State v. Bower

• Citation: 64 Wn.App. 227,823 P.2d 1171
• Decision Date: 10 February 1992
• Docket Number: Nos. 27631-0-,27632-8-,27633-6-I and 27634-4-I,s. 27631-0-
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Robert Wayne BOWER, Appellant.

Page 227

64 Wn.App. 227

823 P.2d 1171

STATE of Washington, Respondent, v. Robert Wayne BOWER, Appellant.

Nos. 27631-0-I, 27632-8-I, 27633-6-I and 27634-4-I.

Court of Appeals of Washington,

Division 1.

Feb. 10, 1992.

Review Denied June 3, 1992.

Suzanne Lee Elliott, Washington Appellate Defender, Seattle, for appellant.

Michele Shaw, Deputy Pros. Atty., Seattle, for respondent.

KENNEDY, Judge.

Robert Wayne Bower appeals his sentence modification and commitment to serve time for failure to pay court costs and victim penalty assessments. We affirm.

I

Bower appeared for hearing in King County Superior Court on December 4, 1990, to answer allegations that he failed to pay court-ordered financial obligations in four separate criminal convictions. Evidence presented by the State indicated that Bower had signed agreements to retire the obligations on two of his convictions at the rate of $25 per month. There were no signed agreements with respect to the obligations due for the other two convictions, in that Bower had been released from jail after his sentences for those offenses with no notification to a community corrections officer. However, testimony at the hearing indicated that Bower would have been aware of these financial obligations, even without signing the standard condition to pay, because of his presence at the time of his sentencings. Testimony also indicated that Bower had paid none of the court ordered obligations and that he had failed to report for community supervision as to all four of the convictions.

The court questioned Bower regarding whether he had any defense to the charges that the obligations had not been paid. Bower offered no defense at this point in the hearing and the court entered an oral ruling that Bower had violated the terms of his community supervision.

Recognizing that Bower's failure to pay would be excusable if he were truly indigent, the court then entertained testimony regarding the reason for Bower's failure to pay. The community corrections officer had no information regarding Bower's financial circumstances because Bower had never reported for supervision. The officer noted that although Bower had been in jail for several months immediately preceding the modification hearing, he had been out of jail for approximately a year following the imposition of the court-ordered financial obligations.

Bower then testified that he had a hard time making a living, that he had no steady employment and no jobs where he had received a W-2 form for federal income tax purposes. When the court specifically inquired as to how much he had earned during the year he was out of jail, Bower responded only that he had had a hard time paying his rent for a period of 5 years.

Noting a lack of evidence of "any good faith efforts to obtain employment" and Bower's apparent "lack of interest" in complying with the terms of his community supervision, the court then terminated the financial obligations and ordered Bower to serve 30 days for each violation, the modified sentences to be served consecutively. It is from these orders that Bower appeals.

II

Bower does not challenge the court's determination that he failed to comply with the terms of his sentences. Nor does he challenge the order that the modified sentences be served consecutively. He does challenge the court's determination that imprisonment was the appropriate remedy, in view of his claim to be indigent.

RCW 9.94A.200(2) provides in relevant part that if an offender fails to comply with any of the requirements or conditions of sentence:

(a) The court ... shall require the offender to show cause why the offender should not be punished for noncompliance....

(b) The state has the burden of showing noncompliance by a preponderance of the evidence. If the court finds that the violation has occurred, it may order the offender to be confined for a period not to exceed sixty days for each violation....

(c) If the court finds that the violation was not willful, the court may modify its previous [financial orders]....

Although the State bears the initial burden of showing noncompliance, this statute requires the offender to "show cause", that is, to come forward with any affirmative defenses he may have in order to demonstrate why he should not be punished; and it is only if the court finds that the violation was not willful that the court need consider such alternatives to imprisonment as modifying its previous sentence to reduce the amount or to extend the time for payment of the court-ordered financial obligations. RCW 9.94A.200(2)(a), (b) and (c).

The record on appeal clearly reflects that Bower failed to meet his statutory burden to show cause why he should not be punished for failure to comply with all of the terms of his community supervision. While Bower claimed that he had no steady employment and that he had difficulty paying his rent, he made no showing of bona fide efforts to obtain steady employment. He was evasive in his response to the court's specific inquiry as to his actual income while he was out of jail. He offered no excuse for his failure to report for community supervision. He made no showing of bona fide efforts to acquire the resources from which to meet his court-ordered obligations, by borrowing or other legal means. That he had agreed to pay $25 per month toward his obligations arising from two of the convictions indicates that at an earlier time he did have at least some ability to pay; yet there was no showing by Bower as to the reason for the change, if any, in his financial circumstances. Instead, he testified only that he had had difficulty paying his rent for 5 years.

Since the trial court clearly acted within the authority of RCW 9.94A.200(2) in imposing appellant's sentence, we must affirm his sentence modification and commitment to serve time unless we determine that RCW 9.94A.200(2) improperly places the burden of production and persuasion as to the affirmative defense of inability to pay upon the convicted offender. It is well settled that a court may not revoke probation because a truly indigent offender is unable by reason of such indigency to pay his fine. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); see also State v. Barklind, 87 Wash.2d 814, 817-18, 557 P.2d 314 (1976) (no convicted person can be imprisoned for failure to pay unless the default was attributed to an intentional refusal to obey the court or to a failure to make a good faith effort to make the payment).

However, a probationer's failure to make sufficient bona fide efforts to seek employment or to borrow money or otherwise to legally acquire resources in order to pay his court-ordered financial obligation may reflect an insufficient concern for paying the debt he owes to society for his crimes. In such a situation, a court may revoke probation and use imprisonment as an appropriate penalty. Bearden, 461 U.S. at 668, 103 S.Ct. at 2070, Barklind, 87 Wash.2d at 817-18, 557 P.2d 314. It is only when the probationer has made reasonable efforts to meet his court-ordered financial obligations, and yet cannot do so, through no fault of his own, that it is "fundamentally unfair to revoke probation automatically." Bearden, 461 U.S. at 668, 103 S.Ct. at 2070.

Poverty does not automatically insulate a criminal defendant from punishment. Any person, rich or poor, may be incarcerated for an intentional failure to obey a court order, but if costs are imposed on a person who truly cannot pay, or who later...