MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2016 ME 70
Docket:   Ken-15-266
Argued:   March 2, 2016
Decided:  May 10, 2016

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.



                                 STATE OF MAINE

                                          v.

                                 DAVID BRADLEY

HUMPHREY, J.

         [¶1] David Bradley appeals the restitution portion of his sentence arising

from his conviction for submitting hundreds of fraudulent claims to MaineCare.

He contends (1) that the court erred in finding that he was not incapable of paying

the ordered restitution, and (2) that the court’s decision to order $20,000 in

restitution was so arbitrary that it violated his right to due process of law.

Discerning no error or due process violation, we affirm.

                                 I. BACKGROUND

         [¶2] David Bradley was charged with one count of theft by deception

(Class B), 17-A M.R.S. § 354(1)(B)(1) (2015) on June 12, 2013, and pleaded

guilty on April 21, 2015. The State alleged, and the court (Kennebec County,

Mullen, J.) found there was sufficient evidence to support, that Bradley had
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submitted hundreds of fraudulent claims to MaineCare, totaling at least

$40,217.56.

      [¶3]    The following undisputed facts are drawn from the sentencing

memoranda and accompanying exhibits submitted to the sentencing court. Bradley

was a practicing, licensed psychologist who also ran a bed and breakfast in Maine.

In 2008, the bed and breakfast was foreclosed upon, and in 2011, Bradley lost his

license to practice psychology following a series of complaints lodged against him

based on multiple ethical and professional violations. Between September 2010

and June 2011, during periods when he was spending significant time in Florida or

was in jail in Maine for other unrelated criminal convictions, Bradley submitted the

fraudulent claims to MaineCare.

      [¶4] In his sentencing memorandum, Bradley asserted that he had $890 in

monthly income—from Social Security and the Florida food assistance program—

and $885 in monthly expenses for rent, cell phone, medications, food, sundries,

and “gas money paid to others.” The State requested a stand-alone order and a

probation condition that Bradley pay restitution to MaineCare in the amount of

$40,217.56. Bradley requested that the court order restitution in the amount of

$1,563.

      [¶5] At the conclusion of the sentencing hearing, taking into account the

sentencing memoranda and the arguments of counsel, the court stated, “I think it’s
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a fair question to ask . . . what’s the likelihood, or who is going to hire a

64-year-old convicted felon with the felony being for theft?” The court also noted

its concern about ordering a level of restitution that would be unrealistic and thus

“promise . . . justice that we cannot deliver.” However, the court found that

Bradley

       has no overwhelming health problems that barred him, necessarily,
       from obtaining employment, certainly, not in the field of healthcare,
       as far as I could determine in the future or predict. But I think there
       are service industries, jobs that people find with felony convictions—
       convictions in the plural, not just one. And I find that he has a
       reduced capacity, but not a total inability, to make restitution.

The court sentenced Bradley to four years’ imprisonment, with all but nine months

suspended, and three years of probation and ordered him to pay $20,000 in

restitution to MaineCare, also making payment a condition of his probation.1

       [¶6]    On May 8, 2015, Bradley filed a timely notice of direct appeal,

pursuant to 15 M.R.S. § 2115 (2015) and M.R. App. P. 2, and applied to us for

leave to appeal the sentence, pursuant to 15 M.R.S. § 2151 (2015) and

M.R. App. P. 20.          The Sentence Review Panel granted his application on

August 3, 2015, and ordered that the sentence appeal be considered together with

his direct appeal, pursuant to M.R. App. P. 20.


   1
      The court left the time and method of payment to be determined by the Department of Corrections
so that the Department could set a payment schedule in accordance with Bradley’s circumstances in the
future. See 17-A M.R.S. § 1326-A (2015).
4

                                 II. DISCUSSION

      [¶7] Bradley’s argument that the sentencing court erroneously found that he

was not incapable of paying $20,000 in restitution is an argument regarding the

propriety of the sentence that may only be raised through a discretionary sentence

appeal. See State v. Davenport, 2016 ME 69, ¶¶ 8-9, 13, --- A.3d ---. In contrast,

Bradley’s argument that the restitution portion of his sentence violated due process

is a challenge to his sentence based on a purported illegality appearing plainly in

the record, and may be raised on direct appeal. See State v. Ricker, 2001 ME 76,

¶¶ 18-19, 770 A.2d 1021. Because Bradley filed a timely notice of direct appeal

and was also granted leave to appeal his sentence, the distinction has no practical

significance in this case; however, we (A) consider Bradley’s argument about the

propriety of the restitution portion of his sentence in the context of his

discretionary sentence appeal and (B) consider his argument that the restitution

order violated due process in the context of his direct appeal.

A.    Discretionary Appeal—Propriety of the Sentence

      [¶8] Bradley’s primary contention on appeal is that the court’s order of

$20,000 in restitution was improper because he had established his incapacity to

pay this level of restitution as a matter of law. See 17-A M.R.S. § 1325 (2015).

The Legislature has authorized courts to order restitution to compensate victims for

economic loss while helping to rehabilitate the offenders.        See 17-A M.R.S.
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§ 1321 (2015). When calculating restitution, a court must consider, inter alia,

“[t]he present and future financial capacity of the offender to pay restitution.”

17-A M.R.S. § 1325(1)(C). The court is not required to make an express finding

that the defendant is able to pay restitution. See State v. Berube, 1997 ME 165,

¶¶ 18-19, 698 A.2d 509. However, restitution is not authorized when it “creates an

excessive financial hardship on the offender.” 17-A M.R.S. § 1325(2)(D). In

determining whether restitution will create an excessive hardship, a court must

consider, inter alia, “[t]he minimum living expenses of the offender” and “[t]he

offender’s present income and potential future earning capacity.”                   Id.

§ 1325(2)(D)(2), (2)(D)(4).

      [¶9]   The defendant “has the burden of proving the incapacity [to pay

restitution] by a preponderance of the evidence.” Id. § 1325(4). “[U]nless a court

has evidence before it sufficient to support a finding that a restitution order would

create an excessive financial hardship . . . it is authorized to impose restitution, in

whole or in part, as compensation for economic loss.” Berube, 1997 ME 165, ¶ 19,

698 A.2d 509. On appeal, the defendant “has the burden of demonstrating that the

incapacity was proven as a matter of law.” 17-A M.R.S. § 1325(4).

      [¶10] As the party with the burden of proof, Bradley is required to show that

“the record compels a contrary conclusion.” Davenport, 2016 ME 69, ¶ 13, ---

A.3d --- (quotation marks omitted).       Thus, we review the record before the
6

sentencing court to determine if it compels the conclusion that Bradley is incapable

of paying restitution because the restitution poses an excessive financial hardship.

See id.; see also State v. Nelson, 2010 ME 40, ¶ 18, 994 A.2d 808 (“The court

heard evidence that Nelson was forty-two years old, had previously owned and

operated a successful business involving a number of transferable skills, and that

he suffered from no disability. . . . Under these facts, the court did not err as a

matter of law in finding that restitution would not cause an excessive financial

hardship . . . .”); State v. Peck, 2014 ME 74, ¶ 17, 93 A.3d 256 (“The court’s

restitution order . . . is both reasonable and supported by the record.”).

      [¶11] The record before the sentencing court in this case does not compel

the conclusion that paying $20,000 in restitution would impose an excessive

financial hardship on Bradley. The court’s judgment was based on its findings that

Bradley has “no overwhelming health problems” barring him from employment

and that there are several fields of employment open to Bradley even with his

felony conviction.    Bradley did not present evidence regarding any physical

condition that would impair his ability to work at the time of the sentencing or in

the future. Nor did he present any evidence that his job skills from practicing as a

psychologist or running a bed and breakfast would not be transferable to other

fields. Similar to defendants in previous cases, Bradley is essentially able-bodied
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and has a prior history of employment with potentially transferable skills.2 See

Nelson, 2010 ME 40, ¶ 18, 994 A.2d 808; State v. Pease, 2007 ME 155, ¶ 10,

940 A.2d 189.

         [¶12] Bradley posits that he will have trouble gaining employment because

of his felony conviction, but we have never recognized a felony conviction as per

se evidence of a lack of future employability. Indeed, as the State points out, “[i]f

all convicted felons were deemed unemployable, most of them would not be

required to pay restitution—a result not indicated by the statutory provisions for

the imposition of restitution.” For these reasons, we conclude that the sentencing

court did not err in finding that Bradley was not incapable of paying $20,000 in

restitution.

B.       Direct Appeal—Due Process

         [¶13] Bradley also argues that the court’s decision to order $20,000 in

restitution was arbitrary and therefore violated his right to due process. We review


     2
       Bradley’s reliance on State v. Johnson, 667 A.2d 110 (Me. 1995), is misplaced. In Johnson, we
vacated a restitution order where “the record show[ed] that all of Johnson’s income [was] required for . . .
basic necessities” and “[n]either Johnson’s current income nor her realistic earning potential [left] any
room for the payment of restitution.” Id. at 111. Bradley argues that he is like Johnson because he asserts
that almost all of his income goes to his basic expenses, and because the court could not have determined
that he could “realistically” gain future employment. Johnson, however, was decided at a time before the
Legislature placed on defendants the burden to prove an inability, or incapacity, to pay restitution. See
P.L. 1997, ch. 413, § 3 (effective Sept. 19, 1997) (codified at 17-A M.R.S. § 1325(4)); see also State v.
Davenport, 2016 ME 69, ¶¶ 10-11, --- A.3d ---. In addition, in Johnson, we determined from the record
that the sentencing court had impermissibly imposed symbolic restitution by ordering the defendant to
pay an amount that the court expected she would not be able to pay. See Johnson, 667 A.2d at 111. By
contrast, in this case, the sentencing court found that there was no bar to Bradley being able to pay the
restitution it ordered.
8

the constitutionality of a sentence de novo. State v. Bennett, 2015 ME 46, ¶ 14,

114 A.3d 994. The record clearly demonstrates that the court’s decision was not

arbitrary.   The court (1) considered the statutory factors, see 17-A M.R.S.

§ 1325(1), and many of the specific circumstances that Bradley advanced in his

sentencing memorandum; (2) allowed Bradley to apply his bail towards the

restitution in light of his diminished capacity to pay; and (3) provided that the

Department of Corrections would determine the exact time and method of payment

in order to best reflect Bradley’s circumstances now and in the future.

Furthermore, the court halved the amount of restitution sought by the State in light

of Bradley’s diminished earning capacity, a reasonable approach that we recently

approved. See Peck, 2014 ME 74, ¶ 17, 93 A.3d 256 (“In ordering Peck to pay

restitution, the court properly recognized Peck’s financial limitations and more

than halved the State’s requested amount of $36,800 to $18,000.”); see also

17-A M.R.S. § 1325(1) (providing that restitution may be authorized as

compensation for economic loss “in whole or in part”). For these reasons, the

court’s decision was not arbitrary, and we affirm.

      The entry is:

                      Judgment affirmed.
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On the briefs:

        Scott F. Hess, Esq., The Law Office of Scott F. Hess, LLC,
        Augusta, for appellant David Bradley

        Janet T. Mills, Attorney General, and Valerie A. Wright, Asst.
        Atty. Gen., Office of the Attorney General, Augusta, for
        appellee State of Maine


At oral argument:

        Scott F. Hess, Esq., for appellant David Bradley

        Valerie A. Wright, Asst. Atty. Gen., for appellee State of Maine



Kennebec County Superior Court docket number CR-2013-521
FOR CLERK REFERENCE ONLY
