State v. R.B.F.

304 So.3d 231

STATE of Alabama

v.R.B.F.

CR-18-0902

Court of Criminal Appeals of Alabama.

March 13, 2020

Steve Marshall, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellant.

Nicholas A. Jones, Montgomery, for appellee.

KELLUM, Judge.

A delinquency petition was filed in the Juvenile Court of Montgomery County charging R.B.F.¹ with theft of property in the first degree, a violation of § 13A-8-3, Ala. Code 1975, for the theft of a motor vehicle. After R.B.F. entered an admission to the petition, the juvenile court entered an order on February 28, 2019, in which it adjudicated R.B.F. delinquent. The juvenile court placed R.B.F. on 6 months' probation and ordered her to pay $28 to the crime victims' compensation fund, court costs, and attorneys fees; the court deferred ruling on restitution, allowing the State 45 days in which to seek restitution. On April 11, 2019, the State filed a motion for restitution, requesting that the juvenile court order R.B.F. to pay restitution in the amount of $4,061.85.

On May 30, 2019, the juvenile court conducted a restitution hearing. At the conclusion of the restitution hearing, the following exchange occurred:

"THE COURT: But I think I –- [prosecutor], in spite of some of the issues raised by [defense counsel] on value and standing and all of that, I would have to also be able to determine the juvenile's and her mother's abilities. And that's not even been touched upon.

"I can't order restitution without that important and essential element being established. That hasn't been established.

"[Prosecutor]: Judge, I don't –- That's not my burden to establish.

"THE COURT: It's not mine.

"[Prosecutor]: That's their burden. I don't know their financial –- Only they know that. I don't.

"[Defense counsel]: I would disagree. That would be the burden of the State.

"THE COURT: That's all you have? I'll take it under advisement if that's all you have."

(R. 78-79.)

On May 31, 2019, the juvenile court entered an order in which it denied the State's motion for restitution, finding that "[t]he State failed to show the ability of the Juvenile or her Mother to pay any amount of restitution claimed." (C. 45.) On June 5, 2019, the State filed a motion to reconsider in which it argued, among other things, that it did not have the burden to prove the ability of R.B.F. to pay restitution but, rather, that the burden of proving her inability to pay was on R.B.F. Specifically, the State argued that "the juvenile's ability to reasonably meet the obligation of the amount of restitution claimed by the State and the juvenile's financial resources and obligations is testimony that can only be presented by the juvenile by and through her attorney." (C. 47.) The juvenile court denied the motion to reconsider, and this appeal followed.

On appeal, the State contends that the juvenile court abused its discretion by denying the State's motion for restitution "where no restitution was ordered at all" and by erroneously placing the burden of proof on the State to demonstrate the ability of R.B.F. to pay restitution. (State's brief, p. 5.)

" ‘It is well settled that ‘[t]he particular amount of restitution is a matter which must of necessity be left almost totally to the discretion of the trial judge.’ Ex parte Stutts, 897 So. 2d 431, 433 (Ala. 2004) (internal quotation marks omitted.) Moreover, the exercise of ‘[t]hat discretion should not be overturned except in cases of clear and fragrant abuse.’ Id."

D.A.H. v. State, 296 So. 3d 881, 883 (Ala. Crim. App. 2019). When addressing questions of law, however, appellate courts apply a de novo standard of review. Ex parte Heard, 999 So. 2d 978, 980 (Ala. 2003) ; Stewart v. State, 990 So. 2d 441 (Ala. Crim. App. 2008).

A juvenile court's determination of restitution is procedurally governed by Rule 26.11(a), Ala. R. Crim. P. See D.J.W. v. State, 705 So. 2d 521 (Ala. Crim. App. 1996) (recognizing that Rule 26.11(a) and not § 15-18-68, Ala. Code 1975, is applicable to the determination of restitution in juvenile cases). Rule 26.11(a) states:

"Restitution should be ordered in all cases where a victim has been injured or damaged. The financial resources and obligations of the defendant and the burden that payment of restitution will impose should be considered in determining how much restitution is to be paid or collected, i.e., whether to be paid by installments and what length of time should be given for payment."

As this Court has explained:

" ‘The amount [of restitution ordered in juvenile cases] must be based not only on the amount that compensates the victim, but also on the juvenile's ability to reasonably meet the obligation, because the goal of restitution is primarily rehabilitation. It is an abuse of discretion for the juvenile court to fail to take into account the juvenile's financial resources and obligations, the burden that payment will impose, the juvenile's age, background, and all other relevant factors, as well as the rehabilitative effect of the restitution order. D.J.W. v. State, [705 So. 2d 521 (Ala. Crim. App. 1996) ]; § 12-15-1.1, Ala. Code 1975; Rule 26.11(a), Ala. R. Crim. P.’ "

M.L.R. v. State, 129 So. 3d 307, 311 (Ala. Crim. App. 2012) (quoting T.B. v. State, 819 So. 2d 108, 111 (Ala. Crim. App. 2001) ).

Neither Rule 26.11(a) nor the Committee Comments following the rule reference or discuss which party bears the burden of proving the financial resources and obligations of the juvenile defendant and the burden that payment of restitution would impose on the juvenile defendant. Indeed, we can find no Alabama case that addresses this issue. The law is clear, however, that a juvenile court must consider a juvenile defendant's financial resources and obligations when imposing restitution; failure to do so amounts to an abuse of the court's discretion. See M.L.R., supra.

Other courts have addressed the issue of which party has the burden of proving a defendant's ability to pay restitution. In State v. Gill, 681 N.W.2d 832 (N.D. 2004), the defendant pleaded guilty to theft of property and was ordered to pay $4,120 in restitution "with monthly payments to be determined by the probation officer based on the Defendant's ability to pay." 681 N.W.2d at 833. On appeal, the North Dakota Supreme Court addressed whether the district court had erred in failing to make a finding that the defendant had the ability to pay when it ordered the defendant to pay restitution. Finding no error, that court held:

"Under N.D.[Cent. Code] § 12.1–32–08(1), a court ‘shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay.’ Other jurisdictions, either by statute or by judicial decision, place the burden upon the defendant to raise and prove an inability to pay restitution. See, e.g., United States v. Castner, 50 F.3d 1267, 1277 n. 9 (4th Cir. 1995) ; United States v. Morrison, 938 F.2d 168, 172 (10th Cir. 1991) ; Benton [v. State], 711 A.2d [792] at 800 [(Del. 1998)] ; Dickens v. State, 556 So. 2d 782, 785 (Fla. App. 1990) ; State v. Goeller, 276 Kan. 578, 77 P.3d 1272, 1276 (2003) ; State v. Hval, 174 Or. App. 164, 25 P.3d 958, 968 (2001) ; State v. Boffer, 158 Wis.2d 655, 462 N.W.2d 906, 910 (1990). Courts have further held that the defendant bears the burden of proving inability to pay in revocation proceedings based on failure to pay the ordered restitution. See, e.g., People v. McPherson, 897 P.2d 923, 927 (Colo. App. 1995) ; State v. Jones, 78 N.C. App. 507, 337 S.E.2d 195, 197 (1985) ; Stanfield v. State, 718 S.W.2d 734, 737 (Tex. Crim. App. 1986) ; Keselica v. Commonwealth, 34 Va. App. 31, 537 S.E.2d 611, 613 (2000). Gill has not cited any authority to the contrary. We conclude Gill had the burden to raise and prove an inability to pay the restitution ordered."

681 N.W.2d at 836.

In State v. Holt, 305 Kan. 839, 842, 390 P.3d 1, 3 (2017), the Kansas Supreme Court recognized that the "defendant bears the burden ‘to come forward with evidence of "compelling circumstances" that render the restitution plan unworkable.’ [ State v. Alcala,] 301 Kan. [832, 840], 348 P.3d 570[, 576 (2015)]."

In Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 111 N.E.3d 1095 (2018), the Appeals Court of Massachusetts stated:

"When a judge is considering an order of restitution as a component of a criminal sentence, and the defendant asserts an inability to pay, the defendant bears the burden of establishing her lack of means by a preponderance of the evidence:

" ‘Where a defendant claims that he or she is unable to pay the full amount of the victim's economic loss, the defendant bears the burden of proving an inability to pay. See Commonwealth v. Porter, 462 Mass. 724, 732-33, (2012) (defendant bears burden of persuasion regarding indigency, in part because "[a] criminal defendant is the party in possession of all material facts regarding her own wealth and is asserting a negative"). Cf. United States v. Fuentes, 107 F.3d 1515, 1532 (11th Cir. 1997) (regarding restitution, "the defendant must establish her financial resources and needs by a preponderance of the evidence").’

"[ Commonwealth v. ]Henry, 55 N.E.3d 943[, 949 (2016) ]. We have indicated that the probationer also bears the burden of proving inability to pay as a defense in probation violation proceedings. See [ Commonwealth v.]Pereira, 93 Mass. App. Ct. [146, 152 n.7,] 99 N.E.3d 835[, 841 n.7 (2018)]."

94 Mass. App. Ct. at 48-49, 111 N.E.3d at 1100.

We find the reasoning in Commonwealth v. Bruno-O'Leary persuasive. The burden of showing an ability to pay is best left to a criminal defendant who is " ‘ "in possession of all material facts regarding her own wealth and is asserting a negative." ’ " 94 Mass. App. Ct. at 48, 111 N.E.3d at 1100. Therefore, we conclude, as did the North Dakota Supreme Court in Gill, supra, that R.B.F., as the juvenile defendant, had the burden to raise and prove her inability to pay restitution.

R.B.F....