State v. Regan

Decision Date02 May 2022
Docket Number2021-47-C.A., N2/10-173A
Citation273 A.3d 116
Parties STATE v. Geoffrey A. REGAN.
CourtRhode Island Supreme Court

Brianne M. Chevalier, Department of Attorney General, for State.

Geoffrey A. Regan, Pro Se, for Defendant.

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

Justice Goldberg, for the Court.

This case came before the Supreme Court on March 1, 2022, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. The defendant, Geoffrey A. Regan (defendant or Regan), appeals from a Superior Court decision and order declaring him to be in violation of his probation.1 For the reasons stated herein, we vacate the order of the Superior Court.

Facts and Travel

In January 2011, a judgment of conviction entered following defendant's plea of nolo contendere to the charge of unlawful appropriation in an amount greater than $1,000, in violation of G.L. 1956 § 11-41-11.1. He was sentenced to ten years at the Adult Correctional Institutions, with one year to serve at the ACI, one year to serve on home confinement, and eight years suspended, with probation.2 The defendant also was required to perform 250 hours of community service and, relevant to this appeal, to pay restitution in the amount of $520,295.46. No hearing was held to determine defendant's ability to satisfy this obligation. In June 2017, Regan signed a periodic payment plan in the Superior Court, providing that he was to make monthly payments of $200 toward his restitution obligation (the payment plan). There was no dispute that Regan has been in full compliance with the payment plan.

Nonetheless, on September 10, 2018, in anticipation of Regan's failure "to pay restitution in full prior to expiration of sentence[,]" the state filed a notice pursuant to Rule 32(f) of the Superior Court Rules of Criminal Procedure alleging that Regan failed to comply with his restitution condition and was, therefore, in violation of his probation. In support of the notice of violation, the state pointed to the criminal case docket, which stated, "Restitution * * * $520,295.46, 01/10/2011-12/15/2018, Closed 12/15/2018[,]" and the state contended that it was this notation that mandated Regan to pay restitution in full by December 15, 2018.

Two years later, on December 7, 2020, the Superior Court conducted a violation hearing. The trial justice, recognizing that Regan's "sentence [was] coming up to expire[,]" determined that, if he was declared a probation violator for failure to pay restitution, the Superior Court could then "keep sentencing open on that violation past the time that [his] probation would otherwise have expired." Although there was no dispute that Regan was in compliance with the court-ordered payment plan, the trial justice nonetheless declared Regan to be a probation violator. The trial justice reasoned that Regan's sentence obligated him "to pay restitution in the time period in which [he] w[as] sentenced * * * [and] short of a miracle[,]" he would be unable to pay the remaining $488,000 balance before the sentence expired in January 2021. The trial justice held that the court would continue to review the matter for sentencing on the violation to ensure that Regan continued to make payments, but that, at any given point, the court could "remove the suspended period of time and order [him] to serve that amount of time at the ACI[.]" (Citing State v. LaRoche , 883 A.2d 1151 (R.I. 2005).)

On December 24, 2020, an order entered declaring Regan a probation violator "based on his failure to pay the full amount of the court ordered restitution prior to the expiration of his probationary period."3 Regan filed a timely appeal.

Standard of Review

To establish a probation violation, the state must demonstrate "by a fair preponderance of the evidence that the defendant breached a condition of the defendant's probation[.]" Super. R. Crim. P. 32(f). "This Court will reverse a probation-violation finding only if the hearing justice acted arbitrarily or capriciously." LaRoche , 883 A.2d at 1154.

Analysis

Before this Court, defendant argues that the trial justice erred in declaring him a violator and delaying the imposition of sentence in order to continue to review his payment progress, specifically when the judgment of conviction does not place a time limit on payment of restitution. The defendant's argument comprises two distinct issues: (1) whether failure to pay restitution in full by the expiration of Regan's sentence amounted to a violation of the terms and conditions of his probation; and, if so, (2) whether the trial justice had the authority to keep a prison "sentence hanging over [Regan's] head" beyond the time when his sentence and probationary term had expired. Because we conclude that the decision of the trial justice declaring Regan in violation of his probation was arbitrary and capricious, we vacate the order of the Superior Court.

"It is well settled in this jurisdiction that appeals from interlocutory orders are not permitted unless they fall within certain well-defined exceptions[,]" State v. Minior , 175 A.3d 1202, 1206 (R.I. 2018) (quoting Boranian v. Richer , 983 A.2d 834, 837 (R.I. 2009) ), save for "such an element of finality that action is called for before the case is finally terminated in order to prevent clearly imminent and irreparable harm." DePina v. State , 79 A.3d 1284, 1288 (R.I. 2013) (quoting Town of Lincoln v. Cournoyer , 118 R.I. 644, 648, 375 A.2d 410, 412-13 (1977) ). Otherwise, "[i]nterlocutory orders are reviewable only by way of writ of certiorari." Dale v. Dale , 37 A.3d 124, 124 (R.I. 2012) (mem.).

More than a year after declaring Regan a probation violator, the Superior Court has neither sentenced Regan nor directed the entry of a final judgment. Although the order declaring him a violator is interlocutory, and elements of finality are scant, the deliberate choice to keep the sentence "hanging over [Regan's] head"—with the possibility of prison for a violation of a probationary period that has long expired—has prompted our review.

"The sole purpose of a probation-revocation proceeding is for the hearing justice to determine whether defendant failed to keep the peace and remain on good behavior, both of which are conditions of probation." State v. Forbes , 925 A.2d 929, 934 (R.I. 2007). One of the "basic conditions of probation[,]" according to G.L. 1956 § 12-19-8.1, is for a defendant to "[p]ay restitution * * * based on the defendant's ability to pay [.]" Section 12-19-8.1(a)(8) (emphasis added). Consequently, in order to constitute a probation violation with consequences for a breach of this condition, the court must determine a defendant's ability and efforts to pay restitution—that is, "the reasons for the noncompliance." LaRoche , 883 A.2d at 1154.

"If the probationer has made sincere efforts to legally acquire the necessary money, but remains unable to comply with a restitution obligation, then the court must consider alternate measures of punishment other than incarceration." LaRoche , 883 A.2d at 1154 (citing Bearden v. Georgia , 461 U.S. 660, 672, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ). "On the other hand, if the probationer has either refused to pay or has not made ‘sufficient bona fide efforts’ to acquire the resources to pay, then the sentencing court may revoke probation and impose a prison sentence." Id. (quoting Bearden , 461 U.S. at 672, 103 S.Ct. 2064 ). Nevertheless, there must first be a declaration that a defendant was noncompliant with a payment obligation in order for a finding of probation violation to be valid. See § 12-19-8.1(d) ; see also Super. R. Crim. P. 32(f). The running of time, such that payment-in-full is not achievable, is not enough to call for a prison sentence. See Bearden , 461 U.S. at 672-73, 103 S.Ct. 2064 ; see also LaRoche , 883 A.2d at 1154.

In the case at bar, the trial justice found that restitution was a condition of defendant's probation and that defendant would be unable to pay the balance in full before the expiration of his sentence. Although there was no dispute that Regan was compliant with the court-ordered payment plan, the trial justice nonetheless declared that failure to pay restitution in full before his sentence expired was a violation, without any findings with respect to Regan's ability to pay or whether Regan's failure to pay the full amount of restitution was willful, deliberate, or in defiance of his obligations. Given that the trial justice disregarded this standard, we are of the opinion that this finding was arbitrary and capricious.

This Court has recognized that a restitution payment obligation need not...

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