State v. Johnson

Chief Justice Mike McGrath delivered the Opinion of the Court.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-08-545 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad M. Wright, Appellate Defender, Office of the Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Barbara Harris, Special Deputy County Attorney, Missoula, Montana Filed: /s/_________
Clerk Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 This is an appeal from a Fourth Judicial District Court judgment revoking a deferred sentence for failure to pay restitution. We affirm. ¶2 We restate the issues on appeal as follows:

1. Whether substantial evidence supports the District Court's finding that defendant did not make a good faith effort to pay his restitution.
2
. Whether revocation of a deferred sentence for failure to pay restitution violates constitutional equal protection and due process if the probationer failed to make a good faith effort to pay.
3
. Whether restitution is a fine within the purview of the Excessive Fines Clause of Article II, Section 22 of the Montana Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 2008, the State charged David Cordell Johnson (Johnson) with five counts of felony theft, two counts of misdemeanor theft, three felony counts of exploiting an older person, and one misdemeanor count of exploiting an older person. The State alleged that Johnson defrauded elderly clients while selling insurance and annuities. According to the State, Johnson improperly accepted loans from elderly clients and transferred elderly clients' accounts to different annuities in return for substantial commissions without their full understanding of the penalties. ¶4 Johnson pleaded guilty to two counts of felony theft, whereby the State dismissed the remaining charges. On May 17, 2010, the District Court imposed deferred sentences for six years on each count, to run concurrently. The District Court ordered Johnson to ¶7 Johnson does not deny his failure to make regular restitution payments. He testified that his criminal record deterred employers from hiring him, but his probation officers stated that most probationers maintained full-time employment despite their criminal records. Furthermore, Johnson had a college degree, which his probation officers testified gave him an advantage many probationers did not have. Johnson testified he completed 587 hours of community service, but did not receive credit because he failed to pay the required $1 per hour fee. He testified his income covered only living expenses. At one point, Johnson was living out of his car and showering at truck stops. He had a $58,000 tax liability, which the IRS stopped pursuing due to his indigence. ¶8 During this period Johnson collected unemployment ($4,433 in 2010) and received food stamps, but failed to inform the Department of Corrections of this income. From 2011 to 2015, Johnson received $500 per month following his mother's death. He also initially received commissions from his former work selling insurance and annuities worth $300 to $500 per month of taxable income. However, Johnson testified that by the end of his deferred sentence they were worth much less. Since 2010, Johnson made roughly fifty payments of an average $71.58. Meanwhile, he consistently paid $70 per month toward his credit card and $100 per month toward his daughter's student loan. ¶9 Based on the testimony and argument presented at the hearing, the District Court concluded that

The State has met its burden in this case of showing that there has not been a good faith effort in meeting the restitution obligations. The Court will therefore find a violation of the probation conditions . . . imposed by [the court when it] deferred the imposition of sentence in this case.

The District Court revoked Johnson's deferred sentence and imposed a new sentence for six years on each count, to run concurrently, again deferred with the same conditions. Johnson was required to make monthly income and expense reports. Johnson appeals this decision, arguing he made a good faith effort to make the payments, but could not afford them.

STANDARD OF REVIEW

¶10 This Court exercises plenary review over constitutional questions. State v. Edmundson, 2014 MT 12, ¶ 12, 373 Mont. 338, 317 P.3d 169. This Court reviews a district court's decision to revoke a suspended sentence for abuse of discretion. Edmundson, ¶ 12. Revocation decisions involve both legal and factual findings. For legal questions, the standard of review is de novo; for factual questions, a district court will be reversed only for clear error. Tefft v. State, 271 Mont. 82, 91-92, 894 P.2d 317, 323 (1995). A defendant's ability to pay is a factual determination. State v. Reynolds, 2017 MT 317, ¶ 16, 390 Mont. 58, 408 P.3d 503. A finding of good faith in the context of making restitution payments is similarly factual, and reversible only for clear error. A district court's factual findings are clearly erroneous if they are not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Reynolds, ¶ 16.

DISCUSSION

¶11 1. Whether substantial evidence supports the District Court's finding that defendant did not make a good faith effort to pay his restitution. ¶12 Johnson asserts he made a good faith effort to pay restitution, and that the District Court erred in revoking his deferred sentence for failure to pay. ¶13 Montana law directs sentencing courts to order offenders "to make full restitution to any victim who has sustained a pecuniary loss, including . . . economic loss." Section 46-18-241(1), MCA. The law requires full restitution of deferred sentences, and the duty to pay remains with an offender until paid in full. Sections 46-18-201(5), -241(1), MCA. Revocation of a deferred sentence is appropriate where the State proves by a preponderance of the evidence a violation of the terms and conditions of the deferred sentence. Section 46-18-203(6)(a)(i), MCA. "However, when a failure to pay restitution is the basis for the petition, the offender may excuse the violation by showing sufficient evidence that the failure to pay restitution was not attributable to a failure on the offender's part to make a good faith effort to obtain sufficient means to make the restitution payments as ordered." Section 46-18-203(6)(b), MCA; State v. Welling, 2002 MT 308, ¶ 15, 313 Mont. 67, 59 P.3d 1146 (defendant's "failure to pay restitution was not caused by her lack of a good faith effort"); Bucher v. Hughes, 2010 MT 147, ¶ 7, 357 Mont. 19, 235 P.3d 1281 (defendant's "parole officer testified that $100 per month represented the most that [defendant] reasonably could pay toward restitution in light of his financial situation"). ¶20 In MacPheat v. Mahoney, this Court characterized Bearden as

clearly and unambiguously stand[ing] for the principle that to deprive a criminal defendant of his freedom simply because, through no want of bona fide effort, willful refusal or fault of his own, he lacks the financial resources to buy his liberty would be contrary to the fundamental fairness required by the Fourteenth Amendment.

2000 MT 62, ¶ 21, 299 Mont. 46, 997 P.2d 753. The parties do not cite a case where revocation of a sentence for failure to pay restitution was a violation of the Montana Constitution when the offender did not make a good faith effort to pay. ¶21 While Johnson contends that the District Court erred by failing to consider alternatives to revocation, Bearden clearly states that alternative punishments need only be considered when the defendant has made all reasonable efforts to pay restitution. The Court in Bearden listed "extend[ing] the time for making payments" as an example of an appropriate alternative to imprisonment. Bearden, 461 U.S. at 672, 103 S. Ct. at 2072. That is essentially what the District Court did in this case. ¶22 The District Court found that Johnson did not make a good faith or bona fide effort to pay his restitution. The revocation of Johnson's deferred sentence and replacement with another deferred sentence was not a constitutional violation. ¶23 3. Whether restitution is a fine within the purview of the Excessive Fines Clause of Article II, Section 22 of the Montana Constitution. ¶24 Citing State v. Good, 2004 MT 296, 323 Mont. 378, 100 P.3d 644, Johnson argues that criminal restitution is an excessive fine because of his inability to pay. ¶25 The Excessive Fines Clause of the Montana Constitution states that "excessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments punishment simply because requiring an offender to re-pay what he owes incidentally deterred illicit behavior. Any deterrent effect is vastly overshadowed by restitution's primary goal of compensating victims for losses directly attributable to an offender's criminal behavior. See Cotrell, 271 P.3d at 1253. ¶37 This Court holds that the primary purpose of criminal restitution in Montana is remediation, not punishment. Criminal restitution is therefore not within the purview of Montana's Excessive Fines Clause. Mont. Const. art. II, § 22. It is unnecessary for us to consider whether Johnson's restitution is excessive under Article II, Section 22 of the Montana Constitution, because Johnson's restitution obligation is not a fine in the State of Montana.

The federal circuit opinions interpreting the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C.S. §§ 3663A-3664, are inapposite here, as they interpret a federal law, not Montana law. Furthermore, the federal circuits are split as to whether the MVRA constitutes punishment per the Excessive Fines Clause. U.S. Const. amend. VIII. The Ninth Circuit held that while the MVRA's primary purpose was to compensate victims, it also held offenders accountable for the harms they caused; the MVRA constituted punishment. United States v. Dubose, 146 F.3d 1141, 1145 (9th Cir. 1998). Whereas the Seventh Circuit held that the MVRA was not punishment because it "barely concern[ed] itself with the effect of restitution upon a defendant in its attempt to ensure that victims of a defendant's criminal activity [we]re made whole." United States v. Newman, 144 F.3d 531, 541 (7th Cir. 1998). --------

CONCLUSION

¶38 The District Court relied on substantial evidence presented during the evidentiary hearing to determine that Johnson did not make good faith efforts to pay his restitution and supervision fees. The District Court did not abuse its discretion in revoking Johnson's deferred sentence and imposing a new sentence. Because Johnson did not make good faith efforts to pay his restitution, revocation does not violate the due process requirements of the Fourteenth Amendment. U.S. Const. amend. XIV; Mont. Const. art. II, § 4. Johnson's obligation to pay restitution is not a fine within the purview of Montana's Excessive Fines Clause, Article II, Section 22 of the Montana Constitution, because it is remedial in nature. ¶39 Affirmed.

/S/ MIKE McGRATH We Concur: /S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR