligence statute, the plaintiff's relative fault is considered only when apportioning damages and does not necessarily preclude recovery. But the comparative negligence statute does not apply where the plaintiff has engaged in intentional wrongdoing; it applies only where the plaintiff and defendant are both found to be negligent. See Boyd v. National R.R. Passenger Corp., 446 Mass. 540, 548 n.11, 845 N.E.2d 356 (2006) ("The comparative negligence statute is not applicable to intentional or wilful, wanton, or reckless conduct"). Where the plaintiff has engaged in intentional wrongdoing, the in pari delicto doctrine, if applicable, serves as a complete bar to recovery. Where the parties are individuals, application of the in pari delicto doctrine is relatively straightforward: the moral culpability of one party is measured against the moral culpability of the other. Thus, a plaintiff who engages in intentional wrongdoing is unlikely to recover from a defendant who is alleged to be merely negligent, unless public policy dictates otherwise. See Kirschner, 15 N.Y.3d at 464, 912 N.Y.S.2d 508, 938 N.E.2d 941 ("A criminal who is injured committing a crime cannot sue the police officer or security guard who failed to stop him; the arsonist who is singed cannot sue the fire department").

But where the parties are organizations that can act only through their agents, as here, the task becomes more complicated. The question then arises: how do we determine the moral culpability of each party? If we apply the traditional rules of imputation that determine legal responsibility with respect to third parties and impute Mordach's intentional misconduct to Merrimack, the in pari delicto doctrine may bar recovery. But if we do not impute Mordach's intentional misconduct to Merrimack, then the worst that can be alleged here based on the evidence is that Merrimack was negligent in its retention or supervision of Mordach, in which case Merrimack's recovery will be governed by the principles of comparative negligence, not in pari delicto.

The judge cited two cases in support of his decision to apply traditional principles of agency law and impute Mordach's fraudulent conduct to Merrimack. One was a decision from the New York Court of Appeals, Kirschner, 15 N.Y.3d at 446, 912 N.Y.S.2d 508, 938 N.E.2d 941, applying New York law. See id. at 465, 912 N.Y.S.2d 508, 938 N.E.2d 941 ("Traditional agency principles play an important role in an in pari delicto analysis"). The other was a decision from the United States Court of Appeals for the First Circuit, Baena, 453 F.3d at 1, applying Massachusetts law.

In Baena, the First Circuit held that the in pari delicto doctrine barred a trustee, acting on behalf of a bankrupt corporation, from recovering from the corporation's former accountants for their failure to prevent the fraudulent conduct of the corporation's senior managers. Id. at 6. In imputing the senior managers' conduct to the corporation, the First Circuit explicitly recognized the possibility that "Massachusetts might take a narrow view of imputation in the context of in pari delicto." Id. at 7. It also noted that "[w]hether or not application of the in pari delicto doctrine should depend on imputation rules borrowed from agency law is debatable." Id. at 8. Nevertheless, absent clear guidance from Massachusetts appellate courts, the First Circuit limited itself to the "traditional standards" governing imputation, id. at 7, writing: "It is not our job to make new law for Massachusetts ...." Id. at 8.

And indeed, that job is ours. See O'Melveny & Myers v. Federal Deposit Ins. Corp., 512 U.S. 79, 83-85, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994) (rules governing imputation are matter of State law). We recognize that, in at least one case, we have barred a plaintiff from recovery under the in pari delicto doctrine because of the misdeeds of the plaintiff's agent. In Arcidi, 447 Mass. at 619-622, 856 N.E.2d 167, we held that a union that had entered into an illegal contract could not recover the payments it had made under that contract. In doing so, we rejected the union's argument that the union itself was not at fault because it was the decision of the union president, acting on behalf of the union, to enter into the illegal contract. Id. at 618, 622, 856 N.E.2d 167. We reasoned that, "because an organization can only act through agents," separating the conduct of an organization from its agents in this context "would make it too easy for organizations to reap the benefits of illegal contracts when it is convenient, while deflecting the consequences onto agents and third parties when it is not." Id. at 622, 856 N.E.2d 167. Thus, in Arcidi we effectively imputed the union president's conduct to the union to bar recovery under the in pari delicto doctrine. We did not, however, consider whether the doctrine is always governed by traditional rules of imputation under Massachusetts common law, and we are not aware of any decision from this court or the Appeals Court -- nor has one been cited to us -- that squarely confronts the issue. In deciding this issue, we therefore write on what is essentially a clean slate of Massachusetts law.

We note first that the traditional rules of imputation, although broad in application, are not without their limits. As stated, the rules of imputation are premised on the risk-allocation principle that, as between an innocent principal and an innocent third party, it is the principal -- who is responsible for selecting and supervising the agent -- who should bear the loss resulting from an agent's actions. See Kansallis, 421 Mass. at 664, 659 N.E.2d 731. "This overarching principle" not only unifies the various rules of imputation but also "suggests [their] ... limitations." Id. at 665, 659 N.E.2d 731. Here, for instance, if a student who had been issued a fraudulent loan sought to recover damages from Merrimack, there would be little doubt that Mordach's fraud should be imputed to Merrimack under a theory of respondeat superior and that Merrimack should be held vicariously liable to the student. This is because the student is an innocent third party and, as between Merrimack and the student, it is Merrimack that should pay for the damage. But if Merrimack were to then sue Mordach for indemnification, as it would be entitled to do, see Elias, 410 Mass. at 482, 573 N.E.2d 946, Mordach may not offer as a defense to the indemnification claim that her fraud should be imputed to Merrimack, making it equally culpable, because the rationale for imputation -- the need to protect innocent third parties -- is absent. See Restatement (Third) of Agency, supra at § 5.03 comment b ("imputation does not furnish a basis on which an agent may defend against a claim by the principal"). Cf. American Int'l Group, Inc. v. Greenberg, 965 A.2d 763, 828 n.246 (Del. Ch. 2009), aff'd, 11 A.3d 228 (Del. 2011) ("[Although] the behavior of faithless fiduciaries is imputed to the corporation when the corporation faces liability to innocent third-parties ... [,] [t]his, of course, has never prevented the corporation [itself] from recovering against those faithless fiduciaries in a derivative suit").

The traditional rules of imputation are similarly inapplicable where the aim is to assign blame rather than risk. Thus, where an employee has engaged in misconduct, and where a person harmed by that misconduct seeks punitive damages against the employer, that misconduct will not necessarily be imputed to the employer. See Gyulakian v. Lexus of Watertown, Inc., 475 Mass. 290, 298-299, 56 N.E.3d 785 (2016). Rather, in awarding punitive damages, "it is the actions of the employer, not the actions of that employee, that are the appropriate focus, and ... it is the employer's conduct that must be found to be outrageous or egregious." Id. at 299 n.14, 56 N.E.3d 785. And, in determining whether the employer engaged in outrageous or egregious conduct, we look to whether "members of senior management" participated in the misconduct, or acquiesced in it by knowing of the misconduct and failing to remedy it. See id. at 300-301, 56 N.E.3d 785. The misconduct of lower-level employees -- even those at the supervisory level -- is insufficient to warrant punitive damages. See id. at 298, 56 N.E.3d 785. In this context, we depart from the usual rules of imputation because an award of punitive damages requires a moral judgment that the defendant's conduct is so blameworthy that it "justifies punishment [rather than] merely compensation." Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 110, 914 N.E.2d 59 (2009). See Pinshaw v. Metropolitan Dist. Comm'n, 402 Mass. 687, 697, 524 N.E.2d 1351 (1988), quoting Smith v. Wade, 461 U.S. 30, 52, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) ("The award of punitive damages is 'a discretionary moral judgment' ..."). Accordingly, conduct by an employee that is sufficient to hold an employer vicariously liable for compensatory damages does not necessarily suffice to justify punitive damages against the employer. To support an award of punitive damages, a jury must find the employer itself to be morally blameworthy, and that requires a finding that a member of the employer's senior management was morally blameworthy.

For similar reasons, we conclude that, under our common law, a principal acting through an agent may not be barred from recovery under the doctrine of in pari delicto unless the principal itself is found to be morally blameworthy, and conduct by an agent that is sufficient to hold a principal vicariously liable to third parties will not always be sufficient, on its own, to support that finding. Where the plaintiff is an organization that can only act through its employees, its moral responsibility is measured by the conduct of those who lead the organization. Thus, where the plaintiff is a corporation, as here, we look to the conduct of senior management -- that is, the officers primarily responsible for managing the corporation, the directors, and the controlling shareholders, if any. Only their intentional misconduct may be imputed to the plaintiff under the doctrine of in pari delicto and, only then, will a court need to consider whether application of the doctrine would comport with public policy. Here, viewing the evidence in the light most favorable to Merrimack, we conclude that Mordach cannot be deemed a member of senior management whose conduct may be imputed to Merrimack. Although we recognize that Mordach had substantial responsibilities as financial aid director, she was not an officer of Merrimack and, in contrast with its president and chief financial officer, she was not among the select few who were primarily responsible for the management of the college. As a result, Merrimack cannot be deemed because of Mordach's misconduct to have engaged in intentional wrongdoing that would bar it from recovering damages against KPMG under the in pari delicto doctrine. Instead, we must look to the conduct of Merrimack's senior management, and the evidence, again viewed in the light most favorable to Merrimack, supports at most a finding that senior management was negligent in retaining Mordach as financial aid director or in failing adequately to supervise her. This conduct may limit Merrimack's recovery under the comparative negligence statute, but does not rise to the level that would bar recovery entirely under the doctrine of in pari delicto.

Because the judge granted summary judgment to KPMG on the sole ground that Merrimack's claims were barred under the doctrine of in pari delicto, we vacate the order granting summary judgment and remand the case to the Superior Court for consideration of KPMG's three other grounds for summary judgment. We decline to address these grounds where the judge did not address them, and where the parties did not brief them on appeal. On remand, the judge will therefore have to consider whether summary judgment is warranted on alternative grounds.

Having so found, we need not consider whether, as a matter of public policy, we would carve out an exception to the in pari delicto doctrine in cases where an organization seeks to recover damages from its auditor for the auditor's negligence in failing to detect fraud committed by members of senior management. We decline to consider whether to adopt such an exception under our common law, not only because it is unnecessary to our decision, but also because the Legislature in 2001 enacted G. L. c. 112, § 87A ¾, which applies to "conduct occurring after its effective date [February 23, 2003]." St. 2001, § 147, § 2. Section 87A ¾ provides that, where a "firm licensed to practice public accountancy ... is held liable for damages in a civil action arising from or related to its provision of services," and where the "plaintiff or other party, individual, or entity has been found to have acted fraudulently in the pending action or in another action or proceeding involving similar parties, individuals, entities and claims" and "the fraud was related to the performance of the duties of the ... firm," "the trier of fact shall determine: (a) the total amount of the plaintiff's damages, (b) the percentage of fault attributable to the fraudulent conduct of the plaintiff or other party, individual or entity contributing to the plaintiff's damages, and (c) the percentage of fault of the ... firm ... in contributing to the plaintiff's damages." Under this statute, if a plaintiff suffered damages of $1 million, and seventy per cent of those damages is attributable to the plaintiff's own fraudulent conduct while only thirty per cent is attributable to the negligence of the defendant accounting firm, the defendant shall not be required to pay more than $300,000. The parties and the judge did not cite § 87A ¾ or make reference to it, even though there may be relevant conduct that occurred after its effective date and that may be governed by it. , By enacting this statute, the Legislature appears to have replaced the common-law doctrine of in pari delicto in cases where an accounting firm is sued for its failure to detect fraud by a client's employee, with a statutory allocation of damages akin to, but different from, comparative negligence. But we do not endeavor here to interpret § 87A ¾, where the parties have not discussed it and where we have not found any appellate court opinion that has interpreted or applied it, or any legislative history that sheds light on its origin or purpose. The Superior Court, on remand, may consider the statute's application to this case, if any.

2. Motion for leave to amend answer. On appeal, Merrimack also challenges the Superior Court judge's decision to allow KPMG's motion for leave to amend its answer to add an affirmative defense of release, which we review for abuse of discretion. Johnston v. Box, 453 Mass. 569, 582, 903 N.E.2d 1115 (2009).

"It is well established that the defense of a release must be raised as an affirmative defense and that the omission of an affirmative defense from an answer generally constitutes a waiver of that defense." Sharon v. Newton, 437 Mass. 99, 102, 769 N.E.2d 738 (2002), citing Mass. R. Civ. P. 8 (c), 365 Mass. 749 (1974). "It is equally well settled," however, "that a party may amend its pleading by leave of court and that such leave 'shall be freely given where justice so requires.' " Sharon, supra, quoting Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). Like the plaintiff in Sharon, supra, Merrimack contends that undue delay should have led the judge to deny KPMG's motion to amend. "While we have often upheld a judge's discretion to deny leave to amend based in part on undue delay, such denials have generally been coupled with consideration of other factors such as imminence of trial and futility of the claim sought to be added." Id., citing Leonard v. Brimfield, 423 Mass. 152, 157, 666 N.E.2d 1300, cert. denied, 519 U.S. 1028, 117 S.Ct. 582, 136 L.Ed.2d 513 (1996) ; Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264, 565 N.E.2d 1180 (1991) ; Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 292, 361 N.E.2d 1264 (1977). Here, as in Sharon, we conclude that where "the amendment ... did not raise a new issue on the eve of trial and could not be considered futile or irrelevant to [KPMG's] defense, the judge did not abuse [his] discretion in granting the motion to amend [KPMG's] answer." Sharon, supra at 102-103, 769 N.E.2d 738.

Conclusion. For the reasons stated, the order allowing KPMG's motion for summary judgment is vacated, the order allowing KPMG's motion for leave to amend its answer is affirmed, and the case is remanded to the Superior Court. On remand, the Superior Court judge will determine whether summary judgment should be granted on any of the alternative grounds asserted by KPMG, including release.

So ordered.

      We acknowledge the amicus briefs submitted by the American Institute of Certified Public Accountants and the Massachusetts Society of Certified Public Accountants, by the Chelsea Housing Authority, and by the Massachusetts Academy of Trial Attorneys.

      The Perkins Loan Program is "designed to assist institutions of higher education in financing low-interest loans to financially needy students." De La Mota v. United States Dep't of Educ., 412 F.3d 71, 74 (2d Cir. 2005). See 20 U.S.C. § 1070 (2012). Under this program, the United States Department of Education provides Federal funds to participating schools, who in turn make additional capital contributions and disburse the combined funds as loans to eligible students. The individual schools are responsible for determining eligibility, advancing funds, and collecting payments. See De La Mota, supra.

      Pursuant to the terms of its agreements with KPMG LLP (KPMG), Merrimack College (Merrimack) provided annual management representation letters to KPMG. In these letters, the president, the chief financial officer, and the controller of Merrimack represented "to the best of [their] knowledge and belief" that, among other things, there were no instances of fraud involving management or employees with "significant roles in internal control," no instances of fraud involving others that could have "a material effect on the financial statements," and "no ... [v]iolations or possible violations of laws or regulations." Merrimack also provided representation letters in connection with KPMG's audits conducted pursuant to the United States Office of Management and Budget Circular A-133, in which members of Merrimack's management -- including in some years Christine Mordach -- represented, again "to the best of [their] knowledge and belief," that Merrimack had "complied ... with the requirements of laws and regulations." Separately, the engagement letters setting forth the terms of KPMG's engagement provided that "[Merrimack] agrees to release KPMG ... and its personnel from any claims ... relating to [KPMG's] services ... attributable to any misrepresentations in the representation letter [from management]." With respect to the management representation letters not signed by Mordach, the parties dispute whether there was any "misrepresentation," given that the representations were only based on "knowledge and belief." The parties also dispute whether the representation letters signed by Mordach fall within the scope of the release.

      The full maxim is "in pari delicto potior est conditio defendentis," meaning "[i]n a case of equal or mutual fault ... the position of the [defending party] ... is the better one" (citation omitted). Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985).

      The First Circuit concluded that "ordinary agency-based imputation rules appear to operate in Massachusetts, ... whether the issue is primary liability of the company or in pari delicto." Baena v. KPMG LLP, 453 F.3d 1, 8 (1st Cir. 2006). However, the only case cited in support of this proposition of Massachusetts law was Rea v. Checker Taxi Co., 272 Mass. 510, 172 N.E. 612 (1930), and this case is simply inapposite. In Rea, we held only that the doctrine of in pari delicto did not bar a taxicab passenger who was injured by the driver's negligence from recovering from the driver's employer, because she was not at fault. Id. at 514, 172 N.E. 612. The only conduct that was imputed in that case was the conduct of the defendant's agent, the driver, to the defendant, the driver's employer -- as is typical under a theory of respondeat superior. Id. at 512, 172 N.E. 612. The plaintiff herself was an individual acting on her own behalf, not a principal acting through an agent. Thus, this case has no bearing on whether, where a plaintiff is acting through an agent, that agent's conduct should be imputed to the plaintiff for purposes of the in pari delicto doctrine.

      We note that this rule is consistent with the few cases where courts, applying Massachusetts law, have imputed an agent's conduct to a plaintiff to bar recovery under the in pari delicto doctrine. In Arcidi v. National Ass'n of Gov't Employees, Inc., 447 Mass. 616, 622, 856 N.E.2d 167 (2006), we barred a union from recovering under an illegal contract based on the actions of the union's president. Meanwhile, in Baena, 453 F.3d at 3 & n.1, 6-7, the First Circuit held that the in pari delicto doctrine barred a claim against a corporation's auditors for failing to prevent fraud, where the corporation's "top officers and directors" -- the chairman of the board, the chief executive officer, the chief financial officer, and the managing director -- were alleged to have orchestrated the fraud. In both cases, it was the conduct of senior management that was imputed for purposes of the in pari delicto doctrine.

      In NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 357, 901 A.2d 871 (2006) (NCP ), the Supreme Court of New Jersey held that imputation does not bar corporate shareholders from suing an auditor where the auditor negligently failed to uncover fraud committed by corporate officers and directors. In reaching this conclusion, the court emphasized that "third-party auditors are specifically retained for the task of monitoring corporate activity,"id. at 379, 901 A.2d 871, and that allowing an auditor to escape liability where it fails to do so would "stretch [the imputation doctrine] to its breaking point," id. at 372, 901 A.2d 871. The Superior Court judge in this case characterized the decision in NCP as creating an "auditor exception" to the doctrine of in pari delicto, when in fact the court in NCP did not address the in pari delicto doctrine, and instead focused only on the related doctrine of estoppel. The court's holding is better understood as creating an exception to the traditional rules of imputation for cases involving auditor negligence. See id. at 372 n.2, 901 A.2d 871 (auditor negligence is considered both "an exception to the imputation doctrine and a ground for estoppel"). See also Kirschner v. KPMG LLP, 15 N.Y.3d 446, 471, 912 N.Y.S.2d 508, 938 N.E.2d 941 (2010) (New Jersey has "fashioned [a] carve-out[ ] from traditional agency law in cases of corporate fraud so as to deny the in pari delicto defense to negligent or otherwise culpable auditors"); Official Comm. of Unsecured Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers LLP, 605 Pa. 269, 305, 989 A.2d 313 (2010) ("we read the rationale for the New Jersey Supreme Court's decision in NCP as effectively negating imputation [and thus barring the in pari delicto defense] relative to ... claims of negligence against auditors").

      General Laws c. 112, § 87A ¾, does not apply "where a finding is made that the acts of the individual or firm in the practice of public accountancy were willful and knowing."

      The full text of G. L. c. 112, § 87A ¾, is reprinted below:
      "When an individual or firm licensed to practice public accountancy under [§] 87B or 87B ½ is held liable for damages in a civil action arising from or related to its provision of services involving the practice of public accountancy, in which action a claim or defense of fraud is raised against the plaintiff or another party, individual or entity, and that plaintiff or other party, individual, or entity has been found to have acted fraudulently in the pending action or in another action or proceeding involving similar parties, individuals, entities and claims, and the fraud was related to the performance of the duties of the individual or firm licensed to practice public accountancy, the trier of fact shall determine: (a) the total amount of the plaintiff's damages, (b) the percentage of fault attributable to the fraudulent conduct of the plaintiff or other party, individual or entity contributing to the plaintiff's damages, and (c) the percentage of fault of the individual or firm in the practice of public accountancy in contributing to the plaintiff's damages. Under the circumstances set forth in this section, individuals or firms in the practice of public accountancy shall not be required to pay damages in an amount greater than the percentage of fault attributable only to their services as so determined. This section shall not apply where a finding is made that the acts of the individual or firm in the practice of public accountancy were willful and knowing. In such an action involving the practice of public accountancy in which a claim or defense of fraud is raised, if there is pending a separate action or proceeding in which the alleged fraudulent conduct of the same party, individuals or entity against whom the claim or defense is raised is to be adjudicated or determined, the court may stay, on its own or by motion, the action involving the practice of public accountancy until the other action or proceeding is concluded or the issue of fraudulent conduct is determined in that other action."

      The statute was cited and discussed in the amicus brief submitted by the Chelsea Housing Authority.

      Perhaps because there was no discussion of the statute, the record does not reflect whether KPMG is a firm licensed to practice public accountancy under G. L. c. 112, § 87B ½. One would expect that it is.

      One difference is that comparative negligence under G. L. c. 231, § 85, compares only the negligence attributed to all parties, but G. L. c. 112, § 87A ¾, compares the damages attributable to the plaintiff's fraudulent conduct with the damages attributable to the accounting firm's negligence. Another difference is that a plaintiff is barred from any recovery under the comparative negligence statute if its negligence is greater than the defendant's negligence, whereas a plaintiff under § 87A ¾ is entitled to recovery even if the damages attributable to its fault are greater than the damages attributable to the defendant's fault.