State v. Geoffrey A. Regan ( 2022 )

May 2, 2022
Supreme Court
No. 2021-47-C.A.
(N2/10-173A)
State :
v. :
Geoffrey A. Regan. :
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,
Rhode 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.
Supreme Court
No. 2021-47-C.A.
(N2/10-173A)
State :
v. :
Geoffrey A. Regan. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
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.
Facts and Travel
In January 2011, a judgment of conviction entered following defendant’s
plea of nolo contendere to the charge of unlawful appropriation in an amount
greater than $1,000, in violation of G.L. 1956 § 11-41-11.1. He was sentenced to
1
The defendant, who is a disbarred lawyer, appeared pro se.
-1-
ten years at the Adult Correctional Institutions, with one year to serve at the ACI,
one year to serve on home confinement, and eight years suspended, with
probation.2 The defendant also was required to perform 250 hours of community
service and, relevant to this appeal, to pay restitution in the amount of
$520,295.46. No hearing was held to determine defendant’s ability to satisfy this
obligation. In June 2017, Regan signed a periodic payment plan in the Superior
Court, providing that he was to make monthly payments of $200 toward his
restitution obligation (the payment plan). There was no dispute that Regan has
been in full compliance with the payment plan.
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 failed 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.
2
On May 4, 2010, defendant filed a request to enter a plea, and on December 16,
2010, the Superior Court held a sentencing hearing; the sentence was executed, and
the judgment of conviction entered on January 10, 2011.
-2-
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 pay 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.
3
The sentencing hearing on the finding of probation violation was initially
scheduled for March 2021, and then was rescheduled on several occasions, while
-3-
Standard of Review
To establish a probation violation, the state must demonstrate “by a fair
preponderance of the evidence that the defendant breached a condition of the
defendant’s probation[.]” Super. R. Crim. P. 32(f). “This Court will reverse a
probation-violation finding only if the hearing justice acted arbitrarily or
capriciously.” LaRoche, 883 A.2d at 1154.
Analysis
Before this Court, defendant argues that the trial justice erred 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
prison “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
capricious, we vacate the order of the Superior Court.
Regan was required to continue making payments. The sentencing hearing has not
yet occurred.
-4-
“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 action 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 Regan 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 to 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[,]” according
to G.L. 1956 § 12-19-8.1, is for a defendant to “[p]ay restitution * * * based on the
-5-
defendant’s ability to pay[.]” Section 12-19-8.1(a)(8) (emphasis added).
Consequently, in order to constitute a probation violation with consequences for a
breach of this condition, the court must determine a defendant’s ability and efforts
to pay restitution—that is, “the reasons for the noncompliance.” LaRoche, 883
A.2d at 1154.
“If the probationer has made sincere efforts to legally acquire the necessary
money, but remains unable to comply with a restitution obligation, 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 be a declaration that a defendant
was noncompliant with a payment obligation in order for a finding of probation
violation to be valid. See § 12-19-8.1(d); see also Super. R. Crim. P. 32(f). The
running of time, such that payment-in-full is not achievable, is not enough to call
for a prison sentence. See Bearden, 461 U.S. at 672-73; see also LaRoche, 883
A.2d at 1154.
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
-6-
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 before 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 are 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 victim and is enforceable as such. See G.L. 1956 § 12-28-5.1. This is
a collateral consequence of a conviction or plea. Thereafter, “[t]he state may
maintain a civil action to place a lien on the personal or real property of a
defendant who is assessed restitution, as well as to seek wage garnishment, and/or
seek enforcement of civil judgment entered in accordance with § 12-28-5.1
consistent with state and federal law.” Section 12-19-34(c). This is the
responsibility of the state and does not implicate a prison sentence hanging over
one’s head. See id.
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
-7-
for payment is set forth in an order and payment is not made in accordance with
the order, interest begins to accrue, with costs and fees, and the judgment becomes
enforceable in accordance with laws applicable to “civil cases generally.” See
§ 12-28-5.1. Accordingly, if a defendant is compliant with court-ordered
restitution payments and simply runs out of time, the remedy does not include
incarceration, absent a finding of willful violation. See State v. Price, 820 A.2d
956, 969 (R.I. 2003) (discussing civil contempt to coerce compliance with a court
order). In this case, because Regan’s sentence has long expired, there are other
statutory remedies that the state may pursue. See § 12-19-34.
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.
-8-
Although a probation violation may result in lifting the suspended portion of
a sentence and imposition of imprisonment, it is well established that a probation
violation does not allow the trial justice to extend probation or impose a sentence
after probation has expired. See, e.g., State v. Tavares, 837 A.2d 730, 733 (R.I.
2003) (“The purpose of having a time limitation on the length of the probation is to
assure the defendant that once the probation has expired, ‘he will not have the
threat of imprisonment for this offense hanging over his head for the rest of his
life.’”) (quoting State v. Santos, 498 A.2d 1024, 1026 (R.I. 1985)).
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 order of the Superior Court. The
papers in this case may be remanded to the Superior Court.
-9-
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.
No. 2021-47-C.A.
Case Number
(N2/10-173A)
Date Opinion Filed May 2, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
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
For State:
Brianne M. Chevalier
Attorney(s) on Appeal Department of Attorney General
For Defendant:
Geoffrey A. Regan, Pro Se
SU-CMS-02A (revised June 2020)