201 Conn.App. 435
Conn. App. Ct.2020Background
- Defendant Joshua Parker pled guilty (Alford) to multiple charges and was sentenced to concurrent probation with restitution ordered: $18,734.43.
- In Jan. 2018 Parker admitted separate probation violations, pleaded guilty to new offenses, and the court continued probation with a condition to pay restitution; he told the court the extended probation would allow him to pay.
- Between Feb.–May 2018 Parker paid $850, leaving a balance of $17,884.43; he remained unemployed while on supervision and had child‑support and basic expenses.
- In Jan. 2019 the state charged Parker with violation of probation for failure to pay restitution; at the May 30, 2019 revocation hearing the PO testified Parker participated in an employment program (AIC) but was not employed and the PO believed he did not make bona fide efforts to obtain work.
- The trial court revoked probation and sentenced Parker to 30 months’ incarceration, relying principally on his 2018 statements that he could and would pay; the court did not make an explicit on‑the‑record finding that his failure to pay was wilful.
- The Appellate Court reversed and remanded, holding the court failed to apply Bearden and must make explicit findings about ability to pay, wilfulness, and bona fide efforts to acquire resources.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Parker) | Held |
|---|---|---|---|
| 1. Whether revocation for nonpayment requires a finding of wilfulness under Bearden v. Georgia | The court implicitly found wilfulness; an explicit label not required because parties contested wilfulness and court understood the issue | Court erred by revoking without finding wilfulness; Bearden requires inquiry into reasons for nonpayment | Reversed: court failed to make constitutionally required inquiry and finding of wilfulness |
| 2. Whether an earlier admission of ability to pay can substitute for an on‑the‑record inquiry at revocation | Implicit finding from 2018 statements suffices to show ability and wilfulness | Earlier aspirational statement cannot substitute for contemporaneous inquiry into ability or bona fide efforts | Court may not rely solely on prior statements; must inquire into reasons for failure to pay during probationary period |
| 3. Whether an implicit finding is constitutionally sufficient or an explicit on‑record finding is required | Implicit findings are adequate; absent articulation defendant should have moved for articulation | Due process requires explicit findings (ability to pay, wilfulness, or bona fide efforts) to allow appellate review | Explicit findings on the record are required before incarceration for nonpayment |
| 4. Who bears the burden to prove wilfulness/ability to pay in a probation revocation for nonpayment | State: burden for violation generally on the state; implicit that state may rely on defendant to raise inability | Parker: state must prove ability to pay and wilfulness because revocation implicates liberty and nonpayment alone (poverty) cannot justify incarceration | Burden properly lies with the state to show ability and wilfulness or lack of bona fide efforts; ability is prerequisite to wilfulness |
Key Cases Cited
- Bearden v. Georgia, 461 U.S. 660 (1983) (holding courts must inquire into reasons for failure to pay; cannot imprison solely for poverty)
- Turner v. Rogers, 564 U.S. 431 (2011) (due process safeguards include express on‑record findings about ability to pay when liberty is at stake)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probation/parole revocation requires written statement of evidence and reasons)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (procedural protections for parole revocation)
- Black v. Romano, 471 U.S. 606 (1985) (written reasons aid accurate factfinding and appellate review)
- State v. Preston, 286 Conn. 367 (2008) (distinguishes evidentiary and dispositional phases in revocation and standards)
- State v. Pieger, 240 Conn. 639 (1997) (restitution nonpayment cannot support revocation unless court finds ability and wilfulness)
- State v. Martinik, 1 Conn. App. 70 (1983) (remanding where trial court revoked for nonpayment absent appropriate findings under Bearden)