State v. Parker ( 2020 )

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STATE OF CONNECTICUT v. JOSHUA PARKER
(AC 43344)
Bright, C. J., and Prescott and Alexander, Js.
Syllabus
The defendant appealed from the judgment of the trial court revoking his
probation for his failure to pay restitution. The defendant had previously
pleaded guilty to various offenses, including burglary and larceny, and
was sentenced to probation. As a condition of his probation, the court
ordered the defendant to make restitution in the amount of more than
$18,000. Thereafter, he was charged with additional offenses and for
violating certain terms of his probation, not involving the payment of
restitution, to which he pleaded guilty. The trial court continued the
defendant’s probation. In the months that followed, the defendant paid
a total of $850 in restitution. The state thereafter charged the defendant
with violation of probation for failure to pay restitution. The trial court
revoked the defendant’s probation, having determined, on the basis of
the defendant’s prior statements made to the court at his first probation
revocation hearing, that the defendant had the ability and the willingness
to pay, and would make sufficient efforts to pay, but had failed to do
so. On appeal, the defendant claimed, inter alia, that the trial court erred
in revoking his probation without first finding that his failure to pay the
restitution was wilful. Held that the trial court erred in revoking the
defendant’s probation for failure to make restitution payments, as that
court did not apply the correct legal standard and erred in making an
implicit finding of wilfulness: as a prerequisite to incarceration for the
failure to pay restitution, the trial court was required to make explicit
findings on the record that a defendant had the ability to pay and, if
so, whether the failure to pay was wilful, and, if not, whether the defen-
dant made sufficient bona fide efforts legally to acquire the resources
to pay; even if the trial court interpreted the defendant’s statements
made one and one-half years earlier at the first probation revocation
hearing as an admission that he had the ability to pay, the court was
still required to inquire into the reasons for the defendant’s failure to
pay and whether he failed to make good faith efforts to acquire legally
the resources to pay, the evidence did not logically support the conclu-
sion that the defendant had the ability to pay restitution during his
probationary period because there was no evidence that he had any
source of income or other assets that could be applied toward restitution,
the court did not take into consideration the actual efforts the defendant
made to acquire the resources to pay during the probation period,
instead, improperly basing its conclusion that the defendant violated
probation on the mere fact that he expressed an intention to make
sufficient efforts, and, accordingly, the court failed to make the neces-
sary finding that the defendant’s failure to pay was wilful.
Argued September 8—officially released November 24, 2020
Procedural History
Substitute information charging the defendant with
two counts of violation of probation, brought to the
Superior Court in the judicial district of Windham, geo-
graphical area number eleven, and tried to the court,
Chaplin, J.; judgment revoking the defendant’s proba-
tion, from which the defendant appealed to this court.
Reversed; further proceedings.
John L. Cordani, assigned counsel, with whom, on
the brief, was Jenna M. Scoville, for the appellant
(defendant).
Laurie N. Feldman, deputy assistant state’s attorney,
with whom, on the brief, were Anne F. Mahoney, state’s
attorney, and Andrew J. Slitt, assistant state’s attorney,
for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Joshua Parker, appeals
from the judgment of the trial court revoking his proba-
tion pursuant to General Statutes § 53a-32 and sentenc-
ing him to thirty months of incarceration. On appeal,
the defendant claims that (1) the court improperly
revoked his probation for failure to pay restitution with-
out first making a finding that such failure to pay was
wilful, as constitutionally required pursuant to Bearden
v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d
221 (1983), and (2) the state introduced insufficient
evidence to prove that the defendant wilfully refused
to pay restitution. We agree that the court did not make
the constitutionally requisite finding that the defen-
dant’s failure to pay restitution was wilful and, accord-
ingly, we reverse the judgment of the trial court and
remand the case for a new probation revocation
hearing.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On November
25, 2015, the defendant, pursuant to a plea agreement,
pleaded guilty under the Alford doctrine1 to burglary
in the third degree in violation of General Statutes § 53a-
103, larceny in the third degree in violation of General
Statutes § 53a-124, attempt to commit burglary in the
third degree in violation of General Statutes §§ 53a-103
and 53a-49, and failure to appear in the first degree in
violation of General Statutes § 53a-172. The trial court,
J. Fischer, J., canvassed the defendant and found that
there was a factual basis for the guilty pleas and that
they were knowingly and voluntarily made with the
assistance of competent counsel. The trial court later
sentenced the defendant, consistent with the plea agree-
ment, to three years of incarceration on each docket2,
execution suspended, with two years of probation, to
run concurrently. As a condition of probation, the court
ordered the defendant to make restitution for verifiable
out of pocket losses in both dockets. The amount of
restitution was determined by the Office of Adult Proba-
tion to be $18,734.43.
In October, 2017, the defendant was charged with
violation of probation pursuant to § 53a-32 after he was
arrested for additional offenses. At the defendant’s pro-
bation revocation hearing on January 18, 2018, he admit-
ted to violating the terms of his probation and pleaded
guilty to forgery in the second degree in violation of
General Statutes § 53a-139 and to reckless driving in
violation of General Statutes § 14-222.3 As of the date of
the hearing, the defendant had not made any payments
toward the $18,734.43 in restitution that he owed. The
basis for the violation of probation, however, was the
new arrest and the new convictions. The defendant was
represented by a public defender at this hearing and at
every prior court proceeding related to this appeal.
Pursuant to a plea agreement, the court, Newson, J.,
continued the defendant on probation, accepted his
guilty pleas on the new offenses, and sentenced him
to an additional five years of incarceration, execution
suspended, with three years of probation for the forgery
charge. The court ordered two special conditions of
probation: (1) the defendant was not to operate any
motor vehicle unless and until his operating privileges
are validly reinstated by the Department of Motor Vehi-
cles; and (2) the defendant must be either employed or
making reasonable efforts to find full-time employment
during the period of probation, unless he was involved
in some sort of full-time educational or treatment pro-
gram.4 Additionally, the court stated that, ‘‘as to the
probations that were continued, all of those conditions
remain in full force and effect.’’
Between February 15 and May 18, 2018, the defendant
paid a total of $850 in restitution, leaving a remaining
balance of $17,884.43. On January 2, 2019, the state
charged the defendant with two counts of violation of
probation for failure to pay restitution.5 The defendant
denied the charges. A second probation revocation
hearing was held on May 30, 2019. During the eviden-
tiary phase of the hearing, the state called one witness,
Probation Officer Amy Gile.
Officer Gile testified that she had been supervising
the defendant’s probation since approximately January
or February, 2018. For the entirety of this time, the
defendant was not employed. In addition to restitution,
the defendant’s other financial obligations included
court-ordered child support for his daughter. The defen-
dant spoke to Officer Gile many times about seeking
employment. He told Officer Gile about a few positions
that he was considering applying for, but she was
unaware if he ever did so. Officer Gile never asked the
defendant to show her any completed job applications.
The defendant told Officer Gile that he was unable to
find employment, and that he had to provide childcare
for his daughter, which prevented him from working.
Officer Gile also testified that the defendant was
placed in, and later ‘‘discharged . . . successfully’’
from, an alternative in the community program (AIC
program) that assists people with a criminal record in
finding a job. Specifically, the program helps partici-
pants build a resume, provides them with a list of
employers that will hire people with a criminal record,
and offers various online curricula. Officer Gile
received monthly reports from the AIC program that
indicated that the defendant’s participation in the pro-
gram was satisfactory.
Officer Gile further testified that she did not believe
the defendant made bona fide efforts to acquire the
resources to pay restitution. When asked, however, how
she would make a determination as to whether someone
she was supervising had attempted to find employment,
she responded, ‘‘[w]e’d put ‘em in the AIC program for
employment services.’’ The defendant did not call any
witnesses. The court, Chaplin, J., found that the defen-
dant had violated a condition of his probation by not
making sufficient payments toward his restitution obli-
gation, revoked the defendant’s probation, and sen-
tenced him to serve thirty months of incarceration.
In the court’s oral ruling, which later was signed as
its memorandum of decision, the court explained that
the basis for its finding of a violation of probation was
a colloquy between the court and the defendant at the
defendant’s first probation revocation hearing on Janu-
ary 18, 2018.6 Specifically, the court stated that ‘‘as a
point, the court is now just reiterating the basis for the
court’s understanding in making its decision rather than
allowing . . . another opportunity for additional clos-
ing arguments. Noting that upon reviewing the exhibits
provided to the court of the transcripts specifically, the
court does find on the January 18th date of 2018, there
was a violation of probation admission entered by [the
defendant]. On that date, a new probation period began
which is the probation for which we’re before the court
today. Considering that probationary period beginning
that date, there’s a conversation between the court at
that time and [the defendant] . . . . Specifically . . .
[the defendant] makes comments about the ability to
extend the probation and that would afford him the
opportunity to pay the $18,000, noting his difficulty
paying that over a period of one year, and he indicated
that he could actually pay that now that he had two
years. . . .
‘‘Judge Newson . . . then made comments to [the
defendant] indicating that the difference between an
impossibility to pay and difficulty paying are two differ-
ent issues and that the result of not paying on the new
period of probation after [the defendant] indicated he
would be able to pay and he would be making sufficient
efforts to pay. Indicating that he had the ability to pay
and . . . had the willingness to pay demonstrates to
. . . this court, that there was an understanding, based
on [the defendant’s] comments, that he had the ability
to pay and would make sufficient efforts to achieve
that and make those payments as required by the condi-
tions of the probation that were discussed with him at
that time, and he was thankful for having more time
from that . . . probation to pay . . . the amount
owed. Based upon that, the court finds . . . by the
fair preponderance of the evidence that [the defendant]
was, one, aware of the condition of probation of paying
the restitution, at that time aware of the amount of
probation required to be paid, and at this point, he has
engaged in conduct that does not satisfy that condition
and, in fact, he has violated that condition of probation
in not making payments and that he has . . . made
payments that total $850; however, that is not sufficient.
The court finds that he is in violation of the probation
as to each file.’’
Judge Chaplin later granted the defendant’s applica-
tion for waiver of appellate fees and appointment of
appellate counsel based on a finding that the defendant
was indigent. This appeal followed.
In Bearden v. Georgia, supra, 461 U.S. 662, the United
States Supreme Court recognized that it is impermissi-
ble to imprison a defendant who is on probation, solely
because of his lack of financial resources. To do so
‘‘would deprive the probationer of his conditional free-
dom simply because, through no fault of his own, he
cannot pay the fine. Such a deprivation would be con-
trary to the fundamental fairness required by the [f]our-
teenth [a]mendment [to the United States constitu-
tion].’’ Id., 672–73. This case asks us to decide whether
the trial court improperly revoked the defendant’s pro-
bation for failure to pay restitution without first making
a finding that such failure to pay was wilful, as is consti-
tutionally required pursuant to Bearden.7 Specifically,
the defendant argues that the court did not make a
finding that he wilfully refused to pay restitution
because the court (1) stated that ‘‘the state need only
establish that . . . the probationer knew the condition
and engaged in conduct that violated the condition,’’
(2) based its finding that the defendant violated his
probation on statements made by the defendant at his
January 18, 2018 probation revocation hearing, which
statements are immaterial to the issue of whether he
violated his probation during the new probation period
that began after that hearing, (3) never mentioned wil-
fulness in the context of discussing the defendant’s
January 18, 2018 statements, nor made any connection
between those statements and its finding that the defen-
dant wilfully refused to pay restitution in May, 2019,
and (4) subsequently found the defendant indigent in
connection with this appeal.
The state concedes that the trial court did not make
an explicit finding of wilfulness, but contends that the
court made an implicit finding, which is constitutionally
sufficient. In support of that contention, the state points
to the fact that (1) the parties told the court that wil-
fulness was the contested issue, (2) the court expressed
understanding that the defendant was claiming that his
failure to pay was not wilful, and (3) the defendant did
not file a motion for articulation in the absence of which
this court must presume that the trial court acted prop-
erly. In reply, the defendant maintains that the trial
court did not make an implicit finding of wilfulness
and, even if it did, an express finding is required to
satisfy the defendant’s fourteenth amendment rights to
due process and equal protection.8 We agree with the
defendant that the court did not make a finding of
wilfulness and, therefore, the judgment is set aside and
the case is remanded for further proceedings. In addi-
tion, we hold that an explicit finding of wilfulness is
required.
As a preliminary matter, we set forth principles of
law pertaining to the revocation of probation for failure
to pay restitution. ‘‘[R]evocation of probation hearings,
pursuant to § 53a-32, are comprised of two distinct
phases, each with a distinct purpose. . . . In the evi-
dentiary phase, [a] factual determination by a trial court
as to whether a probationer has violated a condition
of probation must first be made.’’ (Citations omitted;
internal quotation marks omitted.) State v. Preston, 286
Conn. 367, 375–76, 944 A.2d 276 (2008). ‘‘The state must
establish a violation of probation by a fair preponder-
ance of the evidence. . . . That is to say, the evidence
must induce a reasonable belief that it is more probable
than not that the defendant has violated a condition of
his or her probation.’’ (Internal quotation marks omit-
ted.) State v. Durant, 94 Conn. App. 219, 224, 892 A.2d
302 (2006), aff’d, 281 Conn. 548, 916 A.2d 2 (2007).
‘‘In the dispositional phase, [i]f a violation is found,
a court must next determine whether probation should
be revoked because the beneficial aspects of probation
are no longer being served. . . . [The two phases] are
governed by two different standards of review. . . . In
making its factual determination [during the evidentiary
phase], the trial court is entitled to draw reasonable
and logical inferences from the evidence. . . . Our
review is limited to whether such a finding was clearly
erroneous. . . . The standard of review of the trial
court’s decision at the [dispositional] phase . . . is
whether the trial court exercised its discretion properly
by reinstating the original sentence and ordering incar-
ceration.’’ (Citations omitted; internal quotation marks
omitted.) State v. Preston, supra, 286 Conn. 375–77.
In Bearden v. Georgia, supra, 461 U.S. 672, the United
States Supreme Court held that the fourteenth amend-
ment to the United States constitution requires 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. If the probationer [wil-
fully] refused to pay or failed to make sufficient bona
fide efforts legally to acquire the resources to pay, the
court may revoke probation and sentence the defendant
to imprisonment . . . . If the probationer could not
pay despite sufficient bona fide efforts to acquire the
resources to do so, the court must consider alternate
measures of punishment other than imprisonment. Only
if alternate measures are not adequate to meet the
[s]tate’s interests in punishment and deterrence may
the court imprison a probationer who has made suffi-
cient bona fide efforts to pay.’’ In other words, ‘‘absent
evidence and findings that the defendant was somehow
responsible for the failure [to pay]’’ it is unconstitutional
to revoke probation. (Emphasis added.) Id., 665.
As our Supreme Court has recognized in a related
context, ‘‘[t]he impact of indigency on a criminal defen-
dant’s liability to pay a fine is codified’’ in our rules of
practice. (Internal quotation marks omitted.) Molinas
v. Commissioner of Correction, 231 Conn. 514, 520,
652 A.2d 481 (1994). Specifically, Practice Book § 43-
17 provides that ‘‘[n]o person shall be incarcerated as a
result of failure to pay a fine unless the judicial authority
first inquires as to the person’s ability to pay the fine.’’
In addition, Practice Book § 43-18 provides that ‘‘[t]he
judicial authority may, upon a finding that the defendant
is able to pay the fine and that the nonpayment is wilful,
order the defendant incarcerated for nonpayment of the
fine.’’ Thus, in Connecticut, it has been acknowledged
judicially, both in cases and through our adopted rules
of practice, that a finding that a defendant had the
ability to pay and wilfully failed to do so is a prerequisite
to incarceration for the failure to pay a fine.
I
The defendant first claims that the trial court failed
to make the requisite finding, pursuant to Bearden, that
the defendant’s failure to pay restitution was wilful.
The state argues that the trial court made this finding
implicitly, and that on appeal this court must presume
that the trial court applied the correct legal standard.
This issue presents a question of law and, therefore, it
is subject to plenary review. See Sosin v. Sosin, 300
Conn. 205, 217, 14 A.3d 307 (2011) (‘‘The interpretation
of a trial court’s judgment presents a question of law
over which our review is plenary. . . . Effect must be
given to that which is clearly implied as well as to
that which is expressed.’’ (Citations omitted; internal
quotation marks omitted.)); see also Jones v. State, 328
Conn. 84, 106–107, 177 A.3d 534 (2018) (whether trial
court correctly applied legal standard raises question
of law subject to plenary review). Accordingly, we must
decide whether the trial court’s ‘‘conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ Missionary Society of Connecti-
cut v. Board of Pardons & Paroles, 278 Conn. 197, 201,
896 A.2d 809 (2006). ‘‘[I]t is well settled that, in the
absence of a contrary indication, we must presume that
the court applied the correct legal standard.’’ State v.
Petersen, 196 Conn. App. 646, 668, 230 A.3d 696, cert.
denied, 335 Conn. 921, 230 A.3d 696 (2020); see also
State v. Cecil J., 291 Conn. 813, 827 n.12, 970 A.2d
710 (2009) (‘‘in [the] absence of contrary evidence, we
presume that the trial court . . . undertook the proper
analysis of the law and the facts’’ (internal quotation
marks omitted)).
In the present case, the trial court explicitly stated
that the basis for its determination that the defendant
had violated a condition of probation by failing to pay
restitution was the defendant’s statement on January
18, 2018, that the continuation of extension of his proba-
tion ‘‘will help me pay the [restitution] . . . . So now
I can actually pay it.’’ See footnote 6 of this opinion.
The trial court explained that this amounted to an ‘‘[indi-
cation] that he could actually pay.’’ The court then reit-
erated that the defendant had indicated that he ‘‘would
be able to pay and he would be making sufficient efforts
to pay’’ and, further, such indication that ‘‘he had the
ability to pay and . . . had the willingness to pay dem-
onstrates to the court . . . that he had the ability to
pay and would make sufficient efforts to achieve that
and make those payments . . . .’’ (Emphasis added.)
The court’s reasoning in this regard implies that it
did not correctly apply the legal standard. Specifically,
the trial court cannot make the constitutionally requi-
site finding that the defendant was at fault for the failure
to pay restitution unless it determines that the defen-
dant, at the time he failed to make the required pay-
ments, either had the ability to pay and wilfully chose
not to, or, that the defendant did not have the ability
to pay and ‘‘failed to make sufficient bona fide efforts
legally to acquire the resources to pay.’’ Bearden v.
Georgia, supra, 461 U.S. 672; see State v. Pieger, 240
Conn. 639, 653 n.7, 692 A.2d 1273 (1997) (‘‘it is well
settled that the defendant’s probation could not be
revoked based upon his nonpayment . . . unless the
trial court first determined that he was able to pay the
money and that his nonpayment was wilful’’ (empha-
sis added)).
Here, the trial court concluded that the defendant had
the ability to pay based on the defendant’s statement
on the first day of his probationary period, which, in
context, is best understood as an expression of an inten-
tion to pay going forward, rather than an admission
that he had the actual ability to pay. In fact, it can
reasonably be inferred that the defendant’s January 18,
2018 statement that he had the ability to pay $18,000
in restitution at that time was aspirational because,
at that hearing, he was still represented by a public
defender, reflecting his indigent status. See Moscone v.
Manson, 185 Conn. 124, 131 n.3, 440 A.2d 848 (1981)
(‘‘[a]lthough the record does not expressly indicate the
petitioner’s indigency, we can infer that fact from his
continued legal representation by public defenders’’).
Nevertheless, even if the defendant’s statement could
be taken as an admission that, on January 18, 2018, he
had sufficient financial resources to make restitution
payments, the court was still required to ‘‘inquire into
the reasons for the [defendant’s] failure to pay’’ more
than the $850 that he paid in the months that followed.
Bearden v. Georgia, supra, 461 U.S. 672. Whether the
defendant had the actual ability to pay or had failed to
make good faith efforts to acquire legally the resources
to pay throughout the duration of the probation period
is an indispensable aspect of this inquiry. There could
have been many intervening events that impacted the
defendant’s ability to pay or his efforts to acquire legally
the resources to pay, and Bearden mandates that the
court take into consideration any such events. More-
over, the fact that, when ‘‘reiterating the basis for the
court’s understanding in making its decision,’’ the court
pointed only to the defendant’s stated ability to pay,
which was made nearly one and one-half years prior,
indicates that the trial court did not apply the requisite
legal standard. Relying on the defendant’s earlier state-
ment at the beginning of his probationary period that
he can actually pay cannot substitute for an inquiry at
the time the state seeks to revoke his probation into
whether he had the means to pay or had failed to make
sufficient bona fide efforts legally to acquire the
resources to pay.
Here, the evidence does not logically support the
conclusion that the defendant had the ability to pay
restitution during his probationary period because there
is no evidence that he had any source of income. He
was not employed since at least January or February,
2018. There was no evidence that he had other assets
that could be applied toward restitution. In addition,
his expenses included court-ordered child support for
his daughter and his own basic needs.9
Furthermore, to the extent that the court’s memoran-
dum of decision can be read as finding that the defen-
dant ‘‘failed to make sufficient bona fide efforts legally
to acquire the resources to pay’’; Bearden v. Georgia,
supra, 461 U.S. 472; the evidence did not logically sup-
port such a conclusion.10 Because the court’s references
to ‘‘sufficient efforts’’ in its decision are framed in terms
of future conduct (i.e., ‘‘[the defendant] indicated . . .
he would be making sufficient efforts to pay’’ and ‘‘that
he . . . would make sufficient efforts to achieve that
and make those payments as required by the conditions
of probation’’), the court’s logic suffered from the same
defect as it did with regard to the defendant’s ability
to pay. That is, the court did not take into consideration
the actual efforts the defendant made to acquire legally
the resources to pay during the probation period.
Rather, it based its conclusion that the defendant vio-
lated probation on the mere fact that he expressed an
intention to make sufficient efforts and erroneously
inferred that, because he ultimately did not pay more
than $850, he must not have honored that intention.
That is not the constitutionally requisite inquiry
under Bearden.
Furthermore, the evidence in the record of what the
defendant actually did during the probationary period
indicates that he made efforts to acquire legally the
resources to pay. Specifically, he was placed in the AIC
program to help him find employment, his participation
was reported to be satisfactory, and he was ultimately
‘‘discharged successfully’’ from the program. He also
told Officer Gile about a few positions for which he
was considering applying. Whether those efforts could
be deemed ‘‘sufficient’’ and ‘‘bona fide’’ is a factual
determination for the trial court to make. We are not
persuaded, however, based on our interpretation of the
trial court’s memorandum of decision, that the court
actually made that determination. Accordingly, it did
not apply the correct legal standard.
Our conclusion is further supported by the court’s
statement that, ‘‘in fact, [the defendant] has violated
that condition of probation in not making payments
and that he has made one payment or has made pay-
ments that total $850; however, that is not sufficient.’’
(Emphasis added.) This suggests that the court’s focus
was on the fact that the defendant did not pay, not on
whether he had the ability to pay and wilfully refused
to do so, or did not have the ability to pay and failed
to make sufficient bona fide efforts legally to acquire
the resources to pay. See Bearden v. Georgia, supra,461 U.S. 672.
Our decision in State v. Martinik, 1 Conn. App. 70,
467 A.2d 1247 (1983), likewise supports a conclusion
that the court did not make the necessary finding that
the defendant’s failure to pay was wilful. In that case,
just as here, the trial court revoked the defendant’s
probation for failure to make restitution payments. See
id., 71. Specifically, the trial court stated that revocation
was appropriate ‘‘because of the defendant’s complete
lack of cooperation with his probation officer in making
the restitution payments.’’ (Internal quotation marks
omitted.) Id. This court, applying Bearden, held that
the trial court did not make an appropriate finding
regarding wilfulness or review alternative punishments
and, accordingly, set aside the judgment and remanded
the case for further proceedings. Id., 72. As the defen-
dant points out, despite the fact that the trial court in
Martinik was silent on the issue of wilfulness, this court
did not presume that the court applied the correct legal
standard and made an implicit finding of wilfulness. It
concluded, as we do here, that the court did not make
the requisite finding.
Because we conclude that the trial court’s judgment
should be set aside for failure to make a finding of
wilfulness, it is not necessary to reach the defendant’s
second claim that the state introduced insufficient evi-
dence to prove that the defendant wilfully refused to
pay restitution.11
II
Even if we were to conclude that the court made
an implicit finding that the defendant’s failure to pay
restitution was wilful, we next consider whether a trial
court in Connecticut is required to make an explicit
finding on the record that a defendant’s failure to pay
restitution is wilful, before revoking probation. Neither
the United States Supreme Court nor our Supreme
Court explicitly has addressed this issue. The principles
articulated in these cases, however, lead us to the con-
clusion that an explicit finding is required to satisfy the
defendant’s fourteenth amendment rights.12
As our Supreme Court acknowledged in State v. Hill,
256 Conn. 412, 421, 773 A.2d 931 (2001), the holding in
Bearden ‘‘was grounded on the court’s sensitivity to
the treatment of indigents in the criminal justice system
and its recognition of the due process and equal protec-
tion concerns that the indigence of a defendant raises.’’
Moreover, probation itself, ‘‘once granted, is a constitu-
tionally protected interest. The due process clause of
the fourteenth amendment to the United States consti-
tution requires that certain minimum procedural safe-
guards be observed in the process of revoking the condi-
tional liberty created by probation. . . . This is so
because the loss of liberty entailed is a serious depriva-
tion requiring that the [probationer] be accorded due
process.’’ (Citations omitted; internal quotation marks
omitted.) State v. Davis, 229 Conn. 285, 294, 641 A.2d
370 (1994).
The United States Supreme Court has recognized
that, among the minimum procedural safeguards that
must be observed in a proceeding to revoke probation,
is the requirement of ‘‘a written statement by the [fact
finders] as to the evidence relied on and the reasons
for revoking [probation or] parole.’’ (Internal quotation
marks omitted.) Gagnon v. Scarpelli, 411 U.S. 778, 786,
93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), citing Morrissey
v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 33 L. Ed.
2d 484 (1972).13 ‘‘The written statement required by Gag-
non and Morrissey helps to insure accurate [fact-find-
ing] with respect to any alleged violation and provides
an adequate basis for review to determine if the decision
rests on permissible grounds supported by the evi-
dence.’’ Black v. Romano, 471 U.S. 606, 613–14, 150 S.
Ct. 2254, 85 L. Ed. 2d 636 (1985).
Moreover, in Turner v. Rogers, 564 U.S. 431, 444–45,
131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011), the United
States Supreme Court addressed the issue of whether
the due process clause grants an indigent defendant a
right to state appointed counsel at a civil contempt
proceeding, which may lead to his or her incarceration.
Id., 441. The court explained that, in such cases, like
in probation revocation proceedings for failure to pay
restitution, ‘‘the critical question likely at issue . . .
[concerns] the defendant’s ability to pay.’’ Id., 446. In
its analysis, the court considered ‘‘the distinct factors
that . . . [it] has previously found useful in deciding
what specific safeguards the [c]onstitution’s [d]ue [p]ro-
cess [c]lause requires in order to make a proceeding
fundamentally fair.’’ (Internal quotation marks omit-
ted.) Id., 444, citing Mathews v. Eldridge, 424 U.S. 319,
335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). Those factors
are: ‘‘(1) the nature of the private interest that will
be affected, (2) the comparative risk of an erroneous
deprivation of that interest with and without additional
or substitute procedural safeguards, and (3) the nature
and magnitude of any countervailing interest in not
providing additional or substitute procedural require-
ment[s].’’ (Internal quotation marks omitted.) Turner
v. Rogers, supra, 444–45.
The private interest at issue in Turner was the same
as it is here: ‘‘an indigent defendant’s loss of personal
liberty through imprisonment.’’ Id., 445. The court rea-
soned that ‘‘[t]he interest in securing . . . freedom
from bodily restraint, lies at the core of the liberty
protected by the [d]ue [p]rocess [c]lause. . . . And we
have made clear that its threatened loss through legal
proceedings demands due process protection. . . .
Given the importance of the interest at stake, it is obvi-
ously important to ensure accurate [decision-making]
in respect to the key ability to pay question.’’ (Citations
omitted; internal quotation marks omitted.) Id. The
court then proceeded to identify procedural safeguards
that ‘‘can significantly reduce the risk of an erroneous
deprivation of liberty,’’ one of which is ‘‘an express
finding by the court that the defendant has the ability
to pay.’’ Id., 447–48.
In light of the constitutional significance of the inter-
ests at stake when a trial court considers revoking pro-
bation for the failure to pay restitution, it is imperative
that the court engages in the requisite inquiry into the
reasons for the failure to pay, and makes accurate ‘‘find-
ings’’ regarding whether the defendant was ‘‘somehow
responsible for the failure.’’ Bearden v. Georgia, supra,461 U.S. 665. If these findings are not made on the
record, it is more difficult to review on appeal the sound-
ness of the court’s decision, as the present case illus-
trates. Both the probationer and the state have an inter-
est in assuring that the probationer is not unjustifiably
deprived of his liberty. See Black v. Romano, supra,471 U.S. 621 (Marshall, J., concurring) (‘‘[I]n choosing
probation, the [s]tate expresses a conclusion that its
interests will be met by allowing an individual the free-
dom to prove that he can rehabilitate himself and live
according to the norms required by life in a community.
Bearden then recognizes that, once this decision is
made, both the [s]tate and the probationer have an
interest in assuring that the probationer is not deprived
of this opportunity without reason.’’); see also Gagnon
v. Scarpelli, supra, 411 U.S. 785–86 (‘‘[b]oth the proba-
tioner . . . and the [s]tate have interests in the accu-
rate finding of fact and the informed use of discretion—
the probationer . . . to insure that his liberty is not
unjustifiably taken away and the [s]tate to make certain
that it is neither unnecessarily interrupting a successful
effort at rehabilitation nor imprudently prejudicing the
safety of the community’’). We therefore hold that the
trial court is required to make explicit findings on the
record as to whether the probationer had the ability to
pay and, if so, whether the failure to pay was wilful,
and, if not, whether the probationer made sufficient
bona fide efforts legally to acquire the resources to pay.
This holding is consistent with appellate courts in
other states that have persuasively held that, in proba-
tion revocation proceedings for the failure to pay resti-
tution, trial courts are required to make explicit findings
regarding whether the defendant was able to pay restitu-
tion and whether the failure to pay was wilful. See Del
Valle v. State, 80 So. 3d 999, 1011 (Fla. 2011) (‘‘To comply
with the rules set forth in Bearden and Stephens [v.
State, 630 So. 2d 1090 (Fla. 1994)], trial courts must
inquire into a probationer’s ability to pay and make an
explicit finding of [wilfulness] . . . . We emphasize
that the probationer’s ability to pay is an element of
[wilfulness] in the context of determining whether there
is a [wilful] violation for failure to pay a monetary obli-
gation as a condition of probation.’’ (Emphasis in origi-
nal.)); Commonwealth v. Marshall, 345 S.W.3d 822, 824
(Ky. 2011) (‘‘We . . . reconfirm the principle of due
process that the trial court must make clear findings
on the record specifying the evidence relied upon and
the reasons for revoking probation. This requirement
specifically includes findings about whether the defen-
dant made sufficient bona fide efforts to make pay-
ments.’’); State v. Parsons, 717 P.2d 99, 102–103 (N.M.
App. 1986) (‘‘Was the trial court required to adopt find-
ings of fact or indicate in the record its determination
of whether defendant had the ability to pay sums
ordered and whether defendant’s failure to pay was
[wilful]? We answer the question in the affirmative.’’).
But see United States v. Mitchell, 317 Fed. Appx. 963,
965 (11th Cir. 2009) (‘‘[A]lthough the district court did
not explicitly state that [the defendant’s] behavior was
[wilful], it did find that [the defendant] made a mockery
of supervised release. The record thus reveals that the
district court implicitly found [the defendant’s] failure
to pay to be [wilful] and that [the defendant] did not
make a bona fide effort to acquire resources to pay the
fee.’’); State v. Brady, 300 P.3d 778, 780 (Utah App.
2013) (‘‘These comments by the trial court illustrate
its implicit finding of [wilfulness]. [The probationer]
argues that an explicit finding is mandatory. We
disagree.’’).
The judgment is reversed and the case is remanded
for a new probation revocation hearing.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
There were two separate dockets in this case, both in the judicial district
of Windham. The first docket, Docket No. CR-XX-XXXXXXX-S, included the
charges of burglary in the third degree and larceny in the third degree. The
second docket, Docket No. CR-XX-XXXXXXX-S, included the charges of attempt
to commit burglary in the third degree and failure to appear in the first degree.
3
The guilty plea to forgery in the second degree was made pursuant to
the Alford doctrine.
4
The court did not order restitution with respect to the forgery or to the
reckless driving conviction.
5
Specifically, the state alleged that the defendant violated his probation
in that he ‘‘has not made a restitution payment since May 18, 2018.’’
6
The relevant portion of that exchange is as follows:
‘‘The Court: . . . [A]nything you want to say before the court imposes
sentence?
‘‘[The Defendant]: Yeah. That I just appreciate the opportunity to, you
know, extend my probation; it will help me pay the eighteen thousand ‘cuz
it was a pretty penny to pay over one year, two years and it was impossible.
So now I can actually pay it, so—
‘‘The Court: He didn’t pay anything?
‘‘[The Prosecutor]: Not as of October of—not as of the first eleven months
of his probation.
‘‘The Court: Okay. Well . . . I’ll put it to you this way: I don’t get involved
and I don’t know the facts and circumstances of the case and I imagine
there was something worthwhile by . . . the state’s bothering to put you
back on probation. But, there’s a difference between it being difficult to
pay back your obligation and doing nothing. Nothing’s what you did. People
get sent to prison for doing nothing when it comes to paying back their
restitution obligations. So [it] appears you need to take this entire thing a
little more seriously and start making some dent in your obligation because
you need to understand that if you come back again, regardless of what the
lawyers do, the court does not have to take their deal, if it doesn’t want to.
Do you understand that?
‘‘[The Defendant]: Oh, I understand, yes.
‘‘The Court: My two cents would be [for] you [to] go to prison today for
not paying anything and picking up new charges like this. So take the
opportunity. I don’t—take you at your word you take it seriously; but you
know the old saying, actions speak a lot louder than words.’’
7
The defendant asserts that his claims are preserved because, during the
revocation hearing, defense counsel brought to the trial court’s attention
the fact that it must find that the defendant wilfully refused to pay restitution
before revoking his probation. Alternatively, the defendant argues that
because his claims are constitutional in nature, they are reviewable under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). We conclude
that the claims are preserved and the state does not argue otherwise.
8
As the court acknowledged in Bearden, ‘‘due process and equal protec-
tion principles converge in the [c]ourt’s analysis’’ in cases involving indigents
in the criminal justice system. Bearden v. Georgia, supra, 461 U.S. 665.
Specifically, in the context of a defendant whose probation has been revoked
for failure to pay restitution, the court explained ‘‘[t]here is no doubt that
the [s]tate has treated the petitioner differently from a person who did not
fail to pay the imposed fine and therefore did not violate probation. To
determine whether this differential treatment violates the [e]qual [p]rotec-
tion [c]lause, one must determine whether, and under what circumstances,
a defendant’s indigent status may be considered in the decision whether to
revoke probation. This is substantially similar to asking directly the due
process question of whether and when it is fundamentally unfair or arbitrary
for the [s]tate to revoke probation when an indigent is unable to pay the
fine.’’ Id., 665–66.
9
We note that the state generally bears the burden of establishing a
violation of probation by a fair preponderance of the evidence. See State
v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994). When the alleged probation
violation is the failure to pay restitution, however, there is no clear Connecti-
cut authority with regard to whether the state bears the burden of proving
that the defendant wilfully failed to pay, or whether the defendant has the
burden of raising and proving inability to pay as a defense. Bearden, itself,
simply states that in revocation proceedings, the court ‘‘must inquire into
the reasons for the failure to pay.’’ Bearden v. Georgia, supra, 461 U.S. 672.
We conclude that the burden is properly on the state to demonstrate that
the defendant had the ability to pay and wilfully refused to do so or failed
to make sufficient bona fide efforts legally to acquire the resources to pay,
for several reasons. First, the state has the ultimate burden of proving a
violation. The term violation denotes unlawful conduct, and if the defen-
dant’s failure to pay restitution is not wilful, it cannot be considered unlawful
conduct because the state cannot punish a person solely on the basis of
his poverty. See id.. Additionally, the state should bear the burden of proving
wilfulness because probation revocation proceedings, although civil in
nature, implicate the defendant’s liberty interest.
10
We note, however, that even if the defendant had the ability to pay
restitution, a determination would still need to be made regarding whether
his failure to pay was wilful. In other words, ability to pay is a necessary
prerequisite to a finding of wilfulness, but it is not, in itself, sufficient to
conclude that the failure to pay was wilful.
11
Unlike in the criminal context, where we would ordinarily address a
claim of insufficiency of the evidence as a preliminary matter because double
jeopardy principles dictate that ‘‘if we were to rule that the evidence was
insufficient, the defendant would be entitled to an acquittal rather than a
new trial’’ (internal quotation marks omitted); State v. Gray, 200 Conn. 523,
535–56, 512 A.2d 217, cert. denied, 497 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d
373 (1986); it is unnecessary to do so here because those same concerns
do not apply in the probation revocation proceeding context. See State v.
Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994) (‘‘Although a [probation]
revocation proceeding must comport with the requirements of due process,
it is not a criminal proceeding. . . . It therefore does not require all of the
procedural components associated with an adversary criminal proceeding.’’
(Citations omitted; internal quotation marks omitted.)).
12
We reach this issue because it is germane to the controversy and provides
an independently sufficient basis to reverse the trial court’s decision. See
Cruz v. Montanez, 294 Conn. 357, 377, 984 A.2d 705 (2009) (‘‘[I]t is not dictum
. . . when a court . . . intentionally takes up, discusses and decides a
question germane to, though not necessarily decisive of, the controversy.
. . . Rather, such action constitutes an act of the court [that] it will thereafter
recognize as a binding decision.’’ (Internal quotation marks omitted.)).
13
In Gagnon v. Scarpelli, supra, 411 U.S. 782, the court held that the due
process requirements established for parole revocation proceedings were
also applicable to probation revocation proceedings.