State v. Parker

• Citation: 201 Conn.App. 435,242 A.3d 132
• Decision Date: 24 November 2020
• Docket Number: AC 43344
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Joshua PARKER

201 Conn.App. 435

242 A.3d 132

STATE of Connecticut

v.Joshua PARKER

AC 43344

Appellate Court of Connecticut.

Argued September 8, 2020

Officially released November 24, 2020

John L. Cordani, assigned counsel, with whom, on the brief, was Jenna M. Scoville, Hartford, for the appellant (defendant).

Laurie N. Feldman, deputy assistant state's attorney, with whom, on the brief, were Anne F. Mahoney, state's attorney, and Andrew J. Slitt, assistant state's attorney, for the appellee (state).

Bright, C. J., and Prescott and Alexander, Js.

PRESCOTT, J.

The defendant, Joshua Parker, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and sentencing him to thirty months of incarceration. On appeal, the defendant claims that (1) the court improperly revoked his probation for failure to pay restitution without first making a finding that such failure to pay was wilful, as constitutionally required pursuant to Bearden v. Georgia , 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), and (2) the state introduced insufficient evidence to prove that the defendant wilfully refused to pay restitution. We agree that the court did not make the constitutionally requisite finding that the defendant's failure to pay restitution was wilful and, accordingly, we reverse the judgment of the trial court and remand the case for a new probation revocation hearing.

The following facts and procedural history are relevant to our resolution of this appeal. On November 25, 2015, the defendant, pursuant to a plea agreement, pleaded guilty under the Alford doctrine¹ to burglary in the third degree in violation of General Statutes § 53a-103, larceny in the third degree in violation of General Statutes § 53a-124, attempt to commit burglary in the third degree in violation of General Statutes §§ 53a-103 and 53a-49, and failure to appear in the first degree in violation of General Statutes § 53a-172. The trial court, J. Fischer, J. , canvassed the defendant and found that there was a factual basis for the guilty pleas and that they were knowingly and voluntarily made with the assistance of competent counsel. The trial court later sentenced the defendant, consistent with the plea agreement, to three years of incarceration on each docket² , execution suspended, with two years of probation, to run concurrently. As a condition of probation, the court ordered the defendant to make restitution for verifiable out of pocket losses in both dockets. The amount of restitution was determined by the Office of Adult Probation to be $18,734.43.

In October, 2017, the defendant was charged with violation of probation pursuant to § 53a-32 after he was arrested for additional offenses. At the defendant's probation revocation hearing on January 18, 2018, he admitted to violating the terms of his probation and pleaded guilty to forgery in the second degree in violation of General Statutes § 53a-139 and to reckless driving in violation of General Statutes § 14-222.³ As of the date of the hearing, the defendant had not made any payments toward the $18,734.43 in restitution that he owed. The basis for the violation of probation, however, was the new arrest and the new convictions. The defendant was represented by a public defender at this hearing and at every prior court proceeding related to this appeal.

Pursuant to a plea agreement, the court, Newson, J. , continued the defendant on probation, accepted his guilty pleas on the new offenses, and sentenced him to an additional five years of incarceration, execution suspended, with three years of probation for the forgery charge. The court ordered two special conditions of probation: (1) the defendant was not to operate any motor vehicle unless and until his operating privileges are validly reinstated by the Department of Motor Vehicles; and (2) the defendant must be either employed or making reasonable efforts to find full-time employment during the period of probation, unless he was involved in some sort of full-time educational or treatment program.⁴ Additionally, the court stated that, "as to the probations that were continued, all of those conditions remain in full force and effect."

Between February 15 and May 18, 2018, the defendant paid a total of $850 in restitution, leaving a remaining balance of $17,884.43. On January 2, 2019, the state charged the defendant with two counts of violation of probation for failure to pay restitution.⁵ The defendant denied the charges. A second probation revocation hearing was held on May 30, 2019. During the evidentiary phase of the hearing, the state called one witness, Probation Officer Amy Gile.

Officer Gile testified that she had been supervising the defendant's probation since approximately January or February, 2018. For the entirety of this time, the defendant was not employed. In addition to restitution, the defendant's other financial obligations included court-ordered child support for his daughter. The defendant spoke to Officer Gile many times about seeking employment. He told Officer Gile about a few positions that he was considering applying for, but she was unaware if he ever did so. Officer Gile never asked the defendant to show her any completed job applications. The defendant told Officer Gile that he was unable to find employment, and that he had to provide childcare for his daughter, which prevented him from working.

Officer Gile also testified that the defendant was placed in, and later "discharged ... successfully" from, an alternative in the community program (AIC program) that assists people with a criminal record in finding a job. Specifically, the program helps participants build a resume, provides them with a list of employers that will hire people with a criminal record, and offers various online curricula. Officer Gile received monthly reports from the AIC program that indicated that the defendant's participation in the program was satisfactory.

Officer Gile further testified that she did not believe the defendant made bona fide efforts to acquire the resources to pay restitution. When asked, however, how she would make a determination as to whether someone she was supervising had attempted to find employment, she responded, "[w]e'd put ‘em in the AIC program for employment services." The defendant did not call any witnesses. The court, Chaplin, J. , found that the defendant had violated a condition of his probation by not making sufficient payments toward his restitution obligation, revoked the defendant's probation, and sentenced him to serve thirty months of incarceration.

In the court's oral ruling, which later was signed as its memorandum of decision, the court explained that the basis for its finding of a violation of probation was a colloquy between the court and the defendant at the defendant's first probation revocation hearing on January 18, 2018.⁶ Specifically, the court stated that "as a point, the court is now just reiterating the basis for the court's understanding in making its decision rather than allowing ... another opportunity for additional closing arguments. Noting that upon reviewing the exhibits provided to the court of the transcripts specifically, the court does find on the January 18th date of 2018, there was a violation of probation admission entered by [the defendant]. On that date, a new probation period began which is the probation for which we're before the court today. Considering that probationary period beginning that date, there's a conversation between the court at that time and [the defendant] .... Specifically ... [the defendant] makes comments about the ability to extend the probation and that would afford him the opportunity to pay the $18,000, noting his difficulty paying that over a period of one year, and he indicated that he could actually pay that now that he had two years. ...

"Judge Newson ... then made comments to [the defendant] indicating that the difference between an impossibility to pay and difficulty paying are two different issues and that the result of not paying on the new period of probation after [the defendant] indicated he would be able to pay and he would be making sufficient efforts to pay. Indicating that he had the ability to pay and ... had the willingness to pay demonstrates to ... this court, that there was an understanding, based on [the defendant's] comments, that he had the ability to pay and would make sufficient efforts to achieve that and make those payments as required by the conditions of the probation that were discussed with him at that time, and he was thankful for having more time from that ... probation to pay ... the amount owed. Based upon that, the court finds ... by the fair preponderance of the evidence that [the defendant] was, one, aware of the condition of probation of paying the restitution, at that time aware of the amount of probation required to be paid, and at this point, he has engaged in conduct that does not satisfy that condition and, in fact, he has violated that condition of probation in not making payments and that he has ... made payments that total $850; however, that is not sufficient. The court finds that he is in violation of the probation as to each file."

Judge Chaplin later granted the defendant's application for waiver of appellate fees and appointment of appellate counsel based on a finding that the defendant was indigent. This appeal followed.

In Bearden v. Georgia , supra, 461 U.S. at 662, 103 S.Ct. 2064, the United States Supreme Court recognized that it is impermissible to imprison a defendant who is on probation, solely because of his lack of financial resources. To do so "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 [to the United States constitution]." Id., at 672–73, 103 S. Ct. 2064. This case asks us to...