State v. Parsons

• Decision Date: 18 March 1986
• Docket Number: No. 8527,8527
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Garry PARSONS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 99

717 P.2d 99

104 N.M. 123

STATE of New Mexico, Plaintiff-Appellee, v. Garry PARSONS, Defendant-Appellant.

No. 8527.

Court of Appeals of New Mexico.

March 18, 1986.

[104 NM 124] Paul Bardacke, Atty. Gen., Charles D. Noland, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Kathryn Hormby, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

DONNELLY, Judge.

This case concerns the revocation of probation. The principal issue on appeal is whether the trial court erred in revoking defendant's probation because of his failure to pay a fine and costs of probation. Defendant's second issue, regarding the failure of the trial court to properly credit him with all allowable time served on probation, has been conceded by the state. We remand for further proceedings.

Defendant pled guilty to possession of a controlled substance (marijuana), a misdemeanor, under NMSA 1978, Section 30-31-23 (Cum.Supp.1985). The court sentenced defendant to serve a term of 364 days incarceration, but suspended the sentence and placed him on probation. The trial court additionally imposed a fine of $500 and ordered defendant to pay probation costs in the amount of $15 per month. The probation order, agreed to by defendant provided that the fine would be paid in eleven monthly installments of $42 and a final payment of $38.

Defendant was married and furnished support to his wife and four children. Defendant's wife did not work outside the home. The principal asset owned by defendant was an automobile, valued at $500. Before sentencing, defendant's probation officer advised the court that defendant was employed and that his net salary was approximately $400 per month, with housing provided. The probation officer also reported that defendant stated that his expenses averaged about $400 per month and that his total outstanding medical bills amounted to $4,000.

Defendant's probation began June 22, 1984. Prior to October, he made one payment of $20 on the fine and a payment of $15 on his probation costs. On October 9, defendant made an additional payment of $10. The state filed a motion to revoke probation on October 12, 1984, based upon the grounds that defendant had failed to make any payments of the fine and that he was in arrears in paying probation costs. At the beginning of January, February and March, defendant made three additional payments of $10 each. A hearing on the motion to revoke probation was held on March 27, 1984.

At the probation revocation hearing, the state presented evidence indicating that: (1) defendant had made total payments of $65 for probation costs; (2) he was $168 in arrears in the payments of probation costs as of October 10, 1984; and (3) he had failed to make any payments toward the fine which had been imposed. Gloria Bodley, defendant's probation officer, also testified that she had warned defendant on several occasions that he had to pay both the fine and his costs of probation.

Defendant testified that he was financially unable to pay the fine and probation costs and that he had paid as much as he could afford. He testified that he earned $535 net per month, after his employer's deduction for car payments on a car which he had purchased from the company. Defendant also stated that he had lost his job a month and a half prior to the revocation hearing and that during this period, he had been looking for a job every day. Defendant detailed monthly expenses of $150 for food, over and above the food stamps received by the family, and stated that he had incurred a utility bill of $80 for propane. Additionally, defendant testified that he had medical and dental bills on which he usually paid $15 to $20 per month. Defendant related that he had no checking or savings accounts and that he also had expenses for his children's clothing.

At the conclusion of the hearing, the court ruled that it was ordering that defendant's probation be revoked and observed that: "I probably should have sent him to jail in the first instance. I've given him a chance to pay the fine and fee. If he finds a job and otherwise qualifies he'll be granted work release."

The court granted defendant's request for an opportunity to submit findings of fact and conclusions of law. Defendant, however, did not file his requested findings until eight days after entry of the order revoking probation, even though the order revoking probation was not entered until a week after the hearing.

I. REVOCATION OF PROBATION

Did the court properly revoke defendant's probation in light of defendant's testimony that he was financially unable to make additional payments? To resolve this issue we look to Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

In revocation proceedings for failure to pay a fine or restitution, the Bearden rule requires that, first, the trial court must determine whether defendant made bona fide efforts to pay; then, if bona fide efforts were made, the trial court must determine whether alternative forms of punishment, other than imprisonment, are adequate. The court in Bearden held:

We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully 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 state's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay.

Id. at 672, 103 S.Ct. at 2072 (emphasis added).

The rationale relied on in Bearden was that incarceration after revocation of a defendant's probation, for failure to pay a fine or restitution, violates the Due Process Clause of the Fourteenth Amendment, where defendant has made a bona fide effort to pay the amounts ordered, but, through no fault of his own, lack of funds prevents his payment.

The decision in Bearden was followed two years later by Black v. Romano, 471 U.S. ----, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985). In Black, the court observed that due process imposes procedural and substantive limits on the revocation of a defendant's conditional liberty interest created by probation. Black further held that although Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), outline the minimum procedural safeguards required by due process, neither decision imposes on a sentencing court the duty of explicitly stating why it has rejected alternatives to incarceration. See also Stuard v. State, 681 P.2d 1120 (Okla.Ct.App.1984).

Black articulated that the procedures "already afforded by Gagnon and Morrissey protect the defendant against revocation of probation in a constitutionally unfair manner." Black, 105 S.Ct. at 2259. Those procedures include a written statement by the factfinder indicating the evidence relied on and the reasons for revoking probation; the required written statement "helps to insure accurate factfinding with respect to any alleged violation and provides an adequate basis for review to determine if the decision rests on permissible grounds supported by the evidence." Id. at 2259.

In the instant case, the trial court did not make an express finding that defendant's failure to pay the fine and costs of probation was willful. Defendant argues on appeal that the trial court was required to adopt explicit findings as to defendant's ability to pay the fine and costs and as to his willful failure to pay them. Defendant also contends that the trial court must adopt findings on the issue of whether suitable alternatives to incarceration exist. Defendant further submits that absent such findings, due process requirements recognized in Bearden are not satisfied. The state responds that although explicit findings on these factual issues were not adopted, the court's findings on these matters are implicit. We agree only with that portion of the state's argument which contends that the trial court was not required to adopt findings as to the alternatives to incarceration which it considered and rejected. The court in Black noted that requiring the factfinder to elaborate the reasons "for a course not taken would unduly burden the revocation proceeding without significantly advancing the interests of the probationer." Id. at 2259. See also State v. Follis, 81 N.M. 690, 472 P.2d 655 (Ct.App.1970) (sentencing judge is not required to state on the record reasons for declining to place defendant upon probation).

Was the trial court required to adopt findings of fact or indicate in the record its determination of whether defendant had the ability to pay the sums ordered and whether defendant's failure to pay was willful? We answer the question in the affirmative. Neither Bearden nor Black precisely address this issue. Black, however, finds that in a revocation hearing, procedural due process is satisfied where probationer has an opportunity to present mitigating evidence and to argue alternatives to imprisonment and, additionally, the factfinder states the reason for its decision and the evidence relied on.

We conclude that findings of fact and conclusions of law are necessary in order to permit meaningful appellate review in probation revocation proceedings in which revocation is grounded on defendant's alleged failure to pay a fine, costs, or restitution. See State v. Duke, 10 Kan.App.2d 392, 699 P.2d 576 (1985). Compare NMSA 1978, Crim.P.R. 38(d) (Repl.Pamp.1985...