State v. Geoffrey A. Regan.
No. 2021-47-C.A. (N2/10-173A)
Supreme Court of Rhode Island
May 2, 2022
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhodе Island 02903, at Telephone (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published.
O P I N I O
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.
In January 2011, a judgment of conviction entered following defendant‘s plea of nolo contendеre to the charge of unlawful appropriation in an amount greater than $1,000, in violation of
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 failеd 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 pаy 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
Analysis
Before this Court, defendant argues that the trial justice errеd 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 prisоn “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 сapricious, 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 аction 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 Rеgan 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 tо 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[,]” аccording to
“If the probationer has made sincere efforts to legally acquire the necessary money, but remains unable to comply with a restitution obligatiоn, 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 (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). Nevertheless, there must first
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 beforе 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 аre of the opinion that this finding was arbitrary and capricious.
This Court has recognized that a restitution payment obligation need not be linked to the duration of the underlying sentence. See State v. Traudt, 679 A.2d 330, 332 (R.I. 1996). Court-ordered restitution ripens into a civil judgment on behalf of the viсtim and is enforceable as such. See
As a result, upon expiration of a defendant‘s probation, the “defendant remains civilly liable for the restitution.” Traudt, 679 A.2d at 332. If a time period for payment is set forth in an order and payment is not made in accordance with the ordеr, interest begins to accrue, with costs and fees, and the judgment becomes enforceable in accordance with laws applicable to “civil cases generally.” See
Under the circumstances of this case, we touch on the folly that gave rise to this dispute. Imposition of a restitution order in such an insurmountable amount in the absence of a hearing on the accused‘s ability to pay ought to be avoided. The court should proceed with caution before entering orders proposed by the state that seek unrealistic restitution amounts as part of a criminal sentence. In addition, in this case, the judgment of conviction—which is the controlling document—does not place a timeline on payment of restitution. In the absence of a finding concerning Regan‘s ability to pay this amount, it is irrational to conclude that Regan would face a lengthy period of incarceration simply because he could not satisfy $520,295.46 in monthly payments of $200. Simply put, there were not enough months in his sentence to accomplish this goal.
Although a probation violation may result in lifting the suspended portion of a sentence and imposition of imprisonment,
In this case, after declaring that Regan was in violation of his probation, the trial justice continued the sentencing hearing on several occasions in order to keep the sentence “hanging over [his] head” so that in the event Regan failed to comply with making payments, the court could “remove the suspended period of time and order [him] to serve that amount of time at the ACI[.]” However, as of January 2021, Regan‘s probation had expired and there no longer existed a sentence to impose. While Regan remains civilly liable for his restitution obligation, his sentence and the Superior Court‘s jurisdiction to oversee his probation for the offense for which he was convicted has concluded.
Conclusion
Based on the foregoing, we vacate the оrder of the Superior Court. The papers in this case may be remanded to the Superior Court.
STATE OF RHODE ISLAND
SUPREME COURT– CLERK‘S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
| Title of Case | State v. Geoffrey A. Regan. |
| Case Number | No. 2021-47-C.A. (N2/10-173A) |
| Date Opinion Filed | May 2, 2022 |
| Justices | Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ. |
| Written By | Associate Justice Maureen McKenna Goldberg |
| Source of Appeal | Newport County Superior Court |
| Judicial Officer from Lower Court | Associate Justice Kristin E. Rodgers |
| Attorney(s) on Appeal |
For State: Brianne M. Chevalier, Department of Attorney General For Defendant: Geoffrey A. Regan, Pro Se |
SU-CMS-02A (revised June 2020)