State v. Gates, Cr. N

• Decision Date: 02 November 1995
• Docket Number: Cr. N
• Citation: 540 N.W.2d 134
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Glenn A. GATES, Defendant and Appellant. o. 940388.
• Court: North Dakota Supreme Court

Page 134

540 N.W.2d 134

STATE of North Dakota, Plaintiff and Appellee, v. Glenn A. GATES, Defendant and Appellant.

Cr. No. 940388.

Supreme Court of North Dakota.

Nov. 2, 1995.

Marvin K. Madsen, State's Attorney, Mohall, for plaintiff and appellee.

Thomas K. Schoppert, Schoppert Law Firm, Minot, for defendant and appellant.

MESCHKE, Justice.

Glenn A. Gates appealed from an order revoking his probation for failure to pay any restitution, and sentencing him to imprisonment and further probation conditioned on restitution. We affirm the trial court's findings revoking probation and imposing imprisonment, but remand with directions to make more specific the restitution condition for continuing probation.

Gates was in a partnership to buy, import, export, and sell grain. In April 1988, Gates received checks payable to the partnership for $15,000 and $10,000. Gates converted the funds to his own use without the prior approval required by the partnership agreement.

On March 27, 1991, Gates was charged with theft of over $10,000, a class B felony, and theft of over $500, a class C felony. On January 23, 1992, Gates pled guilty to the class C felony in exchange for dismissal of the class B felony, a one-year suspended jail sentence, and probation with permission to leave the state for work activities. If he successfully completed probation, the felony was to be reduced to a misdemeanor. Probation was conditioned on paying restitution, but if it was not paid by the tenth month after sentencing, Gates agreed his probation would be revoked, and he would serve the one year in jail.

The prosecutor reminded the trial judge to "just be sure that Mr. Gates is acknowledging that he does have the funds to make restitution up to this particular dollar amount." Gates's attorney answered, "He is acknowledging today that he has the funds available...." The trial court asked, "Now, Mr. Gates, have you made arrangements and thought about this so that you can complete this no matter what the amount is?" and Gates answered, "Yes, I have." Gates did not state his expected source of funds for the restitution.

The trial court instructed Gates, "You're going to have some sort of schedule with the probation officer. They don't want you to wait until the very end and all of a sudden you'll have 19,000 or some amount but that's kind of between you and the probation officer." The court also warned Gates that nonpayment of the restitution "could be grounds to either revoke your suspended sentence or continue to extend the sentence to do something so it was recovered...."

At the restitution hearing on April 8, 1992, the possibility arose that Gates might have transferred some of the money for partnership purposes, reducing his obligation. Only Gates's attorney was present at this hearing. The trial court postponed action to consider appointing a master if disagreement remained after efforts to trace the money were completed. At a later hearing on July 7, 1992, only his attorney appeared again, and conceded that there had been no partnership transfers by Gates for credit on restitution. The court ordered Gates to pay $19,186 restitution by the tenth month of his supervised probation, November 23, 1992, but again did not inquire into his ability to pay.

On August 28, 1992, the trial court scheduled a hearing to revoke Gates's probation for his failure to report to his probation officer since March 9, 1992. At the revocation hearing on October 26, 1992, Gates's parole officer testified that Gates was supposed to report monthly and that, "He reported initially and then he missed a month and then he reported again by telephone and in person in March. And that was the last contact I had with him." Gates had been assigned a new parole officer on June 1, 1992, who testified he had been unable to locate Gates. Gates testified that he left in March or April of 1992 for custom combining work out of state with plans to return in August. He claimed he did not know he was to report monthly, but thought "just when I come back to report."

The trial court found Gates violated his probation for failing to report. The court sentenced Gates to one year imprisonment, with eleven months suspended for two years and, since Gates had not paid any restitution yet, restructured the restitution to be paid by the end of the twentieth month of supervised probation, or before June 26, 1994. Once again, the trial court did not inquire into Gates's ability to pay restitution, and there was no discussion about his source of funds. Two years later on October 31, 1994, the trial court scheduled a hearing to revoke Gates's probation for failing to pay restitution. At the hearing on November 30, 1994, Gates testified that in 1993 he earned near $6,000, and in 1994 near $6,500, all from custom combining. After harvest in 1993, Gates built a combine trailer and did repair work for his employer to earn another $3,500. He testified he had no assets and no means of paying restitution.

At this hearing, Gates described, for the first time, his pending lawsuit against the federal government, and his hope to win that lawsuit for funds to make restitution. According to Gates, he began the lawsuit after the federal government had improperly foreclosed a mortgage on his farm, before his January 1992 guilty plea. Gates had not previously told the trial court that he was counting on the outcome of the lawsuit, but he had simply assumed he would have funds from it for his assurances to the court. Gates testified that he "mentioned about getting my land back" to the probation officer, and that the probation officer had "asked if I could afford to make payments and I said I couldn't."

Gates was also behind in a $400 monthly child support obligation to his former wife. The trial court recognized, "if someone was meeting some other court ordered obligation[,] it goes to the ability to pay and how someone is attempting to meet obligations." In October 1992, Gates owed $17,260 in support arrearages. Since then, he had paid only $1,000 in November 1992, $200 at a later date, and $40 in March 1994.

Asked why he did not seek better employment during the off-season, Gates testified, "I thought that um this deal with my land would come about and I would be able to pay up all this stuff." He also testified that he went to Job Service "[a]bout three or four" times for job referrals, but did not follow up on them.

Gates's living expenses were minimal, too. About rent, food, and utility expenses, he said, "I am living with my mother now. She supplies that. In return I build stuff for her in the basement." Gates did not explain how he spent his earnings.

The trial court found Gates violated his probation "by willfully failing to make restitution in the amount of $19,186.00 for any part thereof." The court ruled, "you haven't paid a single thing, a single month when you have had some ability to pay. Not only the ability to pay but I really do find that you have maintained an under employment status intentionally." The court sentenced Gates to one year and a day in prison, with five months and one day suspended for five years, and reimposed restitution as a condition of probation. The court also directed Gates to find more productive employment. Gates appeals.

Gates argues, "A sentence cannot be imposed for violation of a term of probation based on nonpayment of restitution when a future chose of action does not materialize" and, "The Court may not revoke probation when the defendant's ability to make restitution has not been determined." Specifically, Gates claims his "ability to pay was not properly ascertained by the Court" when his only means of payment was a hopeful result in pending litigation. Thus, he claims, the court's inquiry into his ability to pay "was based upon a future chose of action that may or may not have materialized" and, "If the Court has no firm basis of a defendant's ability to pay restitution, the Court cannot subsequently play 'gotcha!' and sentence a term of imprisonment for willful failure to pay." Gates protests he "was punished for his poverty and financial situation," "that [he] did not make restitution is not in itself a willful refusal to do so," and he "did not have the means to make restitution because of circumstances out of [his] control, in a case before the Federal Claims Court that is yet unresolved." We disagree.

We review a probation revocation in two stages. State v. Monson, 518 N.W.2d 171, 173 (N.D.1994). First, under the clearly erroneous standard, we review the trial court's factual finding on the violation of probation. Id. A finding of fact is clearly erroneous if, although there is some evidence to support the finding, we are convinced, on the entire record, a definite mistake has been made. State v. Toepke, 485 N.W.2d 792, 794 (N.D.1992). Second, we review the trial court's decision to revoke probation under the abuse-of-discretion standard. Monson, 518 N.W.2d at 173. Our review of the sentence imposed after revoking probation is very limited. We explained in State v. Ennis, 464 N.W.2d 378, 382 (N.D.1990), that we are "confined to determining whether the judge...