[Cite as State v. Burgette, 2014-Ohio-3483.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ATHENS COUNTY

STATE OF OHIO,                                    :    Case No. 13CA50

        Plaintiff-Appellee,                       :

v.                                                :    DECISION AND
                                                       JUDGMENT ENTRY
DUSTIN BURGETTE,                                  :

        Defendant-Appellant.                      :    RELEASED: 8/8/2014

                                               APPEARANCES:

Timothy Young, Ohio Public Defender, and Katherine R. Ross-Kinzie, Ohio Assistant
Public Defender, Columbus, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Matthew M. Ward,
Athens County Assistant Prosecuting Attorney, Athens, Ohio, for appellee.
HARSHA, J.
        {¶1}     After convicting Dustin Burgette of two thefts, the court sentenced him to

prison and ordered him to pay restitution. The court ultimately granted him judicial

release, placed him on community control, and ordered him to complete restitution

within four years. When he failed to make restitution the court revoked his community

control sanction and reimposed the balance of his prison sentence. On appeal Burgette

argues that the trial court violated his constitutional rights to equal protection and due

process, when it terminated his judicial release and reinstated his previously suspended

sentence for failure to pay full restitution.

        {¶2}     In revocation proceedings for failure to make restitution, a sentencing

court must inquire into the reasons for the failure to pay. Before a court can revoke

community control and impose imprisonment, it must find the defendant willfully refused

to pay or to make bona fide efforts to acquire the resources to pay. And it must also
Athens App. No. 13CA50                                                                      2


determine that alternatives to prison do not adequately meet the state’s interest in

ordering restitution. Here Burgette claimed that he paid what he was able to pay

towards the restitution order. However, the trial court did not fully inquire into his

reasons for failing to pay. And the evidence before the court was insufficient to

establish his failure to pay was willful or intentional. Because the court’s inquiry fell

short of constitutional requirements, imprisonment was improper on the evidence before

the court.

                                          I. FACTS

       {¶3}     In separate cases, the state charged Burgette with grand theft, and theft

and burglary. Burgette pleaded guilty to the charges of grand theft and theft in return for

the state’s dismissal of the burglary charge. The state also agreed to recommend that

he be placed on community control for a period of five years with conditions that he

complete a SEPTA program, complete his GED, and pay restitution to the victims of the

crimes. But because Burgette failed to complete the SEPTA evaluation, the trial court

sentenced him to an aggregate prison term of three and one-half years. The trial court

also ordered Burgette to pay $12,428.16 in restitution to his two victims. At the plea

hearing Burgette’s counsel notified the court that Burgette had only a limited ability to

repay the restitution and was receiving Supplemental Security Income (“SSI”) because

of his history of mental illness. A court ordered competency examination had previously

revealed that Burgette has “a history of mental illness” and “border line intellectual

functioning.”

       {¶4}     After over six months of imprisonment had passed, Burgette filed a motion

requesting judicial release. Following a hearing, the trial court granted the motion,
Athens App. No. 13CA50                                                                    3


suspended Burgette’s sentence, and placed him on five years of community control with

conditions, including that he make complete restitution to the victims within the first four

years of community control. At the hearing the trial court notified him of the restitution

order:

         Now I have to tell you, Mr. Burgette, what that means is this. The three
         year sentence is being what we call suspended or interrupted in order to
         allow you to do certain things, one of which is to make restitution in this
         case.

         {¶5}   After the four-year period to make complete restitution had elapsed and 24

days before his community control expired, the state filed a notice of violation alleging

that Burgette had failed to pay the restitution in full within four years. At his bond

hearing Burgette advised the court that he had been paying $10 a month on the

restitution because that was all that he could pay:

         I’m going to start paying more on it in this coming up month. I’ve been
         paying on it each month but I ain’t had a chance to really pay. I’m going to
         sta[r]t paying a hundred dollars on it a month. I’ve been paying ten on it
         each month but that’s all I could pay at the time. But I’m getting stuff
         together right now.

         {¶6}   In the first stage revocation hearing Burgette admitted he violated the

community control condition by not making complete restitution to the victims of his

crimes within the specified four-year period. However, he informed the trial court of his

inability to pay more on the restitution order:

         I’m paying on [the restitution] every month. I get a fixed income. I don’t
         get much so I can only pay so much a month on it.

         {¶7}   In the second stage revocation hearing Burgette’s counsel reiterated

Burgette’s difficulty in complying with the restitution condition:
Athens App. No. 13CA50                                                                                    4


        [Burgette is] currently on SSI. He has been making payments through a
        payee. So not only is he on a fixed limited income of SSI but he doesn’t
        have actual access to his money, his payee does.
        {¶8}    Nonetheless, the trial court terminated Burgette’s judicial release, imposed

the balance of his previously suspended prison sentence, and ordered him to pay

restitution to the victims. At the second stage hearing the trial court explained that it

would not have terminated his judicial release and reimposed his previously suspended

prison sentence if Burgette had acted in “reasonably good faith” in making restitution:

        Well, Ms. Baughman is accurate that we do not have debtor prisons today.
        And she’s also accurate that [one of the victims] did have the remedy of
        filing a civil suit, which may or may not have been productive for him if he
        had followed that. But we’re really not talking about total restitution here.
        We’re talking about good faith. And that’s what people show by reporting
        when they’re on probation. That’s what they show when they do the
        things that they’re supposed to do like community service. And with
        respect to these rather large obligations that’s, like [the victim] said,
        showing good faith. The Court would not have held Mr. Burgette to the
        standard of having to repay everything. It would have held him to a
        standard of trying to show that he had done what he could do. And if he
        thought a year ago or eighteen months ago that he was not going to be
        able to even come close to this that’s something he should have told his
        probation officer. But he did not do so. And even in an SSI situation ten
        dollars a month – and I know I told Mr. Burgette this – you are going to
        have to do better than that. I told him that when he came back from
        prison. I wouldn’t have sent him to prison if he’d shown good faith. He
        would have gone to the SEPTA Center. He also knows that. But he didn’t
        show good faith earlier. And so [the victim] is likely to just be out. He’s
        not going back to get his guns back, he’s not going to get the money for
        them either, or his restitution. And Mr. Burgette has not produced
        anything to suggest to me that he was acting in reasonably good faith. If
        the probation officer thought that he was he or she, whoever his probation
        officer is, could have been subpoenaed here to testify to that effect, if
        that’s what they would have said. I don’t know that that’s what they would
        have said. So based on that analysis the Court is going to terminate the
        judicial release in this case and require the Defendant to serve the
        balance of his sentence.1


1
  At the second stage revocation hearing, the state represented that in addition to violating the restitution
condition of his community control sanction, Burgette also failed to complete his community service and
did not return guns that he had stolen from one of the victims. (OP86, p. 2-3) The state never gave
Athens App. No. 13CA50                                                                                   5



                                 II. ASSIGNMENTS OF ERROR

        {¶9}    Appellant assigns the following errors for our review:

        1. The trial court erred when it terminated Mr. Burgette’s judicial release
        and reinstated his previously suspended sentence for failure to pay full
        restitution in violation of Mr. Burgette’s rights to equal protection.
        Fourteenth Amendment to the United States Constitution; Section 2,
        Article I, Ohio Constitution. (December 17, 2013 Transcript, p. 7)

        2. The trial court erred when it terminated Mr. Burgette’s judicial release
        and reinstated his previously suspended sentence for failure to make
        undefined “good faith” payments toward his restitution order in violation of
        Mr. Burgette’s rights to due process. Fifth and Fourteenth Amendments to
        the United States Constitution; Section 16, Article I, Ohio Constitution.
        (December 17, 2013 Transcript, p. 7)

                                        III. STANDARD OF REVIEW

        {¶10} In general once a court finds that a defendant violated the terms of his

community control sanction, the court’s decision to revoke community control may be

reversed on appeal only if the court abused its discretion. State v. McClintock, 4th Dist.

Meigs No. 13CA4, 2013-Ohio-5598, ¶ 4. But when a claim is made that the revocation

of community control and imposing a prison term violates constitutional rights, the

analysis becomes a question of law that we review de novo. See generally State v.

Castellini, 1st Dist. Hamilton Nos. C-110445 and C-110446, 2012-Ohio-1603, ¶ 12;

Buckmaster v. Buckmaster, 4th Dist. Highland No. 13CA13, 2014-Ohio-793, ¶ 6

(“constitutional questions * * * are questions of law, which we review de novo, without

deference to the decision of the trial court”). Because Burgette’s assignments of error

raise constitutional claims, we review them de novo.

                                      IV. LAW AND ANALYSIS


Burgette written prehearing notice of these alleged violations, Burgette did not admit them, and the trial
court did not so find.
Athens App. No. 13CA50                                                                               6


          Revocation of Community Control Based on Failure to Pay Restitution

                                        A. Equal Protection

        {¶11} In his first assignment of error, Burgette asserts that the trial court erred

when it terminated his judicial release and reinstated the balance of his previously

suspended sentence for failure to pay full restitution in violation of his constitutional right

to equal protection.

        {¶12} A trial court can revoke a defendant’s community control for failure to

make restitution ordered as a condition of community control. State v. Breckenridge,

10th Dist. Franklin No. 10AP-652, 2011-Ohio-1493, ¶ 12. Nevertheless, a court cannot

revoke probation for failure to pay restitution where there is no evidence that the

defendant is able to pay. State v. Umphries, 4th Dist. Pickaway No. 97CA45, 1998 WL

377768, *6 (Jul. 9, 1998); Breckenridge at ¶ 12. In these instances, there must be

evidence that the failure to pay or obtain employment was willful or intentional. Id.; see

also State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, ¶ 20 (“It is a

violation of the Equal Protection Clause of the United States Constitution to revoke a

defendant’s probation simply because she is too poor to pay restitution where the

record contains no evidence that the failure to pay, was willful or intentional or that

failure to obtain employment, in order to pay was willful or intentional”).

        {¶13} These principles emanated from Bearden v. Georgia, 461 U.S. 660, 668-

669, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983),2 in which the United States Supreme Court

held:



2
  The United States Supreme Court noted that in this analysis, “[d]ue process and equal protection
principals converge,” but a due process analysis, focusing on fundamental fairness, might be more
appropriate. Id. at 665.
Athens App. No. 13CA50                                                                    7


       [I]n revocation proceedings for failure to pay a fine or restitution, a
       sentencing court must inquire into the reasons for the failure to pay. If the
       probationer willfully refused to pay or failed to make sufficient bona fide
       efforts legally to acquire the resources to pay, the court may revoke
       probation and sentence the defendant to imprisonment within the
       authorized range of its sentencing authority. If the probationer could not
       pay despite sufficient bona fide efforts to acquire the resources to do so,
       the court must consider alternate measures of punishment other than
       imprisonment. Only if alternate measures are not adequate to meet the
       State's interests in punishment and deterrence may the court imprison a
       probationer who has made sufficient bona fide efforts to pay. To do
       otherwise would deprive the probationer of his conditional freedom simply
       because, through no fault of his own, he cannot pay the fine. Such a
       deprivation would be contrary to the fundamental fairness required by the
       Fourteenth Amendment.

(Footnote omitted.)

       {¶14} In determining whether a failure to pay restitution is willful or intentional, “a

probationer’s failure to make sufficient bona fide efforts to seek employment or borrow

money in order to pay the * * * restitution may reflect an insufficient concern for paying

the debt he owed to society for his crime” and the state is “justified in revoking probation

and using imprisonment as an appropriate penalty for the offense.” Id. at 668. “But if

the probationer has made all reasonable efforts to pay the * * * restitution, and yet

cannot do so through no fault of his own, it is fundamentally unfair to revoke probation

automatically without considering whether adequate alternative methods of punishing

the defendant are available.” Id. at 668-669.

       {¶15} In this case, Burgette and his counsel repeatedly informed the trial court

that he had paid $10 a month towards the restitution condition of his community control

because that was all he was able to pay, that he received a fixed, limited income

consisting of SSI benefits that he did not have direct access to, and that he had

increased his payments towards the restitution order when he was able to do so. The
Athens App. No. 13CA50                                                                     8


purpose of SSI “ ‘is to assure a minimum level of income for people who are * * *

disabled and who do not have sufficient income and resources to maintain a standard of

living at the established Federal minimum income level.’ ” Paton v. Paton, 91 Ohio

St.3d 94, 96, 742 N.E.2d 619 (2001), quoting 20 C.F.R. 416.110.

       {¶16} The court was also aware that Burgette did not have a high school

diploma as it ordered him to obtain a GED. And the court’s own competency evaluation

indicated Burgette had a history of mental illness and borderline intellectual functioning.

       {¶17} The trial court made it clear that it was not punishing Burgette for his

failure to satisfy the order of restitution. Rather, the court advised him it was simply

looking for some evidence of good faith, which it found lacking. It reached that

conclusion based largely on the passage of time and the de minimis amounts of

Burgette’s payments. However, we do not believe that limited analysis satisfies the

requirement in Bearden for an inquiry into the reasons for the failure to pay and

alternative sanctions.

       {¶18} Courts must inquire into the reasons for the failure to pay. If the court

finds the failure to pay was willful, i.e., the defendant had the resources to pay but

chose not to do so, the court may proceed to impose a prison sentence. However, if the

failure to pay was not willful, i.e., through no fault of the defendant, the court must then

determine whether the defendant had made a good faith effort to acquire the means to

pay. In the event the defendant’s effort evidences a lack of good faith, the court may at

this stage impose the appropriate sanction, including prison.

       {¶19} But if the efforts indicate the defendant has tried in good faith but had

been unsuccessful, the court can only impose confinement for failure to make restitution
Athens App. No. 13CA50                                                                         9


if alternate sanctions are not sufficient to satisfy the state’s interest in ordering

restitution. Because the state’s interest in ordering restitution is to make the victim

whole, the alternatives available to the court are quite limited. In other words, we are

not aware of anyone having discovered the means to get blood from the proverbial

turnip. The only obvious alternative that comes to mind immediately is some type of

restructuring of restitution. And even this option is limited to the period of community

control, i.e., five years.

          {¶20} Here, the trial court did not inquire into Burgette’s reasons for failure to

pay. There is no evidence concerning Burgette’s level of income or his financial

obligations during the pertinent period. There also appears to be no evidence of his

employment history, efforts, and capacity to seek employment or a loan while disabled

and receiving SSI. The trial court could subpoena pertinent records or it could seek

information by questioning Burgette and his probation officer, and reviewing any PSI

report.

          {¶21} And although the trial court appears to have determined that Burgette

willfully or intentionally failed to pay more of the ordered restitution, it did not have

sufficient evidence before it to do so. There is nothing in the record to support the trial

court’s statement that when Burgette was returned from prison, the court advised him

that he had to pay more than $10 a month from his SSI benefits in order to avoid

revocation of his judicial release for failure to pay restitution.

          {¶22} Under these circumstances, the trial court’s termination of Burgette’s

judicial release for failure to pay and reimposition of the prison sentence constituted

reversible error. A “ ‘sentencing court cannot properly revoke a defendant’s probation
Athens App. No. 13CA50                                                                          10


for failure to make restitution absent evidence and findings that [the defendant] was

somehow responsible for the failure or that alternative methods of punishment were

inadequate to meet the [s]tate’s interest in punishment and deterrence.’ ” State v.

Dockery, 187 Ohio App.3d 798, 2010-Ohio-2365, 933 N.E.2d 1155, ¶ 16 (1st Dist.),

quoting Bearden, 461 U.S. at 660, 103 S.Ct. 2064, 76 L.Ed.2d 221; Wolfson, 2004-

Ohio-2750, at ¶ 20 (“It is a violation of the Equal Protection Clause of the United States

Constitution to revoke a defendant’s probation simply because she is too poor to pay

restitution where the record contains no evidence that the failure to pay was willful or

intentional or that failure to obtain employment, in order to pay, was willful or

intentional”); State v. Harris, 8th Dist. Cuyahoga Nos. 96460, 96461, and 96661, 2012-

Ohio-802, ¶ 17 (“To imprison someone solely because he is unable to pay a fine * * *

violates the Equal Protection Clause of the Fourteenth Amendment, because people

without means to pay fines would receive more severe punishment than those who are

capable of paying”).

       {¶23} The state does not point to any specific evidence in the record supporting

the trial court’s finding that Burgette’s failure to pay the restitution within the four-year

period was willful or intentional. The state did not submit evidence below concerning

Burgette’s ability to pay the restitution.

       {¶24} Instead, the state relies on a solitary case, State v. Pickelsimer, 2d Dist.

Greene No. 06-CA-118, 2007-Ohio-5758, in which the court of appeals upheld a trial

court’s revocation of community control and imposition of a prison sentence. That case,

however, is manifestly distinguishable because (1) the defendant violated another

community control condition—failure to follow through with chemical dependency
Athens App. No. 13CA50                                                                    11


treatment—in addition to failing to pay restitution, and (2) the defendant used some

money that she could have used to pay restitution to make payments that she did not

have a legal obligation to pay.

       {¶25} Because the trial court did not make the analysis and findings required by

Bearden and its progeny, it erred in terminating Burgette’s judicial release and

reimposing the balance of his suspended sentence. A reversal and remand is

appropriate for the trial court to hold an evidentiary hearing in accordance with Bearden.

See Dockery, 187 Ohio App.3d 798, 2010-Ohio-2365, 933 N.E.2d 1155, at ¶ 17; State

v. Rudin, 1st Dist. Hamilton No. C-110747, 2012-Ohio-2643, ¶ 11-13 (reversal and

remand because trial court did not make necessary inquiry under Bearden for

community-control revocation based on failure to pay restitution); State v. Williams, 2d

Dist. Greene No. 2007-CA-28, 2008-Ohio-2385 , ¶ 36-42 (reversal and remand of

community-control revocation for failure to pay restitution because trial court did not

inquire into defendant’s ability to pay restitution). We sustain Burgette’s first assignment

of error.

                                     B. Due Process

       {¶26} In his second assignment of error, Burgette contends that the trial court

erred when it terminated his judicial release and reinstated his previously suspended

sentence for failure to make undefined “good-faith” payments towards his restitution, in

violation of his constitutional right to due process. Because of our disposition of

Burgette’s first assignment of error, this assignment is moot and we do not address it.

App.R. 12(A)(1)(c).

                                    V. CONCLUSION
Athens App. No. 13CA50                                                               12


       {¶27} Having sustained Burgette’s first assignment of error, we reverse the

judgment of the trial court and remand the cause for further proceedings consistent with

this opinion.

                                                              JUDGMENT REVERSED
                                                             AND CAUSE REMANDED.
Athens App. No. 13CA50                                                                      13


                                    JUDGMENT ENTRY


    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
