Fox v. State

347 S.E.2d 197, 176 W. Va. 677

• Court: West Virginia Supreme Court
• Decided: July 16, 1986
• Docket: 16872
• Status: Published

Opinions

McGRAW, Justice:

This is an original proceeding in habeas corpus. The petitioner,. Timothy Eugene Fox, seeks to have set aside a final order of the Circuit Court of Marshall County, entered October 19, 1984, which revoked his probation and sentenced him to imprisonment in the state penitentiary. We conclude that the circuit court abused its discretion in revoking the petitioner’s probation, and we award the writ.

On July 5,1983, the petitioner pled guilty in the Circuit Court of Marshall County to an information charging him with two counts of breaking and entering and one count of forgery. After a presentence investigation, the circuit court denied the petitioner’s motion for probation and ordered him committed as a youthful offender to the Anthony Center for not less than six months nor more than two years, during which time the petitioner was required to participate in an alcohol and drug rehabilitation program.

On April 12, 1984, after successfully completing the rehabilitation program, the petitioner was returned to the circuit court for further disposition. Following a brief hearing, the petitioner was placed on probation for one year on condition that he pay restitution in the amount of $986.03. Other conditions of probation, contained in a written statement signed by the petitioner, required him to repay the State $466.25 for the costs of the proceedings against him and to refrain from drinking alcoholic beverages for the term of probation.¹ The probation officer, Terry Huffman, instructed the petitioner to make monthly payments of “slightly over a hundred dollars” in order to pay the total amount of restitution and court costs by the end of the probation term.

With the permission of the court, the petitioner subsequently moved to Gallipolis, Ohio to live with his sister and brother-in-law and began working in a restaurant. In June, 1984, the petitioner was transferred to the supervision of the Gallia County, Ohio probation office.

In September, 1984, Huffman filed with the Circuit Court of Marshall County a petition to revoke probation on the grounds that the petitioner had violated the conditions of probation stated above.² The petitioner was arrested and returned to Marshall County, where a hearing was conducted before the circuit court on October 12, 1984. At the conclusion of the hearing the circuit court found the petitioner guilty of having violated his probation. By order entered October 19, 1984, probation was revoked, and the petitioner was sentenced to imprisonment at the state penitentiary for three consecutive terms of not less than one nor more than ten years.

The petitioner’s, first contention in this proceeding is that the circuit court’s revocation of probation for his failure to pay court costs and restitution was unlawful. We conclude that the circuit court acted in excess of its authority in imposing these conditions of probation and, therefore, had no authority to revoke the petitioner’s probation for his failure to comply with them.

The circuit court’s authority to order restitution or repayment of court costs as a condition of probation is derived from W.Vá.Code § 62-12-9 (1984 Replacement Vol.), which provides, in part, that in addition to the enumerated mandatory conditions for release on probation,

the court may impose, subject to modification at any time, any other conditions which it may deem advisable, including, but not limited to, any of the following:

(1) That he shall make restitution or reparation, in whole or in part, immediately or within the period of probation, to any party injured by the crime for which he has been convicted.

(2) That he shall pay any fine assessed and the costs of the proceeding in such installments as the court may direct.

(3) That he shall make contribution from his earnings, in such sums as the court may direct, for the support of his dependents. (Emphasis added)

In addition, W.Va.Code § 29-21-17(d) (1985 Cum. Supp.) authorizes the court to condition probation upon repayment of the costs of representation provided the defendant under our public defender law.³

In Armstead v. Dale, 170 W.Va. 319, 294 S.E.2d 122, 125 (1982), we concluded that these provisions were permissible under constitutional principles of equal protection and availability of legal counsel. Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). We also recognized, however, that since the imposition of financial sanctions as a condition of probation is a matter within the discretion of the lower court, such condition must be reasonable. See Jett v. Leverette, 162 W.Va. 140, 247 S.E.2d 469 (1978); Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976). In Armstead, we concluded that “[a] repayment condition is unreasonable if it is beyond probationer’s ability to pay without causing undue hardship to himself or his family.”⁴ A similar rule obtains when probation is conditioned upon payment of restitution. See State v. M.D.J., 169 W.Va. 568, 289 S.E.2d 191 (1982). Unreasonableness is unacceptable.

In the case before us, however, there is nothing in the record to indicate that the circuit court inquired into or considered the petitioner’s ability to pay without undue hardship prior to the imposition of the repayment conditions. Such an inquiry is statutorily required before the court may condition probation on reimbursement of the costs of services rendered a defendant under our public defender law. W.Va.Code § 29-21-17(d)(2) provides:

The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In determining the amount and method of repayment of costs, the court shall take account of the financial resources of the person, the person’s ability to pay and the nature of the burden that payment of costs will impose. The fact that the court initially determines, at the time of a case’s conclusion, that it is not proper to order the repayment of costs does not preclude the court from subsequently ordering repayment should the person’s financial circumstances change.

Clearly, unless the circuit court conducts a prior inquiry into and determines the probationer’s ability to pay, it has no authority to condition probation upon the repayment of the costs of representation under W.Va. Code § 29-21-17(d).

There is no similar statutory provision expressly requiring the court to inquire into the defendant’s ability to pay before ordering restitution as a condition of probation. After reviewing the statements of other jurisdictions, however, we believe a pre-imposition inquiry is required even in the absence of statute.

First, “Consideration of the defendant’s ability to pay restitution is sound penology.” State v. Hawkins, 134 Ariz. 403, 405, 656 P.2d 1264, 1266 (1982). The practice of ordering restitution or reparation⁵ as a condition of probation is favored in the law because it serves “as an aid both to the criminal in achieving rehabilitation and to his victim in obtaining some measure of redress.” Commonwealth v. Walton, 483 Pa. 588, 599, 397 A.2d 1179, 1185 (1979). See also People v. Walmsley, 168 Cal.App.3d 636, 214 Cal.Rptr. 170 (1985); State v. Blanchard, 409 A.2d 229 (Me.1979).

Unlike a fine as a condition of proba-, tion, or service of a jail term prior to supervision, restitution has an understandable logic. It is directly related to the offense and the attitude of the offender. There is a reality involved: society does not sanction fraud or other forms of theft; it does not approve injury inflicted upon an innocent person. Society wants to make sure the offender realizes the enormity of his conduct, and it asks him to demonstrate this by making amends to the individual most affected by the defendant’s depredations.

State v. Harris, 70 N.J. 586, 593, 362 A.2d 32, 35 (1975), quoting D. Dressier, Practice and Theory of Probation and Parole 176-177 (1959).

Restitution can aid an offender’s rehabilitation by strengthening the individual’s sense of responsibility. The probationer may learn to consider more carefully the consequences of his or her actions. One who successfully makes restitution should have a positive sense of having earned a fresh start and will have tangible evidence of his or her capacity to alter old behavior patterns and lead a law-abiding life. Conditioning probation on making restitution also protects the community’s interest in having the victims of crime made whole.

Huggett v. State, 83 Wis.2d 790, 798, 266 N.W.2d 403, 407 (1978). Thus, “Restitution imposed in a proper case and in an appropriate manner may serve the salutary purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole.” People v. Richards, 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 540-541, 552 P.2d 97, 100-101 (1976).

Where, however, the defendant is unable to pay restitution, the rehabilitative purpose of the probation condition is destroyed.

If the amount of restitution imposed exceeds the defendant’s ability to pay, the rehabilitative purpose of the order is dis-served, especially where the restitution payment is a condition of probation, for in such a case the defendant is told that he will not be imprisoned only if he somehow satisfies a condition he cannot hope to satisfy.

Commonwealth v. Fuqua, 267 Pa.Super 504, 509, 407 A.2d 24, 26. See also State v. Hawkins, supra; People v. Kay, 36 Cal.App.3d 759, 111 Cal.Rptr. 894 (1973); Huggett v. State, supra. We recognized as much in State v. M.D.J., supra, where we stated:

An order imposing conditions of probation that are unreasonable or beyond the ability of the [offender] to perform, is not an order of probation at all but rather a disguised order of commitment. The frustration that would arise from the [offender’s] inherent inability to comply with an unreasonable condition of probation would negate the purpose of the statutory scheme of rehabilitation. The result of such a condition would not be rehabilitation. Rather, it would give the probationer a sense of unfairness, injustice and bitterness towards the system because the chance to reform would not be present. 169 W.Va. at 576, 289 S.E.2d at 196.

In order to avoid this deleterious effect on the rehabilitative goal of a restitutionary probation condition, it is generally held that even in the absence of statute, the sentencing court may not order restitution without first inquiring into and determining on the record the offender’s ability to pay. See State v. Hawkins, supra; People v. Cervantes, 154 Cal.App.3d 353, 201 Cal.Rptr. 187 (1984); People v. Gallagher, 55 Mich.App. 613, 223 N.W.2d 92 (1974); State v. Morgan, 198 Mont. 391, 646 P.2d 1177 (1982); Commonwealth v. Erb, 286 Pa.Super. 65, 428 A.2d 574 (1980); State v. Wilson, 274 S.C. 352, 264 S.E.2d 414 (1980); State v. Benoit, 131 Vt. 631, 313 A.2d 387 (1973). See also A. Campbell, Law of Sentencing § 23 (1978); American Bar Association, Standards for Criminal Justice § 18 — 2.3(e)(i) (2d ed. 1980); Model Penal Code § 301.1(2)(h) (1974).

Secondly, several courts have held that a pre-imposition inquiry is constitutionally mandated. Conditioning probation on the payment of restitution restricts valuable interests of the prospective probationer.

The [offender] has an obvious “property” interest in his earnings or other income to be paid over in satisfaction of the restitutionary amount. Additionally he has an obvious “liberty” interest in his continued probationary “freedom” which is subject to termination upon his unjustified failure or refusal to meet the restitu-tionary condition.

In re D.G.W., 70 N.J. 488, 502, 361 A.2d 513, 520-521 (1976). In addition, a defendant has a right to be sentenced on the basis of accurate information. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). Accordingly, those courts which have addressed the issue have held that due process requires the sentencing court, prior to ordering restitution, to afford the defendant notice of and a hearing on the extent of the loss occasioned by his criminal conduct and his ability to pay without undue hardship. People v. Baumann, 176 Cal.App.3d 67, 222 Cal.Rptr. 32 (1985); State v. Johnson, 711 P.2d 1295 (Hawaii 1985); In re D.G.W., supra. See also People v. Cook, 81 Ill.2d 176, 40 Ill.Dec. 825, 407 N.E.2d 56 (1980); Stacey v. State, 30 Or.App. 1075, 569 P.2d 640 (1977). But see People v. Williams, 57 Mich.App. 439, 225 N.W.2d 798 (1975); People v. Good, 287 Mich. 110, 282 N.W. 920 (1938) (pre-imposition hearing not required by due process).

The idea of a pre-imposition hearing makes infinite sense. If the rights of the defendant are protected in the first instance and the factual basis for the imposition of such conditions appears on the record, the rehabilitative goal of the restitutionary condition will be preserved, and there will be no issue as to the reasonableness of such conditions at any subsequent revocation proceeding. The only issue will be whether the probationer’s failure to pay was willful and contumacious. See Armstead v. Dale, supra. Accordingly, we hold that before probation may be conditioned upon the payment of restitution, the sentencing court must conduct a hearing and make a finding on the record with respect to the extent of the loss suffered by the aggrieved party and the ability of the offender to pay without undue hardship to himself or his family.

This is not to say that the court is required to conduct a full evidentiary hearing on the propriety of ordering restitution as a condition of probation. An order requiring the defendant to pay restitution as a condition of probation is not the equivalent of and may not be substituted for a judgment of civil liability.⁶ The offender must be given notice that he may be required to pay restitution as a condition of probation and an opportunity to contest the amount of the loss claimed and to advise the court of any reason he would not be able to pay restitution. These require-mente can be met by a proceeding which meets due process standards.

W.Va.Code § 62-12-7 (1984 Replacement Vol.) authorizes the circuit court to order the probation officer to conduct a presentence investigation and prepare a written report concerning “such ... facte as may aid the court in determining the propriety and conditions of his release on probation.” See also W.Va.R.Crim.P. 32(c)(1); 32(c)(2). When the sentencing court believes that restitution may be an appropriate condition of probation, it should direct the probation officer to include in the presentence investigation and report information concerning such matters as the nature and extent of the loss caused by the offender, the portion of the loss attributable to him when there are co-defendants and the offender’s financial condition and employment prospects. This information should be disclosed to the offender prior to sentencing as required by Rule 32(c)(3)(A) of the Rules of Criminal Procedure,⁷ thereby giving the offender notice of the matters contained therein. At the sentencing hearing, the court should invite the offender to comment upon the presentence report. The offender then has the burden of advising the court of any inaccuracies in the presentence report or of any reason that he would be unable to make restitution, presenting such evidence as the court, in its discretion, may deem relevant. W.Va.R.Crim.P. 32(c)(3)(A). After all the evidence is heard, it is incumbent on the sentencing court to enter in the record findings of fact supporting its decision as to the propriety, amount and method of paying restitution.

We believe this summary procedure is ideally suited to the situation. It does not unduly burden sentencing proceedings, since in most instances, the factual basis for the restitution order will be found in the presentence report. At the same time, it is said that the requirements of due process are satisfied by disclosing the presentence report to the defendant and allowing him an opportunity prior to the imposition of the condition to refute the investigator’s findings⁸ and to present evidence of his inability to comply. This approach has been sanctioned by a number of jurisdictions. See State v. Garner, 115 Ariz. 579, 566 P.2d 1055 (1982); People v. Baumann, supra; People v. Gallagher, supra; State v. Farrell, 676 P.2d 168 (Mont. 1984); State v. Lack, 98 N.M. 500, 650 P.2d 22 (1982); State v. Harris, supra; In re D.G.W., supra.

In the case before us, the circuit court did not afford the petitioner the benefit of even the summary procedure we have outlined. Nor is there any evidence in the record of the sentencing hearing from which we could conclude that the circuit court’s decision to condition probation on payment of restitution and court costs was appropriate in view of the circumstances existing at the time. In view of the failure of the record to reveal the factual basis for the circuit court’s decision to order restitution and payment of court costs, we are unable to conclude that they were lawful conditions of probation.

“There is no question that probation cannot properly be revoked if the condition of probation allegedly violated is invalid. Louk v. Haynes, [159 W.Va. 482], 223 S.E.2d 780 (1976).” State v. M.D.J., 169 W.Va. at 571, 289 S.E.2d at 193. See also People v. Heil, 79 Mich.App. 739, 262 N.W.2d 895 (1978). Accordingly, we conclude that the circuit court abused its discretion in revoking the petitioner’s probation for his failure to pay restitution, court costs and attorney fees.

The circuit court also concluded that the petitioner had violated his probation by consuming alcoholic beverages during probation. Evidence on this issue consisted of the testimony of the petitioner’s sister, who stated that the petitioner had come home drunk several nights, and of Paul Koch, the petitioner’s supervising probation officer in Ohio, who testified that he had smelled alcohol on the petitioner on one occasion. Koch also testified, however, that he was unaware of any prohibitionary restriction on the petitioner’s consumption of alcohol. Koch stated that he was aware that the petitioner had had a problem with alcohol in the past and had advised the petitioner to limit his intake of intoxicants, but had not ordered the petitioner to abstain from drinking.

We do not question that the circuit court has the authority, pursuant to W.Va.Code § 62-12-9, to order, as a condition of probation, that the offender refrain from using intoxicants, at least where the offender’s criminal conduct was related to the use or abuse of such substances. See Annot., 19 A.L.R.4th 1251 (1983); Annot., 37 A.L.R.Fed. 843 (1985). However, where, as appears to be the case here, the probationer is given conflicting instructions regarding the use of intoxicants, we do not believe probation should be revoked for the probationer’s failure to comply with the prior, more restrictive instructions. Since it appears that Koch gave the petitioner the impression that the restriction on his consumption of alcoholic beverages was no longer in effect, we believe the court acted arbitrarily in revoking probation for the petitioner’s drinking while under Koch’s supervision.

In sum, we conclude that the circuit court abused its discretion in revoking the petitioner’s probation in this case. It is, therefore, ordered that the petitioner be remanded to the Circuit Court of Marshall County with instructions that the court structure a proper probation program. If the circuit court fails to devise such a plan within sixty days, the petitioner shall be unconditionally discharged from custody.

Prisoner remanded.

1 . The written statement of the conditions of probation provided, in pertinent part:

7) I shall not drink any alcoholic beverages during my probation term.

******

10) I shall pay the costs of this proceeding, inclusive of any attorney’s fees herein paid in my behalf by the State of West Virginia, during the term of my probation, as my supervising Probation Officer may direct.

11) I shall pay all restitution heretofore ordered by the Court during the term of my probation, as my supervising Probation Officer may direct.

2 . The revocation petition also alleged that the petitioner had violated his probation by failing to attend counseling sessions. This charge was subsequently dismissed.

3 . W.Va.Code § 29 — 21—17(d) provides:

In the circumstances and manner set forth below, circuit judges may order repayment to the State of the costs of representation provided under this article:

(1) In every case in which services are provided to an indigent person and an adverse judgment has been rendered against such person, the court may require that person to pay as costs the compensation of appointed counsel, the expenses of the defense and such other fees and costs a authorized by statute.

(2) The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In determining the amount and method of repayment of costs, the court shall take account of the financial resources of the person, the person’s ability to pay and the nature of the burden that payment of costs will impose. The fact that the court initially determines, at the time of a case’s conclusion, that it is not proper to order the repayment of costs does not preclude the court from subsequently ordering repayment should the person’s financial circumstances change.

(3) When a person is sentenced to repay costs, the court may order payment to be made forthwith or within a specified period of time or in specified installments. If a person is sentenced to a term of imprisonment, an order for repayment of costs is not enforceable during the period of imprisonment unless the court expressly finds, at the time of sentencing, that the person has sufficient assets to pay the amounts ordered to be paid or finds there is a reasonable likelihood the person will acquire the necessary assets in the foreseeable future.

(4) A person who has been sentenced to repay costs, and who is not in contumacious default in the payment thereof, may at any time petition the sentencing court for modification of the repayment order. If it appears to the satisfaction of the court that continued payment of the amount ordered will impose undue hardship on the person or the person’s immediate family the court may modify the method or amount of payment.

(5) When a person sentenced to pay costs is also placed on probation or imposition or execution of sentence is suspended, the court may make the repayment of costs a condition of probation or suspension of sentence.

4 . In Armstead v. Dale, supra, we referred to Cottrell v. Public Finance Corp., 163 W.Va. 310, 256 S.E.2d 575 (1979) for an explanation of "undue hardship".

5 . It should be noted that, technically, the term "restitution” ordinarily refers to compensation required for wrongful appropriation of money or property, while "reparation" refers to compensation required to be paid to the victim of physical injury resulting from a crime. See Commonwealth v. Walton, 483 Pa. 588, 595, 397 A.2d 1179, 1183 (1979), footnote 10. Generally, however, courts do not make this distinction and use the terms interchangeably. See People v. Pettit, 88 Mich.App. 203, 276 N.W.2d 878 (1978); In re D.G.W., 70 N.J. 488, 361 A.2d 513 (1976); Commonwealth v. Fugua, 267 Pa.Super 504, 407 A.2d 24 (1979). See also Annot., 73 A.L.R.3d 1240 § 1 (1976).

6 . We wish to emphasize that restitution is not a substitute for a civil action for damages.

While the order aids the victim, its true purpose, and the reason for its imposition, is the rehabilitative goal it serves by "impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.” State v. Stalheim, 275 Or. 683, 689, 552 P.2d 829, 832 (1976); see State v. Mottola, 84 N.M. 414, 504 P.2d 22 (1972). Thus a court’s concern that the victim be fully compensated should not overshadow its primary duty to promote the rehabilitation of the defendant. See Best & Birzon, Conditions of Probation; An Analysis, 51 Geo.L.J. 809 (1963); Merceret, Sentencing Alternatives to Fine & Imprisonment, 31 U.Miami L.Rev. 387 (1977). (Footnote omitted)

Commonwealth v. Fuqua, 267 Pa.Super. at 508, 407 A.2d at 26. Put differently, "the criminal justice system should not be employed to supplement a civil suit or as a threat to coerce the payment of civil liability or to perform the functions of a collection agency. State v. Sherr, 9 Wis.2d 418, 424, 101 N.W.2d 77 (I960).” Huggett v. State, 83 Wis.2d at 803-804, 266 N.W.2d at 409. See also State v. Garner, supra; People v. Calhoun, 145 Cal.App.3d 568, 193 Cal.Rptr. 394 (1983).

" '[T]his is not to say that restitution must be painless. "‘Probation has an inherent sting, and restrictions upon the freedom of the probationer are realistically punitive in quality.”’ State v. M.D.J., 169 W.Va. at 575, 289 S.E.2d at 195, quoting In re D.G.W., 70 N.J. at 498, 361 A.2d at 518 (1976).

In many instances ... it will be necessary for a defendant to make substantial sacrifices in order to make restitution to the victims of his crimes. This is not an obstacle to an order requiring such restitution. Rather, where sacrifice is necessary, the probationer or parolee may learn to consider more carefully the consequences of his or her acts and thereby strengthen the offender’s sense of responsibility. Thus, an order of restitution may properly require additional or alternative employment, a reduction of expenses, and even a temporary change in lifestyle in order to achieve that sense of responsibility which signals effective rehabilitation. The true rehabilitative purpose of restitution is well served when a probationer or parolee is called upon to make reasonable sacrifices in order to compensate those who have sustained losses as a result of his criminal conduct. The rehabilitative goal is defeated only when the payments ordered by the court are so unreasonable in view of the defendant’s financial circumstances and ability to work that, despite good faith efforts, the defendant cannot hope to comply.

Commonwealth v. Wood, 300 Pa.Super. 463, 468, 446 A.2d 948, 950 (1982).

7 . W.Va.R.Crim.P. 32(c)(3)(A) provides:

At a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report of the presen-tence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. The court shall afford the defendant and his counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.

8 . We do not mean to imply that the probation officer assumes the fact-finding function of the circuit court. W.Va.Code § 62-12-9 clearly anticipates that ordering payment of restitution as a condition of probation is a judicial function. Thus, although the probation officer may make recommendations in the presentence report, the determination of the propriety, amount and method of paying restitution is the responsibility of the sentencing court and may not be delegated to any other officer. See State v. Hawkins, supra; People v. Cervantes, supra; State v. Johnson, 711 P.2d 1295 (Hawaii 1985); In re D.G.W., supra; People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d 253, 441 N.E.2d 563 (1982); Commonwealth v. Wood, supra.