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Unpublished Opinion No.  2009-UP-157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.