Opinion of the Court by Chief Justice MINTON.
We granted discretionary review of these two flagrant nonsupport cases to address due process requirements when a trial court considers a motion to revoke probation
We also reconfirm the principle of due process that the trial court must make clear findings on the record specifying the evidence relied upon and the reasons for revoking probation. This requirement specifically includes findings about whether the defendant made sufficient bona fide efforts to make payments. The trial court's findings do not necessarily have to be in writing. These due process requirements apply regardless of whether child support payment conditions were imposed by the trial court or whether the defendant agreed to these conditions as part of a plea agreement. In cases in which the defendant agreed to child support payment conditions under a plea agreement, the trial court may properly focus its inquiry on post-plea financial changes without revisiting whether the defendant was able to make payments at the time the guilty plea was entered.
Randy Marshall and Mark Johnson each entered guilty pleas to charges of flagrant nonsupport in Graves Circuit Court. Under plea agreements reached in each of their cases, they agreed to pay current child support and to make regular installment payments on the accumulated child support arrearages. Each received sentences that were conditionally discharged subject to the requirement of remaining current on child support obligations and making specified monthly payments on the arrearage.
The Commonwealth later moved to revoke Marshall's and Johnson's conditional discharge based on failure to comply with child support payment conditions. Johnson twice failed to appear at hearings on the motion to revoke, causing the trial court to issue two show cause orders and eventually to issue a bench warrant for Johnson's arrest.
The trial court conducted a revocation hearing in each case. At both hearings, the Commonwealth presented the testimony of a child support caseworker that Marshall and Johnson failed to make most of the required child support payments. By the time of their hearings, Marshall and Johnson had each failed to make any payments for more than a year and were thousands of dollars behind on their support obligations.
At both hearings, defense counsel cited United States Supreme Court and Kentucky precedent concerning probation revocation for failure to pay restitution and fines to support the argument that revocation of conditional discharge for one who is simply too poor to make the payments violates due process. Marshall and Johnson both testified that they had not willfully refused to pay child support. They testified that they had been unable to make the required child support payments because of low income caused by inability to find or maintain sufficiently remunerative employment.
Johnson explained simply that he was unable to find suitable work because of his felony record.
Despite Marshall's and Johnson's explanations of their alleged inability to pay child support, the trial court revoked their conditional discharges.
At Johnson's hearing, the trial court stated that the fact of Johnson's nonpayment for over a year indicated a willful refusal to pay. And it noted that the Commonwealth would not be in a position to prove Johnson's ability to work and expressed a belief that the burden shifted to Johnson to show that he was not able to work.
At Marshall's hearing, the trial court expressed doubt that Marshall was unable to find gainful employment, noting its impression that undocumented, non-English speaking persons were able to find jobs. And in response to defense counsel's request to consider alternative forms of punishment, the trial court stated that a year and half was a long time not to pay a nickel of child support.
Following these hearings, the trial court entered written orders revoking Marshall's and Johnson's conditional discharge.
A. History of Present Cases—Court of Appeals.
Both Marshall and Johnson appealed to the Court of Appeals. And the two panels hearing these appeals resolved the cases differently, although both vacated the trial court's revocation orders and remanded each case to the trial court for further proceedings.
The Court of Appeals panel considering Marshall's appeal remanded for written
Similarly, the panel in Johnson's appeal also remanded for findings of fact identifying the evidence relied on to support revocation. But this panel did not discuss the need for such findings to be made in writing. The majority of the Johnson panel discussed how probation revocation for failure to pay fines and restitution required inquiry into the reasons for nonpayment and consideration of alternative forms of punishment. The majority directed the trial court on remand to afford Johnson an "opportunity to present evidence arising post-plea of his inability to make payments."
The dissenting judge in Johnson argued that the trial court did not abuse its discretion and that "[t]here is no legal authority requiring the trial court to inquire into the reason for nonpayment or to consider alternative methods of punishment when revoking Johnson's conditional discharge for nonpayment of child support." The dissent concluded that cases dealing with probation violations for nonpayment of fines and restitution, such as Bearden v. Georgia
B. Other Recent Kentucky Precedent.
1. The Court of Appeals Published Gamble v. Commonwealth.
A third panel of the Court of Appeals rendered a published opinion in Gamble v. Commonwealth,
The Gamble panel accepted the argument that payment of child support arrearages was restitution.
2. This Court Published Commonwealth v. Alleman.
After Gamble, this Court considered whether "a trial court's findings of fact and reasons for revocation entered orally on the record from the bench are sufficient to satisfy due process" in Commonwealth v. Alleman.
So in Alleman, this Court reversed the Court of Appeals and reinstated the trial
The current state of Kentucky caselaw lacks clarity or consistency to guide trial courts on due process requirements for resolving probation revocation motions based on a failure to comply with child support payment conditions. One panel of the Court of Appeals declared that a Bearden analysis is not required in such cases, and other panels have declared or suggested that Bearden analysis is required. As the panel noted in Gamble, some authority holds that Bearden analysis is not required when the defendant specifically agreed to the payment conditions as part of a plea agreement.
Bearden Due Process Requirements Apply to Cases When Probation Revocation is Sought for Failure to Comply with Child Support Payment Conditions Because Payment of Past Due Child Support is Restitution.
The opinions of the Court of Appeals in the cases before us reached divergent holdings on what due process requires in these cases. And this Court has not previously extended due process requirements for resolving motions to revoke probation for failure to pay fines and restitution to this context. Namely, the trial court must consider (1) whether the probationer made sufficient bona fide attempts to make payments but been unable to do so through no fault of his own and, if so, (2) whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.
As the Court of Appeals aptly stated in Gamble, payment of past due child support is restitution:
So we agree with the Court of Appeals in Gamble that the Bearden case requirements apply to motions for probation revocation for failure to comply with conditions requiring payment of child support.
Bearden Requirements Apply Even When Defendant Agrees to Payment of Child Support as Probation Condition Under Terms of Plea Agreement.
The Commonwealth acknowledges that Gamble held payment of past due child support to be restitution and that Bearden requirements should generally apply to motions for revocation for failure to pay child support under Gamble. But the Commonwealth asserts that the Court of Appeals held in Gamble that Bearden does not apply where the probationer has specifically agreed to make payments as part of a plea agreement. We disagree. The Court of Appeals did not decide that precise issue in Gamble. The court noted that some jurisdictions found that Bearden did not apply in such a situation but declined to resolve the case on this basis because the parties had not argued this issue.
We agree with the approach of the Court of Appeals in Johnson directing the trial court to focus on post-plea financial conditions because a defendant pleading guilty to flagrant nonsupport admits not making payments despite ability to do so,
Kentucky courts have long recognized such concerns. Even though the Court of Appeals indicated that consideration of the probationers' indigence was not required when revoking probation for failure to comply with payment conditions that the defendant specifically agreed to under a plea agreement in the pre-Bearden case of Polk v. Commonwealth,
We note the defendant in Bearden pled guilty to burglary and theft by knowingly receiving stolen property. The trial court did not enter judgment of guilt but deferred further proceedings and placed the defendant on probation with conditions of probation, including payment of a fine and restitution.
Despite the fact that the defendant in Bearden did not specifically agree to make payments a condition of his probation under a formal plea agreement, we believe Marshall's reply brief makes a good argument that Bearden is applicable to the cases at hand because "[t]he focus of the Court's analysis was not whether the defendant bargained for the restitution and fine...." On the contrary, the focus of the Bearden decision was "whether due process was violated by imposing a prison sentence for a defendant for whom the court had previously decided a loss of freedom was inappropriate but only changed its mind when the defendant became unable to pay despite good faith efforts to do so." And, as Marshall argues, the Bearden court distinguished between probationers who willfully refused to make the payments required as condition of their probation and probationers who made good faith efforts to pay but were unable to comply with such conditions because of circumstances beyond their control.
But Bearden does not distinguish between those who agree to make payments under a plea agreement and those who are ordered by the trial court to make such payments as a condition of probation or conditional discharge. As Marshall points out, regardless of whether the defendant and the Commonwealth reach a formal plea agreement, ultimately, the trial court (not the parties) decides whether to grant probation or conditional discharge and whether to impose payment conditions. So the trial court imposes any payment conditions whether by accepting the parties' plea agreement or by acting on its own initiative. And even when conditions are imposed by the trial court rather than agreed to by the parties, a defendant must agree to the conditions of probation and is free to reject probation.
As Justice O'Connor wrote in Bearden, the initial decision to place a defendant on probation "reflects a determination by the sentencing court that the State's penological interests do not require imprisonment."
Often Kentucky trial courts grant probation or conditional discharge to those entering guilty pleas to flagrant nonsupport under plea agreements, perhaps recognizing that many defendants whose criminal offense is flagrant nonsupport do not require
Because the trial court initially rejected a sentence of imprisonment, Bearden indicates that the trial court must determine in revocation proceedings whether a failure to comply with payment conditions means that imprisonment now becomes necessary to fulfill penological interests. Bearden holds that where the probationer has not made reasonable efforts to comply with payment conditions but has willfully refused to pay, the determination of whether imprisonment is required needs re-evaluation.
Bearden recognized that once a defendant is probated, he then acquires an interest in remaining on probation rather
C. Trial Court Must Make Specific Findings on the Record of
Because Bearden requirements apply despite the defendants' agreeing to make child support payments as part of the plea bargaining process, the Court of Appeals reached the correct result in both cases by vacating the trial court's orders revoking probation for Marshall and Johnson. We note that the trial court did afford both defendants an opportunity to present evidence to explain their failure to make the required payments. But the trial court failed to make adequate findings on the record: (1) whether each defendant had made sufficient bona fide efforts to make payments but was unable to do so from no fault of his own and, if so, (2) whether alternatives to incarceration would suffice to accomplish the Commonwealth's punishment and deterrence objectives.
Similarly to the trial court in Bearden, which commented on the availability of odd jobs but made no finding about whether the defendant made sufficient bona fide efforts to comply with his payment conditions,
Likewise, it did not explicitly find whether Johnson made sufficient bona fide attempts to make payments, despite stating that his failure to make payments for over a year indicated a willful refusal to pay. This statement gives the appearance that the trial court based any finding of a willful refusal to pay based solely on the lack of payments for over a year without explicitly assessing whether the defendant had made sufficient bona fide efforts to pay but was unable to do so due to no fault of his own.
On remand, the trial court is directed to find whether each defendant made sufficient bona fide attempts to make payments but was unable to make the required payments through no fault of his own and, if so, whether alternative punishment might accomplish the Commonwealth's punishment and deterrence objectives. The trial court must specifically identify the evidence it relies upon in making these determinations on the record, as well as the specific reason(s) for revoking probation on the record. Although we indicated in Alleman that such findings do not necessarily have to be in writing, we hold that the trial court must make such findings specifically on the record. It is not enough that an appellate court might find some evidence in the record to support a reason for revoking probation by reviewing the whole record. Stating "general
D. Trial Court May Properly Focus Inquiry on Post-Plea Changes Where Defendant has Pled Guilty to Flagrant NonSupport and Agreed to Make Child Support Payments as Probation Condition Under Plea Agreement.
It is entirely appropriate for the trial court to consider a defendant's agreement to payment conditions under the plea agreement and a defendant's representation that he could make such payments when entering his guilty plea and to focus on post-plea financial changes to the extent possible.
As with all probation revocation hearings, the Commonwealth has the burden of proving a probation violation by a preponderance of the evidence.
For the foregoing reasons, we affirm the decisions of the Court of Appeals vacating the trial court's judgments and remanding for further proceedings. Upon remand,
All sitting. ABRAMSON, NOBLE, and SCHRODER, JJ., concur. CUNNINGHAM, J., dissents by separate opinion in which SCOTT and VENTERS, JJ., join.
CUNNINGHAM, J., dissenting:
Even Yoda, the diminutive Star Wars guru, recognized that sometimes in life we have to fish or cut bait. "Do or do not. There is no try."
It is an admonition which fits the deadbeat parent when all our solicitous pleadings and beseeching have led nowhere. The courtrooms of Kentucky are visited daily by custodial parents of children—usually mothers—seeking child support from noncustodial parents—usually fathers. Our County Attorneys collected a whopping 416 million dollars in 2009 and over 400 million dollars in 2010 in past due child support. This is the amount which has been collected. Sadly, it falls way short of that which is owed. According to the U.S. Department of Health and Human Services, in 2010 there was still approximately 1.3 billion dollars in owed, but unpaid, child support obligations in Kentucky. The Office of Child Support Enforcement, 2010 Preliminary Report—State Box Scores, 9-10, http:// www.acf. hhs.gov/programs/cse/pubs/2011/reports/ preliminary_report_fy2010/state.html.
For every judge—district, family, circuit—it is drudge work. Typically, on the civil side, destitute mothers stand forlornly before them, sometimes working at two jobs, begging for help in feeding the mouths of their children. Standing on the other side of the courtroom are fathers, sometimes thousands of dollars behind in their obligations. This creates not only a terrible hardship on young mothers, but strains our already strapped welfare system. All of these proceedings take place under the constraints and dictates of Lewis v. Lewis, 875 S.W.2d 862 (Ky.1993), which affords the delinquent custodian basic rights, including the right to counsel before incarceration can be imposed. Sad and weary stories come to the judge from both sides of the courtroom as mothers lament want and fathers lament lack Of income. Need is always established. And there are cases peppering our dockets where fathers are acting in good faith, actually down on their luck, trying desperately to work, scraping out a mere existence for their own survival, and deprived of any means whatsoever of providing for their children. These seldom make it to the criminal stage. The trial judge must wade through this maze of entangling stories of woe and decide who is telling the truth and who is not, who is malingering and who is not, who is embellishing his or her condition and who is not and finally come to some solution. But usually there is no solution. When this civil action has run aground and options are exhausted, a weary process moves to the grand jury. There is born the felony charge of flagrant nonsupport.
What the Court does today is blend the civil process into the criminal and, in effect, mandate that the Commonwealth prove once again the ability to pay—even after a defendant has pled guilty to the felony of persistently failing "to provide support which he can reasonably provide and which he knows he has a duty to provide by virtue of a court or administrative order to a minor...." KRS 530.050(2). (Emphasis added.)
The Court today seems to unrealistically think of these defendants in flagrant nonsupport cases as being dressed in the rags of a Dickens' chimney sweep struck down by the oppressive yoke of penury beyond
The criminal defendant for flagrant nonsupport is girded with all of the constitutional protections as one who is charged with murder. The right to vigorous counsel, opportunity to a jury trial, unanimous verdict, and all of the due process habiliments are there for the asking.
Now facing prison, the defendant always seeks one more chance. Probation is sought and—to the glee of the delinquent parent—it is granted. Conditions are imposed. Go pay your child support. Unlike the civil directive, the command is not to go and try to pay your child support—but pay. "Do or do not. There is no try."
That's what criminal probation is all about. A person has been convicted. The presumption of innocence is gone. And while he or she is entitled to certain due process rights at revocation hearings, the burden of proof is only preponderance of the evidence that the condition was violated. That's all. The inability defense was waived with the guilty plea. Otherwise, we are morphing the criminal action—which is penal—back into a civil action—all to the weary chagrin of desperate mothers. The prosecutor's recommendation in these cases always includes the condition that the defendant will pay future child support. It is not a condition that he or she will try to pay future child support.
The following sentence is the gist of this dissent. Under our decision here today, the Commonwealth loses a very vital part of its bargain—the part which relieves it from continuing to carry the burden of proving the ability to pay.
It's not fair. It's not fair to the Commonwealth. It's not fair to the parent waiting for the check. Most importantly, it's not fair to the innocent babe who is totally unable to support itself.
I disagree strongly with the majority's position that a plea agreement does not "eviscerate the right he would otherwise have under Bearden." This is contrary to the rule in many states. North Dakota was the pioneer in this view and it is one worth emulating. Nordahl, its seminal case, says Bearden only applies in cases where restitution is imposed by a court order and, therefore, does not apply where it is agreed to in a plea agreement.
State v. Nordahl, 2004 ND 106, 680 N.W.2d 247, 252 (quoting United States v. Foust, 25 M.J. 647, 649 (A.C.M.R.1987)).
Along with North Dakota, several other states and jurisdictions follow this, plea agreement view. See Polk v. Commonwealth
It puzzles me that the Court here today extends more judicial grace to those who shirk their responsibilities for their own children than those who are mercilessly enslaved to addiction. When a criminal defendant is probated on the condition that he will not imbibe in alcohol or use illegal drugs, the evidence is typically a dirty drug screen. The trial court is not required to make any finding other than the defendant violated the terms of probation. In fact, there is no other condition of probation where the judge has to make a finding behind the infraction. With our decision here today, we make it more difficult for the state to enforce child support laws. In doing so, we now add another dimension to flagrant nonsupport probation at the expense of needy children. Our system of criminal prosecution for flagrant nonsupport will not break down because of our decision here today. But we have added one more piece of baggage onto the trial bench. And we never take anything off.
The U.S. Supreme Court has had a chance to expand Bearden, but has not done so. In fact, our decision today goes beyond the dictates of our nation's highest court. In Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985), it held that the trial court does not have to state explicitly why it has rejected alternatives to incarceration. Our majority states, however, that the trial court must find "whether alternative punishment might accomplish the Commonwealth's punishment and deterrence objectives." Oddly enough, this is not even required when the delinquent is incarcerated on the civil side for contempt.
The crime of flagrant nonsupport is unique in that either a jury or a court has—in making a finding of guilt—determined that the defendant failed to make child support payments in violation of a court order "which he could reasonably provide." KRS 532.050(2). It is not like the burglary crime in Bearden. No finding is made at the time of the judgment of guilty and imposition of probation for a burglary crime whether the defendant has the ability to pay the restitution. In the flagrant nonsupport, that is an element of the crime. The court has already made the finding that the defendant had the means to pay the money owed. It is ludicrous to require the Commonwealth to prove by a preponderance of the evidence at a revocation hearing what it has already proven beyond a reasonable doubt. In requiring a new finding on that indebtedness, we are in essence setting aside one of the elements of the crime for which the defendant has already pled guilty.
With all due respect, I believe the majority misreads Gamble v. Commonwealth by relying on it for the proposition that child support arrearage is restitution. When one reads this Court of Appeals' holding, it is evident that issue was sidestepped. Said the Gamble court: "Omitting the plea agreement issue and assuming the trial court was required to follow Bearden principles and inquire into the reasons for Gamble's failure to pay, [the court] was effectively precluded from doing so in this case because Gamble refused to testify." 293 S.W.3d 406, 412 (Ky.App. 2009) (emphasis added). That is the narrow holding of Gamble. In fact, that opinion admits that "[a]t this time, however,
In any event, I would submit that the facts here are different from those in Gamble. In both Marshall and Johnson, the trial court revoked probation for failure to "keep current" in child support. It would appear from reading Gamble that his revocation was primarily for arrearage established at the time of the plea. (Not to belabor a point made earlier as to the irresponsible nature of the typical nonsupport felon, but the reckless Gamble—over $13,000 behind in his child support—was finally arrested skulking in an abandoned trailer.)
Surely, the requirement to make future child support is not restitution and does not fall within the Bearden purview. In fact, failure to pay future child support is the same as failure to comply with any other condition of probation.
However, our Court today tries to shoehorn the dictates of Bearden into covering future failures to pay child support as restitution. Failure to pay future child support as a condition for probation is definitely not the same as failure to pay restitution. First of all, it is not fixed at the time of the judgment of conviction. Secondly, it does not even fall within our statutory definition of restitution. KRS 532.350(1)(a) defines restitution as "any form of compensation paid by a convicted person to a victim for ... expenses suffered by a victim because of a criminal act." (Emphasis added.) The "criminal act" for which Marshall and Johnson are convicted is past due child support, not future support not paid. The future delinquencies have not yet been adjudicated crimes.
Therefore, for the reasons stated above, I would affirm. I thereby respectfully dissent.
SCOTT and VENTERS, JJ., join.