State v. Johnson

393 Mont. 320

430 P.3d 494

2018 MT 277

STATE of Montana, Plaintiff and Appellee,

v.David Cordell JOHNSON, Defendant and Appellant.

DA 16-0657

Supreme Court of Montana.

Submitted on Briefs: August 1, 2018

Decided: November 20, 2018

For Appellant: Chad M. Wright, Appellate Defender, Office of the Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Kirsten Pabst, Missoula County Attorney, Barbara Harris, Special Deputy County Attorney, Missoula, Montana

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶ 1 This is an appeal from a Fourth Judicial District Court judgment revoking a deferred sentence for failure to pay restitution. We affirm.

¶ 2 We restate the issues on appeal as follows:

1. Whether substantial evidence supports the District Court’s finding that defendant did not make a good faith effort to pay his restitution.

2. Whether revocation of a deferred sentence for failure to pay restitution violates constitutional equal protection and due process if the probationer failed to make a good faith effort to pay.

3. Whether restitution is a fine within the purview of the Excessive Fines Clause of Article II, Section 22 of the Montana Constitution.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 In 2008, the State charged David Cordell Johnson (Johnson) with five counts of felony theft, two counts of misdemeanor theft, three felony counts of exploiting an older person, and one misdemeanor count of exploiting an older person. The State alleged that Johnson defrauded elderly clients while selling insurance and annuities. According to the State, Johnson improperly accepted loans from elderly clients and transferred elderly clients’ accounts to different annuities in return for substantial commissions without their full understanding of the penalties.

¶ 4 Johnson pleaded guilty to two counts of felony theft, whereby the State dismissed the remaining charges. On May 17, 2010, the District Court imposed deferred sentences for six years on each count, to run concurrently. The District Court ordered Johnson to pay $87,339.50 in restitution plus interest and supervision fees. This Court affirmed. State v. Johnson , 2011 MT 116, 360 MT 443, 254 P.3d 578.

¶ 5 Over the next six years, Johnson worked sporadically. He worked full-time for fourteen to sixteen months total, spread across three different jobs. He quit at least one job and was fired from two. By the end of the deferral period, Johnson had paid off $3,799 of his $87,339 restitution obligation. On May 12, 2016, the State filed a petition to revoke Johnson’s deferred sentence for failing to make a good faith effort to pay restitution and supervision fees. At that time, Johnson had not made a restitution payment in seven months.

¶ 6 At a hearing on August 25, 2016, Johnson’s probation officers testified regarding Johnson’s lack of effort to find work. Johnson held out for high-paying, managerial jobs instead of accepting steady full-time work, albeit for less pay. Johnson confirmed his preference not to "settle for something" on the stand. According to one probation officer’s testimony, Johnson would tell her "about one position that would be in one state and then a couple weeks later it was a different job entirely, or he had to go to training for one and he would lose that one or quit because he was going to do this other one." She stated she felt like she tried "harder than he [did] to keep him on track." Johnson’s work was "sporadic at best." Another officer testified that Johnson, despite ample opportunity over the six years, had not made a concerted effort to maintain employment. He recommended the sentence be suspended, rather than deferred.

¶ 7 Johnson does not deny his failure to make regular restitution payments. He testified that his criminal record deterred employers from hiring him, but his probation officers stated that most probationers maintained full-time employment despite their criminal records. Furthermore, Johnson had a college degree, which his probation officers testified gave him an advantage many probationers did not have. Johnson testified he completed 587 hours of community service, but did not receive credit because he failed to pay the required $1 per hour fee. He testified his income covered only living expenses. At one point, Johnson was living out of his car and showering at truck stops. He had a $58,000 tax liability, which the IRS stopped pursuing due to his indigence.

¶ 8 During this period Johnson collected unemployment ($4,433 in 2010) and received food stamps, but failed to inform the Department of Corrections of this income. From 2011 to 2015, Johnson received $500 per month following his mother’s death. He also initially received commissions from his former work selling insurance and annuities worth $300 to $500 per month of taxable income. However, Johnson testified that by the end of his deferred sentence they were worth much less. Since 2010, Johnson made roughly fifty payments of an average $71.58. Meanwhile, he consistently paid $70 per month toward his credit card and $100 per month toward his daughter’s student loan.

¶ 9 Based on the testimony and argument presented at the hearing, the District Court concluded that

The State has met its burden in this case of showing that there has not been a good faith effort in meeting the restitution obligations. The Court will therefore find a violation of the probation conditions ... imposed by [the court when it] deferred the imposition of sentence in this case.

The District Court revoked Johnson’s deferred sentence and imposed a new sentence for six years on each count, to run concurrently, again deferred with the same conditions. Johnson was required to make monthly income and expense reports. Johnson appeals this decision, arguing he made a good faith effort to make the payments, but could not afford them.

STANDARD OF REVIEW

¶ 10 This Court exercises plenary review over constitutional questions. State v. Edmundson , 2014 MT 12, ¶ 12, 373 Mont. 338, 317 P.3d 169. This Court reviews a district court’s decision to revoke a suspended sentence for abuse of discretion. Edmundson , ¶ 12. Revocation decisions involve both legal and factual findings. For legal questions, the standard of review is de novo; for factual questions, a district court will be reversed only for clear error. Tefft v. State , 271 Mont. 82, 91-92, 894 P.2d 317, 323 (1995). A defendant’s ability to pay is a factual determination. State v. Reynolds , 2017 MT 317, ¶ 16, 390 Mont. 58, 408 P.3d 503. A finding of good faith in the context of making restitution payments is similarly factual, and reversible only for clear error. A district court’s factual findings are clearly erroneous if they are not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Reynolds , ¶ 16.

DISCUSSION

¶ 11 1. Whether substantial evidence supports the District Court’s finding that defendant did not make a good faith effort to pay his restitution.

¶ 12 Johnson asserts he made a good faith effort to pay restitution, and that the District Court erred in revoking his deferred sentence for failure to pay.

¶ 13 Montana law directs sentencing courts to order offenders "to make full restitution to any victim who has sustained a pecuniary loss, including ... economic loss." Section 46-18-241(1), MCA. The law requires full restitution of deferred sentences, and the duty to pay remains with an offender until paid in full. Sections 46-18-201(5), -241(1), MCA. Revocation of a deferred sentence is appropriate where the State proves by a preponderance of the evidence a violation of the terms and conditions of the deferred sentence. Section 46-18-203(6)(a)(i), MCA. "However, when a failure to pay restitution is the basis for the petition, the offender may excuse the violation by showing sufficient evidence that the failure to pay restitution was not attributable to a failure on the offender’s part to make a good faith effort to obtain sufficient means to make the restitution payments as ordered." Section 46-18-203(6)(b), MCA ; State v. Welling , 2002 MT 308, ¶ 15, 313 Mont. 67, 59 P.3d 1146 (defendant’s "failure to pay restitution was not caused by her lack of a good faith effort"); Bucher v. Hughes , 2010 MT 147, ¶ 7, 357 Mont. 19, 235 P.3d 1281 (defendant’s "parole officer testified that $100 per month represented the most that [defendant] reasonably could pay toward restitution in light of his financial situation").

¶ 14 It is undisputed that over Johnson’s almost six-year probationary period, Johnson violated his probation by contributing only $3,799 toward restitution and nothing toward his supervision fees. Johnson did not make a restitution payment for seven months prior to the filing of the petition.

¶ 15 The District Court found that Johnson did not make a good faith effort to pay restitution based on the substantial evidence presented by the State. Johnson had three probation officers over the period of deferral. While Johnson argued that his criminal record deterred employers from hiring him, his probation officers testified that other probationers maintained full-time employment, despite their criminal records. Instead, Johnson’s lack of effort and interest in working lower paying jobs kept him from steady employment. All three probation officers indicated that Johnson had not made a good faith effort to find consistent work.

¶ 16 Johnson asserts he made little income due to his struggle to find higher-paying work, and that he could not pay restitution because he spent his income on living expenses. However, Johnson’s probation officers pointed to other sources of income (an inheritance, unemployment, food stamps, and commissions from former insurance sales) to explain Johnson’s lack of motivation to maintain...