Badura v. State

• Decision Date: 05 June 1992
• Docket Number: No. 91-268,91-268
• Citation: 832 P.2d 1390
• Parties: James Lawrence BADURA, Jr., Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1390

832 P.2d 1390

James Lawrence BADURA, Jr., Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 91-268.

Supreme Court of Wyoming.

June 5, 1992.

Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, and Erin A. McIntyre, Asst. Public Defender, Public Defender Program, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., and Barbara L. Boyer, Sr. Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., THOMAS, CARDINE and GOLDEN, JJ., and PRICE, District Judge.

URBIGKIT, Chief Justice.

We review a criminal defendant's claim that the trial court failed to follow statutorily required procedures in ordering restitution included in his felony sentence following a guilty plea.

Appellant, James Lawrence Badura, Jr. (Badura), contends the trial court failed to comply with governing statutes in imposing restitution as a part of his sentence, in that: if inquiry had been made into his ability to pay, the trial court would then have been compelled to find Badura did not have the means to pay the ordered restitution. He also claims the trial court failed to make a proper determination of the amount of restitution required as a term of the probationary sentence. Appellate challenge comes after revocation was entered resulting in a penal confinement sentence. ¹

After being honorably discharged from the United States Navy on June 2, 1989, Badura lived at the home owned by his mother and father in Clark, Wyoming. His sister and brother-in-law, John and Janatt Pulczinski, had also lived there, but moved to Minnesota shortly before the incidents giving rise to this case. When they left for Minnesota, they left blank check books, cars and other personal property at the Clark residence. While he lived there, appellant had access to the blank checks and the automobiles. He negotiated over $3,000 worth of those checks by tracing his brother-in-law's signature. He also used, and damaged, two of the automobiles owned by the Pulczinskis.

Badura pled guilty to forgery ² at his arraignment held on September 12, 1990, and from that point forward it was clear he would pay restitution for his crime. ³ After a presentence report was prepared, he was sentenced on January 30, 1991 to a term of imprisonment of one to three years in the Wyoming State Penitentiary. Sentence was suspended and a probationary sentence was granted, conditioned upon payment of restitution at $500 per month.

At his sentencing hearing, Badura acknowledged he would pay restitution of approximately $3,000 on the forged checks and also $2,500 for the damage he caused to the vehicles. Although stating some disagreement with the amount claimed by his brother-in-law for damages to the motor vehicles, he admitted owing just over $3,000 for the forged checks and assented to a requirement to pay the $2,500 for damage to the vehicles. He did object to inclusion for restitution of any travel expenses his brother-in-law had incurred in returning to Cody from Minnesota, which totalled $1,157.71. ⁴ He was to make his first payment of $500, the amount he agreed he could pay, by February 5, 1991. During the period of probation after sentence, he did not make that payment, nor has he ever made any payment, in any sum, at any time.

On March 21, 1991, a petition to revoke Badura's probation was filed in the district court. By order entered on November 7, 1991, Badura's probation was revoked and his prison sentence of one to three years was activated. Badura contends the trial court failed to adhere to the statutory requirements for imposing a sentence which includes a restitution order. Wyoming statutes require that a sentence incorporating restitution be accomplished in accordance with those statutes. Wyo.Stat. § 7-9-101 through § 7-9-115 (Supp.1991). ⁵ Badura correctly points out that Wyo.Stat. § 7-9-104 requires the trial court to have the probation officer and the defendant prepare a restitution plan. The record does not categorically demonstrate that this sort of restitution planning was done, but the presentence report does show that restitution was discussed and the transcripts demonstrate that appellant agreed at sentencing that he could and would make the monthly restitution ⁶ payments which were ordered in the sentence. Essentially, Badura claims that if this planning process had been observed more rigorously, it would have been clear to the probation officer, as well as to the trial court, that he did not have the ability to pay $500 a month in restitution.

The record reflects the in-court examination provided a reasonable, factual basis about the accused's financial circumstances which was sustained by his insistence of willingness and ability to pay the restitution of at least $500 per month as he itemized his actual and expected income. Dreiman v. State, 825 P.2d 758 (Wyo.1992); Seaton v. State, 811 P.2d 276 (Wyo.1991). It was his offer. Asch v. State, 784 P.2d 235 (Wyo.1989). Moreover, the trial court's decision to revoke was not based on the failure to have paid the full amount of the total restitution or even full payments for the monthly installments required. Rather, it was based on Badura's failure to pay anything at all. The trial court took into account that following sentence, Badura had neither sought nor obtained employment--whether part-time or full-time; whether manual, menial or professional--at a time when jobs were readily available. Indeed, the trial court was very patient in continuing the proceedings so that Badura could show some sincere effort to pay something toward the restitution. The trial court judge granted continuances, in part because Badura simply did not show up for some hearings and in part to allow him time to become employed. In sum, fourteen months after Badura was first aware he would be making restitution, nothing had been paid. We hold the trial court satisfactorily observed the governing statutes in requiring Badura to pay restitution. Kahlsdorf v. State, 823 P.2d 1184, 1191-95 (Wyo.1991); and see generally Annotation, Ability to Pay as Necessary Consideration in Conditioning Probation or Suspended Sentence Upon Reparation or Restitution, 73 A.L.R.3d 1240 (1976).

Badura also contends the trial court erred in not determining the actual pecuniary damages suffered by the Pulczinskis as required by Wyo.Stat. § 7-9-103(a). The objection is solely directed to the $1,157.71 travel expense incurred by his in-law after he forged the checks and wrecked the cars. As appellant, he did not and does not question the total amount of restitution for the forged checks and the overdrafts. He considered the $2,500 for damage to the cars to be too high, but accepted it as suitable. Badura argued he should not have to pay his brother-in-law's travel expenses to return to Wyoming from Minnesota to take care of problems caused by his conduct, because they would have had to have returned in any event to transport the remainder of their property to Minnesota. The trial court then told him at sentencing:

If you wish to challenge the amount of the restitution, you may petition the Court for a hearing to reconsider the amount of restitution, and if such a hearing is held, of course, it will be necessary for the State to come forward with evidence to document the total requested, and if you dispute it, you ought to be in a position to offer your evidence in response. Otherwise that will be the exact amount of restitution, and regardless of whether a petition to reconsider that amount is filed or not, you are ordered to begin making payments on restitution in the amount of not less than five hundred dollars a month, with the first payment to be due and payable on or before February 5th.

No request for such hearing was made. Cf. State v. Lewus, 170 Ariz. 412, 825 P.2d 471 (1992). No W.R.Cr.P. 36 (now W.R.Cr.P. 35) objection was raised to the sentence; and no restitution, including a victim's compensation $50 deposit payment, was ever made. See W.R.Cr.P. 35 (formerly W.R.Cr.P. 36). Kahlsdorf, 823 P.2d at 1193. We need not definitively decide here if the total figure is justifiable or if the travel expenses were a proper subject for restitution. The defendant must challenge the amount of restitution determined at sentencing (or within the time permitted by the rules after sentencing) or the amount is fixed as res judicata, not subject to attack at a probation revocation hearing. Sanderson v. State, 649 P.2d 677 (Wyo.1982). See generally Arthur W. Campbell, Law of Sentencing § 3:3 (2d ed. 1991).

The trial court ordered restitution in the amount of $7,304.82 and the record clearly reflects that Badura never paid anything. Revocation was validated because Badura made no demonstrable effort with more than adequate post-sentence notices to pay the court-ordered restitution. As the trial court said: "[Y]ou've gone for all of this time without having made even a single payment at all, that is quite frankly an insincerity. I'm not sure that you made very much of an effort because I think you could have made some of it in that much time." We agree with the trial court that appellant's failure to pay anything toward the required restitution was willful and a legitimate reason for revocation of probation. Kahlsdorf, 823 P.2d at 1195. ⁷ Seaton, 811 P.2d at 280, is not precisely comparable, because in that case, no installment payment arrangement had been established in any fashion. See also Dreiman, 825 P.2d 758.

Affirmed.

1 Propriety of the process used for revocation is not presented by this appeal. See W.R.Cr.P. 33, now W.R.Cr.P. 39 (effective March 24, 1992).

2 Wyo.Stat. § 6-3-602 (1988) states:

(a) A...