Fox v. State

• Decision Date: 04 June 1986
• Docket Number: No. 16872,16872
• Citation: 347 S.E.2d 197,176 W.Va. 677
• Parties: Timothy Eugene FOX v. STATE of West Virginia.
• Court: West Virginia Supreme Court

Page 197

347 S.E.2d 197

176 W.Va. 677

Timothy Eugene FOX v. STATE of West Virginia.

No. 16872.

Supreme Court of Appeals of

West Virginia.

June 4, 1986.

Dissenting Opinion July 3, 1986.

Concurring Opinion July 16, 1986.

Syllabus by the Court

1. A condition of probation which requires an offender to pay restitution or court costs and attorney fees is unreasonable if it is beyond the offender's ability to pay without undue hardship to himself or his family.

2. An inquiry into the offender's ability to pay is statutorily required before the court may condition probation on reimbursement of the costs of services rendered a defendant under the public defender law. W.Va.Code § 29-21-17(d) (1985 Cum. Supp.).

3. 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.

4. 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 and, at the sentencing hearing, the court should invite the offender to comment upon the presentence report and to state whether he will be able to pay restitution. 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. 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.

Edward L. Bullman, Moundsville, for appellant.

Atty. Gen. Charlie Brown, Asst. Atty. Gen. Jennifer Costello, Charleston, for appellee.

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.Va.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, "[c]onsideration 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 reparation ⁵ 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 probation, 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...