State v. Hamilton

• Decision Date: 04 January 1999
• Docket Number: No. 2922.,2922.
• Citation: 511 S.E.2d 94,333 S.C. 642
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Isaac HAMILTON, Appellant.

333 S.C. 642

511 S.E.2d 94

The STATE, Respondent, v. Isaac HAMILTON, Appellant.

No. 2922.

Court of Appeals of South Carolina.

Submitted December 8, 1998.

Decided January 4, 1999.

Assistant Appellate Defender M. Anne Pearce, of SC Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Assistant Attorney General Caroline Callison Tiffin, all of Columbia; and Solicitor David P. Schwacke, of North Charleston, for respondent.

HEARN, Judge:

This is an appeal from an order revoking Isaac Hamilton's probation and reinstating a portion of his original suspended sentence. Hamilton appeals, arguing his violation was not willful. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

On March 22, 1994, Hamilton pled guilty to driving under suspension, fourth offense, and to violating the habitual offender law.² Hamilton was sentenced to five years for the habitual offender violation, suspended upon the service of seventy-five days and eighteen months probation. He received a six month concurrent sentence for DUS, suspended upon the service of eighteen months probation.

On September 19, 1995, Hamilton was charged with violating the terms and conditions of his probation by failing to pay $280 in supervision fees and failing to report to his probation officer. At the first probation revocation hearing, held on October 18, 1995, the circuit judge ordered Hamilton to complete seventy hours of public service employment (PSE) in lieu of paying the fee arrearage.³ The judge continued Hamilton's probation and extended the probationary period until September 21, 1996. The judge further ordered that the "case may terminate upon the completion of the [PSE] or the payment of supervision fee arrearage."

Hamilton never again reported to his probation officer, and was terminated from PSE after performing only forty-five of the required seventy hours. Thus, on February 26, 1996, Hamilton was again charged with violating the terms and conditions of his probation by failing to report to his probation agent, by failing to pay supervision fees, and by completing only forty-five of the seventy hours of PSE.

Hamilton's second probation revocation hearing was held on September 3, 1996. Defense counsel explained that Hamilton was a fifty year old Vietnam veteran under treatment for memory loss at the Veterans Administration Hospital. Defense counsel conceded that Hamilton had performed only forty-five hours of the community service requirement. Although defense counsel explained that Hamilton was under the impression that his probation ended in October of 1995, which was why he stopped reporting,⁴ Hamilton admitted that no one ever advised him that his probation had terminated.

Defense counsel requested termination of probation, and Hamilton's probation officer did not object to the request. However, the circuit judge declined to terminate Hamilton's probation, finding instead that Hamilton had intentionally violated the conditions of his probation by making a unilateral decision to end his own probation rather than report as ordered. Hamilton's probation was revoked in full, and he was ordered to serve nine months concurrently on each of the original suspended sentences. On September 12, 1996, defense counsel filed a motion for reconsideration, contending that there was no evidence Hamilton's violations were willful. At the hearing on the motion to reconsider, defense counsel offered to produce medical records substantiating Hamilton's diagnosis of post-traumatic stress disorder as well as a clinical history of alcohol abuse, both of which resulted in Hamilton's confusion, disorientation, and memory loss.⁵ Defense counsel maintained that Hamilton's medical condition contributed to his mistaken belief that his probationary period had ended. Hamilton's daughter testified that Hamilton had once wandered away from home and failed to recognize her when she found him. Hamilton's daughter further testified that Hamilton had been hospitalized previously, and was undergoing outpatient therapy at the Veterans Administration Hospital at the time of his arrest.

The circuit judge denied Hamilton's motion for reconsideration, finding the violations were willful. This appeal followed.

STANDARD OF REVIEW

The decision to revoke probation is addressed to the discretion of the circuit judge. State v. White, 218 S.C. 130, 135-6, 61 S.E.2d 754, 756 (1950); see also S.C.Code Ann. § 24-21-460 (Supp.1997); Sanders v. MacDougall, 244 S.C. 160, 164, 135 S.E.2d 836, 837 (1964); State v. Miller, 122 S.C. 468, 475, 115 S.E. 742, 745 (1923). This court's authority to review such a decision is confined to correcting errors of law unless the lack of a legal or evidentiary basis indicates the circuit judge's decision was arbitrary and capricious. White at 135-6, 61 S.E.2d at 756; State v. Archie, 322 S.C. 135, 137-8, 470 S.E.2d 380, 381 (Ct.App.1996).

DISCUSSION

I.

Hamilton first argues that the circuit judge erred in revoking his probationary sentence because there was no evidence that he "willfully" violated the terms and conditions of his probation. Hamilton maintains that the evidence of his medical condition removes any inference that his violations were willful. We disagree.

Initially, we note that it is questionable whether this issue is preserved for appeal. At the probation revocation hearing, defense counsel did not specifically raise the issue of willfulness, or lack thereof, based upon Hamilton's medical condition.⁶ See State v. Conyers, 326 S.C. 263, 266, 487 S.E.2d 181, 183 (1997)

(issue must be raised to and ruled upon by trial judge to be preserved for appellate review). Defense counsel did raise the issue in the motion for reconsideration of the sentence; however, it is improper to argue new matter in a motion for reconsideration. See Patterson v. Reid, 318 S.C. 183, 185, 456 S.E.2d 436, 437 (Ct.App.1995) (issue may not be raised for first time in post-trial motion). Nevertheless, it is clear that the essence of defense counsel's argument at the revocation hearing was that the violation was not willful because Hamilton believed his probationary period had terminated. The circuit judge ruled that the violation was "intentional." Thus, we find the issue is properly preserved even though counsel did not expressly argue lack of willfulness at the revocation hearing.

Both Hamilton and the State assume on appeal that the circuit judge was required to find willfulness in this case.⁷ However, this assumption misinterprets South Carolina case law.

Probation is a matter of grace; revocation is the means to enforce the conditions of probation. State v. McCray, 222 S.C. 391, 396, 73 S.E.2d 1, 3 (1952); State v. White, 218 S.C. 130, 135, 61 S.E.2d 754, 756 (1950). However, the authority of the revoking court should always be predicated upon an evidentiary showing of fact tending to establish a violation of the conditions. White, at 135, 61 S.E.2d at 756; State v. Miller, 122 S.C. 468, 475, 115 S.E. 742, 745 (1923). Thus, before revoking probation, the circuit judge must determine if there is sufficient evidence to establish that the probationer has violated his probation conditions.

It is only when probation is revoked solely for failure to pay fines or restitution that a finding of willfulness is mandatory. In Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the Supreme Court reasoned that the state has a fundamental interest in punishing those who violate its criminal laws, both rich and poor, and that poverty does not immunize a person from being appropriately punished for a crime. Id. A probationary sentence reflects a decision by the court that the state's penal goals do not require imprisonment for rehabilitation. Id. Thus, a probationer whose sole violation consists of nonpayment of fines or restitution, and who is willing but unable to pay, should not be penalized for being poor. Id. However, a probationer who willfully neither pays nor makes a bona fide effort to pay indicates that the original probationary sentence was inappropriate and that imprisonment is the preferred method of rehabilitation. Id. Only when there is a willful violation for failure to pay is the court justified in using imprisonment as a sanction to enforce collection of the fine or restitution. Id.

In response to Bearden, our courts have held that probation may not be revoked solely for failure to make required payments of fines or restitution without the circuit judge first determining on the record that the probationer has failed to make a bona fide effort to pay. Nichols v. State, 308 S.C. 334, 337, 417 S.E.2d 860, 862 (1992); Barlet v. State, 288 S.C. 481, 483, 343 S.E.2d...