State v. Gamer

• Decision Date: 20 September 2022
• Docket Number: AC 44179
• Citation: 215 Conn.App. 234,283 A.3d 16
• Parties: STATE of Connecticut v. Charles GAMER, Jr.
• Court: Connecticut Court of Appeals

215 Conn.App. 234

283 A.3d 16

STATE of Connecticut

v.Charles GAMER, Jr.

AC 44179

Appellate Court of Connecticut.

Argued January 6, 2022

Officially released September 20, 2022

James B. Streeto, senior assistant public defender, with whom, on the brief, was Meaghan C. Kirby, certified legal intern, for the appellant (defendant).

Laurie N. Feldman, assistant state's attorney, with whom, on the brief, were Paul J. Ferencek, state's attorney, and Elizabeth K. Moran, assistant state's attorney, for the appellee (state).

Bright, C. J., and Moll and Pellegrino, Js.

MOLL, J.

The defendant, Charles Gamer, Jr., appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32¹ and sentencing him to three years of incarceration. On appeal, the defendant principally claims that (1) there was insufficient evidence to support the court's finding that he wilfully failed to pay restitution² and (2) the court abused its discretion by imposing a term of imprisonment in light of his purported inability to pay restitution. We conclude that the court neither erred in finding that the defendant wilfully failed to pay restitution nor abused its discretion in revoking the defendant's probation and sentencing him to a term of imprisonment. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. In 2009, the state charged the defendant with larceny in the first degree in violation of General Statutes § 53a-122 based on his unauthorized withdrawal of $227,863.24 from a home equity line of credit taken out by his mother and his sister.³ On April 19, 2010, on the basis of those facts, the defendant, representing himself, pleaded guilty to one count of larceny in the first degree in violation of § 53a-122. The trial court, Hudock, J. , canvassed the defendant and found that his waiver of counsel was knowing and voluntary, that there was a factual basis for the guilty plea, and that it was made knowingly, voluntarily, and intelligently, whereupon the court accepted the plea. On July 22, 2010, the court sentenced the defendant to ten years of incarceration, execution suspended after three years, followed by five years of probation. As a special condition of probation, the court ordered the defendant to make restitution for verifiable out-of-pocket losses of the complainants in an amount not to exceed $234,933.24, to be verified by the Office of Adult Probation (OAP).⁴ The OAP ultimately determined the amount of restitution to be $227,642.

The defendant's probationary period began on February 19, 2013. During the defendant's five year probationary period, the defendant paid a total of $2100 in restitution, leaving a remaining balance of $225,542. On February 15, 2018, the state charged the defendant with one count of violation of probation for failure to pay restitution pursuant to § 53a-32. The defendant denied the charge. On July 16, 2019, the court, McLaughlin, J. , held a violation of probation hearing during which the defendant was represented by counsel.

That same day, the court issued its ruling from the bench, initially stating: "When a violation of probation is solely based on the defendant's failure to pay restitution the court must find that the failure was wilful." Guided by that standard, the court found that the state had proved, by a fair preponderance of the evidence, that the defendant violated the restitution condition of his probation by wilfully failing to pay restitution. The court reasoned: "[The defendant's] payment of $100 a month was not a bona fide effort to make restitution. Rather it was a bare attempt to delay this case in hopes of not having to pay the restitution at all." The court expressly relied on (1) the defendant's testimony that he did not need to pay the restitution,⁵ (2) the defendant's failure to apply for various positions with employers such as McDonald's or Wendy's because of his belief that he would not be hired, and (3) Chief Probation Officer Kirk Gordon's testimony that he met with the defendant about his restitution obligation, that the defendant told him that he was going to apply for a loan, and that the defendant thereafter failed to provide any documentation to demonstrate that he did so. In sum, the court stated that, based on all of the evidence and the credibility of the witnesses, it found that the defendant intentionally delayed trying to repay the restitution in the hope that his probationary period would expire.

On December 19, 2019, the court held a sentencing hearing during which it revoked the defendant's probation and sentenced him to three years of incarceration. This appeal followed. Additional facts will be set forth as necessary.

As a preliminary matter, we set forth governing principles of law pertaining to the revocation of probation for failure to pay restitution. In Bearden v. Georgia , 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), the United States Supreme Court held: "[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay." The court explained: "If the probationer [wilfully] refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the [s]tate's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the [f]ourteenth [a]mendment." Id., at 672–73, 103 S. Ct. 2064 ; see also State v. Martinik , 1 Conn. App. 70, 71–72, 467 A.2d 1247 (1983) (reversing judgment of revocation of probation for failure to make appropriate wilfulness finding under Bearden ).

"As our Supreme Court has recognized in a related context, [t]he impact of indigency on a criminal defendant's liability to pay a fine is codified in our rules of practice. ... Thus, in Connecticut, it has been acknowledged judicially, both in cases and through our adopted rules of practice, that a finding that a defendant had the ability to pay and wilfully failed to do so is a prerequisite to incarceration for the failure to pay a fine." (Citations omitted; internal quotation marks omitted.) State v. Parker , 201 Conn. App. 435, 446, 242 A.3d 132 (2020). "[A]n explicit finding of wilfulness is required." Id., at 444, 242 A.3d 132.

We note that, pursuant to Bearden v. Georgia , supra, 461 U.S. at 672, 103 S.Ct. 2064, and State v. Martinik , supra, 1 Conn. App. at 71–72, 467 A.2d 1247, the trial court (1) considered the reasons for the defendant's failure to pay restitution and (2) concluded that the state proved, by a fair preponderance of the evidence, that the defendant violated his probation by wilfully failing to pay the restitution in the amount of $227,642. Specifically, the court found that the defendant failed to make sufficient bona fide efforts legally to acquire the resources to pay and that the defendant's sporadic payments of $100 per month did not constitute a bona fide effort to make restitution.

I

We first address the defendant's claim that the evidence was insufficient to establish that he wilfully failed to pay restitution.⁶ This claim fails.

Before we reach the merits of the defendant's claim, we set forth additional, applicable legal principles. "[R]evocation of probation hearings, pursuant to § 53a-32, are comprised of two distinct phases, [the evidentiary phase and the dispositional phase] each with a distinct purpose. ... In the evidentiary phase, [a] factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. ... In the dispositional phase, [i]f a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served." (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Preston , 286 Conn. 367, 375–76, 944 A.2d 276 (2008). "Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing." (Internal quotation marks omitted.) State v. Maurice M. , 303 Conn. 18, 26, 31 A.3d 1063 (2011).

Because the present claim involves the evidentiary phase and the trial court's factual finding that the defendant wilfully failed to pay restitution, we set forth the standard of review applicable to that phase. "The law governing the standard of proof for a violation of probation is well settled. ... [A]ll that is required in a probation violation proceeding is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation. ... It is also well settled that a trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing—that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. ... Accordingly, [a] challenge to the sufficiency of the evidence is based on the court's factual findings. The proper standard of review is whether the court's...