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2009-UP-157 - State v. Faust

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

John Robert Faust, Appellant.


Appeal From York County
 Larry R. Patterson, Circuit Court Judge


Unpublished Opinion No.  2009-UP-157
Heard March 3, 2009 – Filed March 30, 2009


VACATED AND REMANDED


Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

John Benjamin Aplin, of Columbia, for Respondent.

PER CURIAM:  John Robert Faust (Faust) appeals the revocation of his probation for failure to make restitution payments, arguing the circuit court judge failed to make a determination on the record that Faust's failure to pay was willful.  We vacate and remand.   

FACTS/PROCEDURAL HISTORY

Faust pled guilty to third-degree burglary in August 2003.[1]  The circuit court judge sentenced him under the Youthful Offender Act to a sentence not to exceed five years, suspended with five years probation.  Additionally, the circuit court judge ordered Faust to pay restitution in the amount of $7,000, attend substance abuse counseling, comply with random alcohol and drug testing, obtain a GED, and avoid contact with the victim.  Faust did not appeal his guilty plea or sentence. 

In July 2005, a probation arrest warrant was issued for Faust alleging he failed to follow the advice and instructions of his probation agent, failed to maintain monetary obligations, and was in arrears in restitution payments.  The warrant stated, "Such actions constitute willful violations of . . . the original probationary agreement."  A South Carolina Department of Probation, Parole and Pardon Services Violation Report (the Report) indicated the probation agent recommended revocation of probation because Faust did not comply with his financial obligations.  The Report further stated Faust's case had previously been transferred to Pennsylvania but had been closed after Faust changed his residence and his family would not disclose his current location.  The Report indicated Faust "absconded supervision" and was only located in the community because of his involvement in a traffic stop. 

At the probation revocation hearing, Faust's counsel stated he was prepared "to address . . . the arrearage but as to [Faust's] . . . alleged reported failures and absconding to Pennsylvania [he had] no defense because [he did not] realize that was going to be an issue . . . ."  Consequently, the circuit court judge indicated he would only be ruling on Faust's failure to pay restitution.  As to that issue, the circuit court judge found it was Faust's "fault" he did not pay the restitution and, thus, revoked Faust's probation in full.  This appeal followed.      

STANDARD OF REVIEW

The decision to revoke probation is addressed to the sound discretion of the circuit court judge.  State v. Spare, 374 S.C. 264, 268, 647 S.E.2d 706, 708 (Ct. App. 2007).  This Court, however, will review such a decision for errors of law or for arbitrary and capricious decisions.  Id.

LAW/ANALYSIS

Faust argues the circuit court judge erred in revoking probation solely for failure to pay restitution without first determining on the record that the failure to pay was willful.  Before adjudicating this claim, we must first address whether this issue is preserved for our review.  

For an issue to be preserved for appellate review, it must have been raised to and ruled upon by the circuit court.  State v. Rogers, 361 S.C. 178, 183, 603 S.E.2d 910, 912 (Ct. App. 2004).  This rule is applicable to the issue of whether the failure to pay was willful, and therefore, the failure to raise the issue of willfulness at a probation revocation hearing waives the right to appeal that issue to this Court.  State v. Hamilton, 333 S.C. 642, 648, 511 S.E.2d 94, 96-97 (Ct. App. 1999).    

At the probation revocation hearing, Faust's counsel acknowledged Faust owed a substantial amount of money on his restitution order but reminded the circuit court judge Faust had already paid approximately $2,600 towards that court-ordered obligation.  Faust's counsel also argued Faust "had a job in Pennsylvania with his uncle doing demolition work and was picked up [by the police] the day before he was
suppose[] to start that job . . . ."  Faust's counsel further argued Faust was "more than willing to continue to try to pay" should the judge allow him to continue with his probation and work in Pennsylvania. 

In response, the circuit court judge stated, "[It is Faust's] fault that he [did not] pay the restitution and [that is] the reason he got probation.  So why has he not paid the restitution?"  Faust's counsel replied there was "perhaps a communication mix up" because Faust believed he had paid what was owed and even had receipts.  Faust, however, could not produce these receipts because they were in Pennsylvania.  The circuit court judge then stated, "I am revoking [probation] in full for failure to pay the restitution. . . . I am tired of those excuses."     

Although Faust never expressly raised the issue of willfulness, we find the essence of his defense at the revocation hearing was that his failure to continue payments toward his restitution obligation was not willful because of a possible miscommunication.  Furthermore, we find the circuit court judge implicitly ruled upon this argument when he found Faust's failure to pay was Faust's "fault" and Faust was just giving "excuses."  Thus, we find the issue is properly preserved for our review.  See id. at 648, 511 S.E.2d at 97 (finding the issue of willfulness at a revocation hearing was raised to and ruled upon by the circuit court because the essence of the defendant's argument was "that the violation was not willful because [the probationer] believed his probationary period had terminated" and the judge ruled "that the violation was 'intentional'"); see also Pryor v. Nw. Apartments, Ltd., 321 S.C. 524, 528 n.2, 469 S.E.2d 630, 633 n.2 (Ct. App. 1996) (finding an issue preserved when the circuit court implicitly ruled on and rejected the respondent's argument). 

Finding appellate review of Faust's claim appropriate, we now address the merits of the issue.  When deciding whether to revoke probation, the circuit court judge must determine whether sufficient evidence has been presented by the State to establish that the probationer violated the conditions of probation.  Spare, 374 S.C. at 268, 647 S.E.2d at 708.  While probation is a matter of grace and revocation is the means by which to enforce its conditions, "the authority of the revoking court should always be predicated upon an evidentiary showing of fact tending to establish a violation of the conditions."  Id.

In South Carolina, a probationer's probation "may not be revoked solely for failure to make required payments of fines or restitution without the circuit [court] judge first determining on the record that the probationer has failed to make a bona fide effort to pay."  Id. at 268-69, 647 S.E.2d at 708 (second emphasis added).  The circuit court judge must make a finding that the probationer willfully failed to pay the restitution in addition to the findings of sufficient factual evidence of the violation.  Id. at 269, 647 S.E.2d at 708; see Barlet v. State, 288 S.C. 481, 483, 343 S.E.2d 620, 622 (1986) ("The judge must determine on the record that the probationer failed to make a bona fide effort to pay [fines or to make restitution].").  "In the absence of such a determination, a defendant's due process rights are contravened by the deprivation of his constitutional freedom."  Hamilton, 333 S.C. at 649, 511 S.E.2d at 97.   

This Court has held a "[w]illful failure to pay means a voluntary, conscious and intentional failure" on the part of the probationer.  Spare, 374 S.C. at 269, 647 S.E.2d at 708-09.  "A proper analysis should include an inquiry into the reasons surrounding the probationer's failure to pay, followed by a determination of whether the probationer made a willful choice not to pay."  Id. at 269-70, 647 S.E.2d at 709.   

As to the present case, while we find the circuit court judge essentially addressed the willfulness of Faust's failure to pay the restitution by finding that failure was Faust's own "fault," the circuit court judge erred by failing to engage in an analysis on the record of the reasons surrounding Faust's failure to pay and by failing to make explicit findings on the record to support a conclusion that Faust's failure to pay was willful.  The record does not demonstrate the circuit court judge engaged in a meaningful discussion regarding Faust's ability to pay, his reasons for failing to pay, and whether his failure to pay was willful, as has been required by this Court.  See id. at 270, 647 S.E.2d at 709 ("[W]e believe the judge failed to make the requisite inquiry into [the probationer's] ability to pay, his reasons for failing to pay, and whether his failure to pay was willful.".  While we understand the circuit court judge's frustration with Faust's failure to continue making his restitution payments, we cannot hold the evidence provided in the record supports the circuit court judge's finding of willfulness.  

The failure to make a finding on the record that Faust's failure to pay the restitution was willful deprived Faust of his due process rights and constitutes a reversible error by the circuit court judge.  Accordingly, the circuit court judge committed reversible error in revoking Faust's probation, and we, therefore, vacate the revocation of Faust's probation and remand this case for a new probation revocation hearing.    

CONCLUSION

Based on the foregoing, the circuit court judge's order is

VACATED AND REMANDED.

HUFF, WILLIAMS, and KONDUROS, JJ., concur.   


[1] Faust was nineteen years old at the time he entered his guilty plea.