Jordan v. State

Timothy Bryan JORDAN v. STATE of Arkansas

CR 96-871                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 27, 1997


1.   Criminal law -- revocation of probation -- factors to be
     considered. -- A trial court should not automatically revoke
     probation simply because the defendant cannot pay his fine,
     without first determining that the defendant failed to make
     sufficient bona fide efforts to pay or that adequate
     alternative forms of punishment did not exist; matters that
     should be considered by a court reviewing revocation of a
     probationary sentence for failure to pay restitution include
     consideration of the defendant's employment status, earning
     ability, financial resources, the willfulness of the
     defendant's failure to pay, and any other special
     circumstances that may have a bearing on the defendant's
     ability to pay.

2.   Criminal law -- determination must be made that failure to pay
     is willful -- when probation may be revoked. -- Where there is
     no determination that the failure to pay restitution is
     willful, a probationer cannot be punished by imprisonment
     solely because of a failure to pay; a defendant's failure to
     make bona fide efforts to seek employment or to borrow money
     to pay restitution may justify imprisonment; probation may be
     revoked if the trial court finds by a preponderance of the
     evidence that the defendant inexcusably failed to comply with
     a condition of probation. 

3.   Appeal & error -- argument not made at trial -- argument not
     reached on appeal. -- Where appellant's argument was not made
     to the trial court it was not addressed on appeal; even
     constitutional arguments are waived when they are not argued
     below.    

4.   Appeal & error -- issue not reached -- case remanded on other
     grounds. -- Appellant's argument that the trial court abused
     its discretion in ordering the sentences to run consecutively
     was not reached because the case was remanded on other
     grounds.

5.   Criminal law -- no record of determination that appellant's
     failure to pay restitution was result of willful failure to
     pay -- judgment revoking probation reversed and remanded. --
     Where there were no findings as to appellant's total earnings,
     what employment he was able to secure for what period of time,
     whether he owned an automobile or other property, or whether
     he had access to resources of his own which he willfully
     refused to apply to the payment of restitution, nor was
     appellant's indigent status addressed in the record of this
     case, there was no determination that appellant's failure to
     pay restitution was the result of a willful refusal to pay,
     rather than an inability to pay, and the judgment revoking the
     probation was reversed and the case remanded.


     Appeal from Jefferson Circuit Court; H.A. Taylor, Judge;
reversed and remanded.
     Maxie G. Kizer, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Ray Thornton, Justice.
     The primary issue in this case is whether the trial court's
order revoking probation and sentencing appellant to serve thirty-
five years in prison meets the test of fundamental fairness
required under the Due Process Clause when there have been no
findings of fact upon which to base a judicial determination that
the failure to pay court-ordered restitution was a willful refusal
to comply with the court order, and not the result of appellant's
inability to pay.  We have concluded that the due process
requirement of fundamental fairness has not been met, and the case
is reversed and remanded.
     The appellant, Timothy Bryan Jordan, was charged with crimes
of residential burglary, theft of property, and two counts of theft
by receiving.  Based upon a plea bargain with the State, Jordan
entered a guilty plea to the four counts on March 21, 1995.  The
trial court deferred further proceedings and placed Jordan on
probation for five years conditioned in part on the payment of
$7,312.50 in restitution to Mr. Alfred Helvey.  In agreeing to the
plea bargain, the State recognized that its interest in punishment
and deterrence did not require imprisonment, but would be satisfied
by probation and restitution.  The probation order states, "If the
defendant successfully completes his period of probation this
record will be expunged on application therefor."
     Jordan did not report to his probation officer and failed to
make any payments, and the State petitioned to revoke probation. 
A hearing on the State's motion to revoke was held on August 9.  At
this hearing, Jordan asserted that he could catch up with the
required restitution by paying $500 a month, based upon earnings of
$200 to $300 per week from a lawn service company.  He testified
that his living expenses were only $30 to $35 a week.  The hearing
was adjourned and reconvened on August 25.
     By the August 25 hearing, Jordan was no longer working for the
lawn service company, but his father testified that he would help
him find a job.  The trial court advised Jordan that,
notwithstanding the urging by the State and the probation officer
that the probation be revoked, "This court is far more interested
in seeing that Mr. Helvey gets his money back than he is in
sentencing you in the Department of Correction."  The trial court
then informed Jordan's father that the young man would need a lot
of support from his father, his grandmother, and other friends to
meet the restitution schedule of $500.00 per month for seven
consecutive months, commencing in September, followed by payments
of $100 per month until the restitution amount was paid. 
     The court next convened on December 11 to review progress made
toward restitution.  Only one payment of $500 had been made, with
the help of Jordan's grandmother.  Jordan claimed that he had hurt
his leg, had lost his job, and had been out of work for three
months.  He said that he had just gotten some equipment to begin
painting cars.  The court said, "I don't think you're going to make
it, Mr. Jordan . . . I think you've got more than you can say grace
over . . . You need to go on down."  Jordan's probation officer
testified that he had been reporting as required by the order, that
he had not tested positive for drugs, that he had no outstanding
charges against him, and that his only violation was nonpayment of
restitution, which was then in arrears by $1,000.
     Jordan was returned to jail and on January 9, 1996, the final
hearing was held.  The trial court opened the hearing by advising
him, "Mr. Jordan, apparently, you're not going to receive any kind
of assistance from your family or friends.  The Court was in hope
that somebody would come forward to give you some assistance, but
apparently that's not going to be."  Mr. Helvey, the victim, was
then called as a witness and urged the court to impose the maximum
sentence.  Jordan then pleaded with the court for another chance,
stating that he might be able to get a loan of $1500 to $2000 to
apply to restitution, and the court replied that if he gets the
loan, "we might reconsider what we're going to do right now, Mr.
Jordan."  The trial judge then revoked probation and sentenced
Jordan to three ten-year terms and one five-year term in the
Arkansas Department of Correction, with the terms to run
consecutively.
     In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court
dealt with the issue whether the Fourteenth Amendment prohibits a
State from revoking an indigent defendant's probation for failure
to pay a fine and restitution.  In opening its discussion of this
issue, the Court states:
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.
     Reviewing testimony from the probation revocation hearing in
Bearden, the Supreme Court observed:
While the sentencing court commented on the availability
of odd jobs such as lawn mowing, it made no finding that
the petitioner had not made sufficient bona fide efforts
to find work, and the record as it presently stands would
not justify such a finding. . . .  The State argues that
the sentencing court determined that the petitioner was
no longer a good probation risk.  In the absence of a
determination that the petitioner did not make sufficient
bona fide efforts to pay or to obtain employment in order
to pay, we cannot read the opinion of the sentencing
court as reflecting such a finding.
Id. at 673-74.
     Arkansas has adopted statutory guidelines as to what matters
shall be considered by a court reviewing revocation of a
probationary sentence for failure to pay restitution.  Ark. Code
Ann.  5-4-205 (Repl. 1993) provides as follows:
     (2)  In determining whether to revoke probation or
conditional release, the court or releasing authority
shall consider the defendant's employment status, earning
ability, financial resources, the willfulness of the
defendant's failure to pay, and any other special
circumstances that may have a bearing on the defendant's
ability to pay.
Id.  5-4-205(c)(2).  The record in the case before us contains no
finding of fact that Jordan's delinquency in making restitution
payments resulted from a willful refusal to pay, rather than from
an inability to pay, and the record as it stands would not justify
such a finding.  There is a finding that his friends and family
have failed to help him make restitution, but it is not reasonable
to conclude that this lack of assistance from others establishes
Jordan's willful refusal to pay.  
     There are no findings as to Jordan's total earnings, what
employment he was able to secure for what period of time, whether
he owned an automobile or other property, or whether he had access
to resources of his own which he willfully refused to apply to the
payment of restitution.  We note that the indigent status of Jordan
is not addressed in the record of this case, although it is clear
that this appeal is in forma pauperis.  
     This contrasts with the record in Hoffman v. State, 289 Ark.
184, 711 S.W.2d 151 (1986), where we found that the trial court's
decision to revoke probation was not clearly against a
preponderance of the evidence when a full disclosure of defendant's
earnings of $8,211.75 and application of those funds to payments
including restitution was part of the evidence considered by the
trial court.  In Hoffman, we affirmed the decision of the trial
court, stating:
Appellant's failure to make the ordered payments, in
light of his standard of living, his purchase of a
$17,000 car, and the fact that he did not search for a
job outside the field of auto sales, can be construed as
an inexcusable failure to comply with the conditions of
his suspension.
Id. at 189, 711 S.W.2d  at 153.
     Where there is no determination that the failure to pay
restitution is willful, it is clear that a probationer cannot be
punished by imprisonment solely because of a failure to pay.  The
Supreme Court in Bearden stated: "[I]f the State determines a fine
or restitution to be the appropriate and adequate penalty for the
crime, it may not thereafter imprison a person solely because he
lacked the resources to pay it."  Bearden, 461 U.S.  at 667-68
(quoting Tate v. Short, 401 U.S. 395 (1971)).   See also Williams
v. Illinois, 399 U.S. 235 (1970).
     A defendant's failure to make bona fide efforts to seek
employment or to borrow money to pay restitution may justify
imprisonment.  Under Arkansas law, probation may be revoked if the
trial court finds by a preponderance of the evidence that the
defendant inexcusably failed to comply with a condition of
probation.  Ark. Code Ann.  5-4-309(d) (Repl. 1993); see also Ark.
Code Ann.  5-4-310 (Repl. 1993).  See, e.g., Hoffman, 289 Ark. at
189, 711 S.W.2d  at 153.  Considerations such as those enumerated in
Ark. Code Ann.  5-4-205(c)(2), as quoted above, are required
before probation is revoked.
     Jordan makes two additional arguments.  The first is that
imposition of consecutive sentences aggregating thirty-five years
constitutes cruel and unusual punishment.  We do not address this
argument because it was not made to the trial court.  Even
constitutional arguments are waived when they are not argued below. 
Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994).  
     The second argument is that the trial court abused its
discretion in ordering the sentences to run consecutively.  We do
not reach this issue because the case is remanded on other grounds.
We note that throughout the proceedings the trial court repeatedly
stated that it did not wish to send Jordan to prison, but was
primarily concerned about his making restitution to Mr. Helvey.  As
we remand this case for a determination whether Jordan's failure to
pay reflects a willful refusal to comply with the order of
restitution or simply the inability to pay, the trial court will
have the opportunity to engage in a careful balancing of all
relevant factors when deciding whether probation should be revoked,
and if revoked, what punishment should be imposed.
     Because there was no determination that Jordan's failure to
pay restitution was the result of a willful refusal to pay, rather
than an inability to pay, we have concluded that the judgment
revoking the probation must be reversed and the case remanded.