STATE OF OREGON, Plaintiff-Respondent, v. JOSEPH DAVID BELL, Defendant-Appellant.
Josephine County Circuit Court 09CR0150; A149112
Josephine County Circuit Court
Submitted August 28, 2013, affirmed July 9, 2014
264 Or App 230 (2014) | 331 P3d 1062
Thomas M. Hull, Judge.
Affirmed.
Peter Gartlan, Chief Defender, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
Affirmed.
Defendant was convicted of assault in the fourth degree and interference with making a report, and the court sentenced him to a period of probation. One of the conditions of his probation was that he pay restitution, fines, and assessments. The state subsequently filed, and served defendant with, a motion to show cause why he had not made any payments. At the show cause hearing, the court found that defendant was in violation of the financial conditions of probation. As a consequence of that violation, the court extended defendant’s probation for 12 additional months, required him to perform 32 hours of community service, and assessed a probation violation fee of $25. On appeal, defendant argues that the court failed to hold the state to its obligation to prove that defendant’s failure to pay was a willful default as opposed to an unavoidable result of his poverty. He relies exclusively on Bearden v. Georgia, 461 US 660, 662, 103 S Ct 2064, 76 L Ed 2d 221 (1983), in which the Supreme Court held that a state could not revoke an indigent defendant’s probation and imprison him for failure to pay fines and restitution “without determining that [the defendant] had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist.” The state responds that Bearden does not apply here because defendant was not imprisoned for failure to pay; he merely had his period of probation extended and was required to perform community service. Even if Bearden does apply, the state contends that once the state established that defendant failed to meet the financial obligations of his probation, the burden to establish inability to pay fell to him, and he failed to meet that burden in this case. We affirm.
At the outset, we emphasize that the gravamen of defendant’s claim is that the state violated his rights under the
With that understanding, we reject defendant’s assignment of error. Bearden unequivocally does not apply to situations in which a probationer’s failure to pay fines or restitution results in some sanction less onerous than imprisonment. The introductory paragraph of Bearden establishes the opinion’s scope and foreshadows its outcome:
“The question in this case is whether the
Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution. Its resolution involves a delicate balance between the acceptability, and indeed wisdom, of considering all relevant factors when determining an appropriate sentence for an individual and the impermissibility of imprisoning a defendant solely because of his lack of financial resources. We conclude that the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist.”
Id. at 661-62 (emphases added). The opinion, then, opens with a statement limiting its scope to probation revocations that result in imprisonment, and it implies that imposing lesser forms of punishment would not violate the
Bearden, then, does not hold that the Due Process Clause of the
Affirmed.