Winbush v. State

• Decision Date: 29 November 2018
• Docket Number: No. RE-2016-995,RE-2016-995
• Citation: 433 P.3d 1275
• Parties: Phillip Eric WINBUSH, III, Appellant v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

433 P.3d 1275

Phillip Eric WINBUSH, III, Appellant

v.The STATE of Oklahoma, Appellee.

No. RE-2016-995

Court of Criminal Appeals of Oklahoma.

FILED November 29, 2018

OPINION

HUDSON, JUDGE:

¶ 1 Appellant, Phillip Eric Winbush, III, appeals from the revocation of his five (5) year suspended sentence in Case No. CF-2012-478 in the District Court of Comanche County, by the Honorable Mark R. Smith, District Judge. On April 16, 2013, Appellant entered a plea of guilty to Count 1: Unlawful Possession of Controlled Drug With Intent to Distribute, felony; Count 2: Attempting to Elude Police Officer, misdemeanor; and Count 3: Driving With License Cancelled / Suspended / Revoked, misdemeanor. He was sentenced to a term of eight (8) years with all but the first three (3) years suspended, plus fines, costs and fees of $3,336.00 on Count 1; to a term of one (1) year, plus fines, costs and fees of $726.00 on Count 2; and to a term of one (1) year, plus fines, costs and fees of $736.50 on Count 3, with all sentences ordered to run concurrently.

¶ 2 On May 18, 2014, Appellant signed a Notice of Court Hearing for Payment of Fines and Costs and agreed to appear within ten days of his release to determine his ability to pay fines and costs.¹ On July 24, 2014, Appellant appeared and agreed to a scheduled payment of $150.00 on or before August 30, 2014, and every month thereafter until paid in full. On May 22, 2015, the State filed a motion to revoke Appellant's suspended sentence alleging he violated probation by (1) failing to pay all fines, costs, assessments, restitution and supervision fees; and (2) by committing the new crimes of Count 1: Possession of Controlled Dangerous Substance, Methamphetamine, felony; and Count 2: Domestic Assault and Battery, misdemeanor. On May 28, 2015, Appellant waived his right to a revocation hearing within twenty days. On October 1, 2015, Appellant appeared and the revocation hearing was continued until November 12, 2015. Appellant agreed to a scheduled payment of $100.00 on or before November 9, 2015, and every month thereafter until paid in full. On November 13, 2015, Judge Smith entered a Minute Order noting Appellant failed to appear on November 12, 2015; Appellant's bond was revoked and reset and a bench warrant was issued. On December 2, 2015, Appellant appeared and the revocation hearing was continued several times.

¶ 3 On September 20, 2016, the revocation hearing was conducted before Judge Smith. The State first called Kelly Blasengame ("Blasengame"). Blasengame worked in the Comanche County District Court Clerk's office and was responsible for tracking people who had been ordered to pay fines and costs. Blasengame testified Appellant had not paid any money towards his fines and costs. Blasengame testified a first payment schedule had been set up for Appellant and he made no scheduled payments on fines and costs. Blasengame testified a second payment schedule was set up for Appellant and he again made no payments on fines, costs or assessments. The State then called John Crouse ("Crouse") with the Comanche County District Attorney's Office. Crouse testified he was responsible for tracking individuals ordered to pay DA supervision fees. Crouse testified Appellant had come in to set up a payment schedule, but had never paid any money toward his fees. On cross-examination, Crouse testified that Appellant had never contacted him concerning any difficulty Appellant was having in making his payments. The State's final witness was Keli Ireland ("Ireland") with the Comanche County District Attorney's Office. Ireland testified Appellant kind of had an attitude when he filled out his intake form, so she let Crouse handle the case. After Ireland's testimony, the State rested.

¶ 4 Appellant demurred to the evidence, which was denied by Judge Smith. Appellant did not present any testimony or evidence at the revocation hearing. Judge Smith found by a preponderance of the evidence that Appellant had violated probation by failing to make required payments. Judge Smith ordered a pre-sentence investigation report and continued the sentencing hearing. On October 20, 2016, Judge Smith heard arguments and revoked Appellant's five (5) years suspended sentence in full. Appellant now appeals.

¶ 5 In his first proposition, Appellant contends that Judge Smith's order revoking his suspended sentence was an abuse of discretion "because the law, as applied to the facts, failed to prove the alleged violations were willful." Appellant's brief at 3. Appellant argues that there was no evidence presented in this case that he willfully did not pay fines and costs, and therefore this Court should reverse Judge Smith's order revoking his suspended sentence. Appellant also argues that it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods for punishing the defendant are available. The dissent in this appeal contends that because Judge Smith "did not inquire of Appellant the reasons for not paying the assessments" the revocation of Appellant's suspended sentence was an abuse of discretion.

¶ 6 These arguments resurrect the issue of where the burden of proof should be placed when a probationer has failed to make required payments. Specifically, which party bears the burden of demonstrating whether such violation was willful or not. Appellant and the dissent both rely heavily on specific language within Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) to support their contentions that the burden is on the sentencing court to inquire into and establish whether the probationer's failure to pay was not willful, or whether the probationer has made sufficient bona fide efforts to pay.

¶ 7 Bearden is not a beacon of clarity as is evidenced by the struggle numerous courts exhibited in their early attempts to decipher the decision. This Court's own decisions issued within a relatively short time after Bearden reflect those struggles.² However, this Court and numerous other courts ultimately put Bearden to bed and established the standard still in effect—i.e., once the State proves that the probationer has failed to make restitution payments, the burden shifts to the probationer to prove that his failure to pay was not willful or that he has made sufficient bona fide efforts to pay. McCaskey v. State , 1989 OK CR 63, ¶ 4, 781 P.2d 836, 837. If the probationer presents evidence to show non-payment was not willful, the hearing court must consider such evidence and make a finding of fact regarding the probationer's ability to pay. Id . ; see also e.g. Tilden v. State , 2013 OK CR 10, ¶ 7, 306 P.3d 554, 557 ; Reese v. Arkansas , 26 Ark. App. 42, 759 S.W.2d 576, 577 (1988) ; Illinois v. Walsh , 273 Ill.App.3d 453, 210 Ill.Dec. 126, 652 N.E.2d 1102, 1106 (1995) ; Turner v. Maryland , 307 Md. 618, 516 A.2d 579, 583 (1986) ; New Hampshire v. Fowlie , 138 N.H. 234, 636 A.2d 1037, 1039 (1994) ; New Mexico v. Parsons , 104 N.M. 123, 717 P.2d 99, 104 (Ct. App. 1986) ; North Dakota v. Jacobsen , 746 N.W.2d 405, 408 (N.D. 2008) ; Ohio v. Hamann , 90 Ohio App.3d 654, 630 N.E.2d 384, 395 (1993) ; Miller v. Penn. Bd. Of Prob. & Parole , 784 A.2d 246, 248 (Pa. Cmmw. Ct. 2001) ; Rhode Island v. LaRoche , 883 A.2d 1151, 1155 (R.I. 1994) ; Wike v. Texas , 725 S.W.2d 465, 468 (Tex. Ct. App. 1987) ; Washington v. Bower , 64 Wash.App. 227, 823 P.2d 1171, 1174-75 (1992) ; Ramsdell v. Wyoming , 149 P.3d 459, 464 (Wyo. 2006).

¶ 8 Despite the nearly thirty (30) year precedent of McCaskey , Appellant and the dissent argue that McCaskey , Tilden and the other above cited authority misinterprets and misapplies Bearden . Their argument is unfounded. A careful and correct reading of Bearden gives proper perspective to the case and controversy actually addressed and the holdings actually made therein. We take this opportunity to weed the garden of revocation law concerning the willfulness of probation violations, and the burdens of proof and persuasion, particularly regarding a probationer's indigence and the failure to make required probation payments.

¶ 9 In Bearden , the State of Georgia filed a petition to revoke Bearden's probation because he had not paid the $550 balance of fines and restitution as ordered. Bearden was notified of the petition and was given the opportunity to be heard at a hearing on the petition. Bearden and his wife both testified about their lack of income and assets and of his repeated efforts to obtain work. Without considering the testimony of Bearden and his wife, the Georgia court automatically revoked Bearden's probation strictly based on Bearden's failure to pay as ordered the balance owed. On appeal, the United States Supreme Court held that fundamental fairness prohibited Georgia from sentencing Bearden to imprisonment simply because he failed to pay, without considering the reasons Bearden provided for his inability to pay, and determining that he had not made sufficient bona fide efforts to pay. Bearden , 461 U.S. at 673, 674, 103 S.Ct. at 2073, 2074. The Supreme Court accordingly reversed the revocation of Bearden's probation and remanded for a new sentencing hearing. Id. , 461 U.S. at 662, 673-74, 103 S.Ct. at 2067, 2073-74. The decision in Bearden was therefore based upon the sentencing court's failure/refusal to consider evidence presented—not upon the State's failure to prove the alleged violations were willful, as Appellant argues in this matter.

¶ 10 The following sentence in Bearden continues to be taken out of context and misconstrued: "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." Bearden , 461 U.S. at 672, 103 S.Ct. at 2073. Too often we see defendants on appeal erroneously read this sentence as placing the burden of proof or persuasion on the sentencing court to inquire and determine the reasons for the probationer's...