State v. Lydia Alicea

Supreme Court

No. 2023-43-C.A.
(P2/18-3891A)

State :

v. :

Lydia Alicea. :

NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court

No. 2023-43-C.A.
(P2/18-3891A)

State :

v. :

Lydia Alicea. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Goldberg, for the Court. This case came before the Supreme Court

on February 28, 2024, pursuant to an order directing the parties to appear and show

cause why the issues raised in this appeal should not be summarily decided. The

defendant, Lydia Alicea (defendant or Alicea), appeals from a Superior Court

judgment declaring her to be in violation of her deferred-sentence agreement. After

considering the arguments of counsel and examining the memoranda filed by the

parties, we are of the opinion that cause has not been shown, and we will proceed

to decide the case at this time. For the reasons stated herein, we vacate the judgment

of the Superior Court and remand for further proceedings consistent with this

opinion.

-1-
Facts and Travel

On or about January 29, 2019, Alicea was charged by way of criminal

information with violating G.L. 1956 § 11-41-4, which occurred between February

18, 2017, and August 1, 2017. 1 On June 19, 2020, defendant appeared before the

Superior Court and entered a plea of nolo contendere; the court imposed a two-year

deferred sentence and ordered $1,800 in restitution. The defendant entered into the

deferred-sentence agreement with the Office of the Attorney General, thereby

agreeing to the terms of her sentence as set forth by the court, including the payment

of restitution. Judgment entered on July 22, 2020.

The defendant failed to pay the court-ordered restitution in accordance with

the agreement. It was not until almost two years had elapsed that the state filed a

notice of violation pursuant to Rule 32(f) of the Superior Court Rules of Criminal

Procedure and defendant appeared before a Superior Court magistrate on May 31,

2022. During that appearance, the magistrate inquired whether defendant had the

ability to pay the outstanding balance before the expiration of her sentence. The

defendant represented that she could satisfy the outstanding amount before the

deferred-sentence agreement expired, because she recently had become employed.

1
See G.L. 1956 § 11-41-4, Obtaining property by false pretenses or personation, a
larceny offense.
-2-
The court continued the matter to June 9, 2022, in order for defendant to make

payment.2

The defendant next appeared before the magistrate on June 9, 2022, and

advised the court that she had failed to make any payments towards her outstanding

balance, but that she would make a partial payment that day. The court referred her

to the Public Defender’s Office and scheduled a violation hearing—with

witnesses—for June 15, 2022, based on defendant’s failure to comply with the

restitution obligation of her deferred-sentence agreement.

At that hearing, both defendant and the state stipulated to the

deferred-sentence agreement and, after accounting for the $516.25 that Alicea paid

on June 9, 2022, the remaining balance was $1,300. That same morning, on June

15, 2022, Alicea submitted a hand-written financial statement in support of her

argument that she was unable to pay restitution. The court “found that [defendant]

has not paid the restitution[,]” and she, therefore, was in violation of the

deferred-sentence agreement. The court noted that the next step after a finding of

violation was sentencing but recognized that there were procedural challenges

moving forward because of the nature of a deferred sentence. Upon finding

2
At the May 31, 2022 hearing, the record indicated Alicea had an outstanding
balance of $1,800 in restitution, having failed to make any payments for almost two
years.

-3-
defendant in violation of the agreement, the court observed that “[t]he 32(f) [has

been] met. It’s not really a violation of probation. It’s the violation of a deferred

sentence. So the [d]eferred [s]entence [a]greement has basically become null and

void due to the fact that [defendant] was not able to pay. * * * We now have to go

back to actually sentencing her.” Based on the court’s finding that “[t]he fair

preponderance of the evidence is that the deferred [sentence] agreement was not

met,” the court then turned to Alicea’s ability to pay before imposing sentence. The

case was continued to the following day. The magistrate determined that the

financial statement “in and of itself” was not enough to establish an inability to pay

and allowed defendant to reserve the right to request a hearing relative to that issue.

However, the court proceeded to impose a sentence of three years of probation and

ordered defendant to pay $36.15 in monthly installments toward the outstanding

restitution amount.

The defendant filed a timely notice of appeal of the magistrate’s decision to

a justice of the Superior Court; the case was assigned to the trial justice. On

September 20, 2022, the trial justice granted defendant’s motion to stay the

restitution payments while the case was pending. The defendant’s appeal was heard

on November 17, 2022. On November 18, 2022, the trial justice issued a written

decision denying the appeal; the stay was vacated, and restitution payments were

set to resume on December 1, 2022. This appeal ensued.

-4-
Standard of Review

To establish a deferred-sentence violation, the state must demonstrate “by a

fair preponderance of the evidence that the defendant breached a condition of the

defendant’s probation or deferred sentence * * *.” Super. R. Crim. P. 32(f). “This

Court will reverse a probation-violation finding only if the hearing justice acted

arbitrarily or capriciously.” State v. Regan, 273 A.3d 116, 119 (R.I. 2022) (quoting

State v. LaRoche, 883 A.2d 1151, 1154 (R.I. 2005)).

Analysis

On appeal, defendant argues that the trial justice erred in affirming the

magistrate’s decision—declaring defendant a violator of the deferred-sentence

agreement—because the court did not conduct an adequate hearing concerning

whether she had the ability to pay the restitution in accordance with G.L. 1956

§ 12-19-19.3 The defendant also submits that the trial justice improperly applied

3
General Laws 1956 § 12-19-19 states:

“(a) Whenever any person is arraigned before the superior
court and pleads guilty or nolo contendere, he or she may
be at any time sentenced by the court; provided, that if at
any time the court formally defers sentencing, then the
person and the court shall enter into a written deferral
agreement to be filed with the clerk of the court. When a
court formally defers sentence, the court may only impose
sentence up to five (5) years from and after the date of the
written deferral agreement, unless during the required
period, the person shall be declared to have violated the
terms and conditions of the deferment pursuant to
-5-
our holding in the recent case of State v. Regan, 273 A.3d 116 (R.I. 2022), because,

defendant broadly asserts, “the plain language of the law and the

deferred-agreement itself state unequivocally that determinations of violations are

handled in the same manner [as probation violations].” See § 12-19-19.

subsection (b) in which event the court may impose
sentence.

“(b) The court may require that the person agreeing to said
deferment of sentence shall not violate any condition of
the written deferral agreement. A violation of any
condition set forth by the written deferral agreement shall
violate the terms and conditions of the deferment of
sentence and the court may impose a sanction or impose
sentence. The determination of whether a violation has
occurred shall be made by the court in accordance with
procedures relating to violation of probation in court rules
and §§ 12-19-2 and 12-19-14.

“(c) If a person, after the completion of the deferment
period is determined by the court after a hearing to have
complied with all of the terms and conditions of the
deferral agreement including, but not limited to, the
payment in full of any court-ordered fines, fees, costs,
assessments, and restitution to victims of crime, then the
person shall become immediately eligible for
consideration for expungement pursuant to the provisions
of §§ 12-1.3-2 and 12-1.3-3.”

We pause to note that in 2017, the General Assembly amended § 12-19-19,
thereby removing “attorney general” as the second party to the deferred-sentence
agreement and inserted “court” as the other party entering into the deferred-sentence
agreement. See P.L. 2017, ch. 345, § 1; P.L. 2017, ch. 351, § 1. As discussed herein,
the deferred-sentence agreement Alicea signed included the “attorney general” as a
signatory to the agreement and required the attorney general’s consent.
-6-
This contention is correct only to the extent that § 12-19-19(b) provides that

“[t]he determination of whether a violation has occurred shall be made by the court

in accordance with procedures relating to violation of probation in court rules and

§§ 12-19-2 and 12-19-14.” Section 12-19-19(b) (emphases added). In the case of a

deferred sentence, the agreement remains open, pending compliance with its terms.

Thus, for the reasons stated herein, we are of the opinion that, when a trial justice

imposes restitution as part of a deferred sentence, a defendant’s ability to pay shall

be determined before the plea is accepted.

Characteristics of Deferred Sentences

This Court has recognized that “the deferred sentence statute [is] remedial in

nature, one that confers a benefit upon the accused and places within his control the

opportunity for rehabilitation.” State v. Briggs, 934 A.2d 811, 817 (R.I. 2007). This

is an “act of grace.” State v. Plante, 109 R.I. 371, 377, 285 A.2d 395, 398 (1972).

Although we have observed that there are certain instances in which deferred

sentences and probation are to be treated similarly, 4 we have explicitly declared that

the two are “distinct,” Briggs, 934 A.2d at 817, in that a “[deferred sentence] is not

4
This Court observed “that deferred sentences should be treated like probationary
dispositions in the expungement context. We have characterized a nolo contendere
plea followed by probation as a conviction for purposes of expungement.” State v.
Briggs, 934 A.2d 811, 817 (R.I. 2007).
-7-
to be confused with a substantive right, or with a sentence, or with a suspended

sentence.” State v. Carmello, 83 R.I. 303, 309, 116 A.2d 464, 467 (1955).

In the case at bar, the trial justice determined that a deferred sentence is

substantively different, and, therefore, Regan was not on all fours with the issues

presented in this appeal. We agree. It is clear that a deferred sentence and a

suspended sentence with probation share some of the same procedural mechanisms

designed to hold a defendant accountable in the event of a violation. The procedural

path is the same.

Rule 32(f) of the Superior Court Rules of Criminal Procedure provides that:

“The court shall not revoke probation or revoke a
suspension of sentence or impose a sentence previously
deferred except after a hearing at which the defendant
shall be afforded the opportunity to be present and
apprised of the grounds on which such action is proposed.
The defendant may be admitted to bail pending such
hearing. Prior to the hearing the State shall furnish the
defendant and the court with a written statement
specifying the grounds upon which action is sought under
this subdivision. No revocation shall occur unless the
State establishes by a fair preponderance of the evidence
that the defendant breached a condition of the defendant’s
probation or deferred sentence or failed to keep the peace
or remain on good behavior.” (Emphases added.)

However, “[a] suspended sentence is one actually imposed but the execution

thereof is thereafter suspended. A so-called deferred sentence is never imposed

unless the defendant violates his written agreement with the attorney general.” State

v. Robalewski, 96 R.I. 296, 300, 191 A.2d 148, 151 (1963) (emphases added).
-8-
Therefore, “[t]he two are not the same.” Id. We also have observed that a suspended

sentence, in the context of § 12-19-8, is not synonymous with and does not apply

to a deferred sentence.5 Id. While Rule 32(f) serves as the procedural mechanism

to hold violators accountable, including those who violate a deferred sentence, our

application of Regan to the case at bar reveals the substantive distinction between

them.

Ability to Pay

Although our caselaw gives clear guidance in the context of probation

violations for suspended sentences, we are called upon to address the issue of

nonpayment of restitution in the context of a deferred-sentence agreement.

As discussed, a deferred sentence remains open and is never imposed by the

court unless there is a finding that the defendant breached the terms of the

agreement or until it is successfully completed. See Robalewski, 96 R.I. at 300, 191

A.2d at 151. A failure to pay the agreed-upon restitution constitutes a breach of the

agreement, but generally does not rise to the level of a “fail[ure] to keep the peace

or remain on good behavior.” Super. R. Crim. P. 32(f).

The United States Supreme Court in Bearden v. Georgia, 461 U.S. 660

(1983), and this Court in State v. LaRoche, 883 A.2d 1151 (R.I. 2005), recognized

5
See § 12-19-8, Suspension of sentence and probation by superior or district court.

-9-
the dichotomy between a defendant’s failure to pay restitution when he or she has

the means to pay and the defendant refuses to do so; or when a defendant who does

not have the financial ability does not make payment. Bearden, 461 U.S. at 662;

LaRoche, 883 A.2d at 1154; see also Regan, 273 A.3d at 119.

In Bearden, the petitioner was indicted for felonies consisting of burglary and

theft by receiving stolen property. Bearden, 461 U.S. at 662. After the petitioner

entered a plea of guilty, “the trial court did not enter a judgment of guilt, but deferred

further proceedings and sentenced petitioner to three years on probation for the

burglary charge and a concurrent one year on probation for the theft charge.” Id.

Additionally, as part of the petitioner’s probation, he was required to pay a $500

fine and $250 in restitution. Id. However, the Bearden Court observed that the

petitioner had no income or assets during the period in which he was scheduled to

make such payments, and shortly before the $500 fine and $250 in restitution

became due, petitioner notified the probation office that the payment would be late.

Id. at 662-63. The record also revealed that the petitioner had recently been laid off

from his job, had only a ninth-grade education, and could not read. Id. at 662.

Several months after the petitioner notified the probation office of his inability to

pay, the state petitioned the trial court to revoke probation. Id. at 663. “After an

evidentiary hearing, the trial court revoked probation for [the petitioner’s] failure to

pay the balance of the fine and restitution, entered a conviction, and sentenced

- 10 -
petitioner to serve the remaining portion of the probationary period in prison.” Id.

(footnotes omitted).

The Supreme Court reversed the lower court judgment and observed that

“[i]f the probationer has willfully refused to pay * * * restitution when he has the

means to pay, the [s]tate is perfectly justified in using imprisonment as a sanction

to enforce collection.” Bearden, 461 U.S. at 668 (emphasis added). However, “if

the probationer has made all reasonable efforts to pay the fine or 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 668-69 (footnote omitted). What

is clear is that a defendant’s poverty does not necessarily immunize him or her from

punishment. Id. at 669. The Bearden Court noted that “when determining initially

whether the [s]tate’s penological interests require imposition of a term of

imprisonment, the sentencing court can consider the entire background of the

defendant, including * * * employment history, and financial resources.” Id. at

669-70. The difficulty arises in determining whether the defendant has “made all

reasonable efforts” to pay the amount of restitution in the agreement. Id. at 668;

see, e.g., LaRoche, 883 A.2d at 1155.

Moreover, the Supreme Court in Bearden emphasized that when payment has

not been made, it is important to “evaluat[e] the entire background of the defendant

- 11 -
in order to tailor an appropriate sentence * * *.” Bearden, 461 U.S. at 671. “By

sentencing petitioner to imprisonment simply because he could not pay the fine,

without considering the reasons for the inability to pay * * * the [lower] court

automatically turned a fine into a prison sentence.” Id. at 674. The Court held that,

“[o]nly if alternative measures are not adequate to meet the [s]tate’s interests in

punishment and deterrence may the court imprison a [defendant] who has made

sufficient bona fide efforts to pay. To do otherwise would deprive the [defendant]

of his [or her] conditional freedom because, through no fault of [the defendant’s]

own, he [or she] cannot pay the fine. Such a deprivation would be contrary to the

fundamental fairness required by the Fourteenth Amendment.” Id. at 672-73.

We contrast the holding in Bearden with LaRoche, in which this Court was

presented with a defendant’s deliberate avoidance of restitution in the face of ample

evidence that his expenditures “[were] not consistent with his claim that he made a

good faith effort to pay his restitution.” LaRoche, 883 A.2d at 1156; see also

Bearden, 461 U.S. at 672-73. This Court concluded that the defendant’s actions

“demonstrate[d] a cavalier, if not reckless, disregard for the obligation to which

[defendant] had agreed and which was ordered by the court as a condition of

probation.”6 LaRoche, 883 A.2d at 1156.

6
On appeal, the defendant in State v. LaRoche, 883 A.2d 1151 (R.I. 2005),
contended that the evidence did not support the trial justice’s finding that he failed
to make “reasonable bona fide efforts to fulfill his restitution obligation.” LaRoche,
- 12 -
The record demonstrated that LaRoche failed to disclose under oath “an

accurate accounting of his monetary holdings,” and “placed assets in the names of

his children, his attorneys, and other individuals.” LaRoche, 883 A.2d at 1156. The

hearing justice also observed LaRoche’s untruthful and evasive testimony, and,

therefore, found him not credible. Id. This Court concluded that his conduct

“reasonably [gave] rise to an inference of intent to conceal.” Id. Accordingly, the

hearing justice declared LaRoche to be a violator of the terms of his probation by

failing to pay $100,000 restitution, and he was sentenced to serve four years of his

five-year suspended sentence. Id. at 1154. This Court affirmed. Id. at 1157.

In the case before us, unlike Bearden and LaRoche, we are presented with a

defendant who violated the terms of her deferred-sentence agreement—as opposed

to violating a condition of probation—and, unfortunately, scant evidence for the

magistrate to consider prior to imposing probation for the failure to comply. We

are mindful that a deferred sentence, which is not a final judgment, is rather “an act

of grace,” Plante, 285 A.2d at 398, and a useful vehicle in criminal dispositions,

particularly for first time offenders who can thereby avoid a felony conviction. See

883 A.2d at 1155. He was mistaken. The record contained an overwhelming
amount of evidence that LaRoche had sufficient funds to pay restitution, but instead
elected to make several discretionary purchases, including: a $6,000 diamond
engagement ring; a $5,000 investment in a vehicle; a vacation in Europe; and airline
tickets. Id. at 1156.

- 13 -
Carmello, 83 R.I. at 309, 116 A.2d at 467 (“The underlying principle of law

governing a deferred sentence agreement” was first recognized in Orabona v.

Linscott, 49 R.I. 443, 144 A. 52, 53 (1928).).7 In Carmello, we noted:

“The provision authorizing the attorney general to enter
into a deferred sentence agreement confers no right upon
the defendant to demand such an agreement or a deferred
sentence. Nor does it compel the court to approve an
agreement and grant a deferred sentence. The
postponement of the case for sentence by the court, upon
execution by defendant of the conditional deferred
sentence agreement, is a mere privilege accorded to him
under the conditions therein set forth. [A deferred
sentence] is not to be confused with * * * a sentence, or
with a suspended sentence.” Carmello, 83 R.I. at 309, 116
A.2d at 467 (emphases added).

Based on our longstanding viewpoint that a deferred sentence is a mere

privilege, we conclude that restitution obligations, in the context of a

deferred-sentence agreement, are serious matters. See Carmello, 83 R.I. at 309, 116

A.2d at 467. A defendant’s failure to comply with a promise of restitution in a

deferred sentence stands on different footing, based on the court’s obligations in

this context. For example, a disposition in which a sentence has been deferred

7
Although Orabona v. Linscott, 49 R.I. 443, 144 A. 52 (1928), has been superseded
by statute and subsequent caselaw regarding the temporal aspects of a deferred
sentence; we note that Orabona stands for the proposition that it has been our state’s
longstanding practice that deferred-sentence agreements are made between the
defendant, and the attorney general, and filed with the clerk of the court. See
Orabona, 49 R.I. at 446, 144 A. at 53; see also Giroux v. Superior Court, 86 R.I. 48,
50-51, 133 A.2d 636, 638 (1957).
- 14 -
cannot be expunged unless the defendant has paid restitution. See § 12-19-19(c) (“If

a person, after the completion of the deferment period[,] is determined by the court

after a hearing to have complied with all of the terms and conditions of the deferral

agreement including, but not limited to, the payment in full of any * * * restitution

* * * then the person shall become immediately eligible for consideration for

expungement * * *.”) (emphases added).

Recently, this Court addressed the precise issue concerning a defendant’s

inability to pay; but we did so only in the context of a suspended sentence and

probation. See Regan, 273 A.3d at 118. Because the issue of nonpayment is the

central issue in this appeal, we look to Regan for guidance. In Regan, the defendant

entered a plea of nolo contendere to violating § 11-41-11.1, “unlawful appropriation

in an amount greater than $1,000,” a larceny crime. Id. As part of his sentence,

Regan was ordered to pay a whopping $520,295.46 in restitution, an

“insurmountable amount.”8 Id. at 118, 120. Regan’s failure to pay the full amount

of his restitution by the expiration of his sentence led the state to file a notice of

violation in accordance with Rule 32(f). Id. at 118. The Superior Court held a

violation hearing and declared Regan to be a violator because he would be unable

8
Regan was sentenced to ten years at the Adult Correctional Institutions, with one
year to serve at the ACI, one year to serve on home confinement, and eight years
suspended, with probation and 250 hours of community service. State v. Regan, 273
A.3d 116, 118 (R.I. 2022).
- 15 -
to pay the remaining $488,000 balance—at $200 a month—before his sentence

expired. Id. at 118, 120. The court declared that the violation would remain pending

until the restitution was satisfied. Id. at 118.

On appeal, this Court concluded that the trial justice neglected to consider

whether Regan’s failure to pay restitution was “willful, deliberate, or in defiance of

his obligations.” Regan, 273 A.3d at 120. We held, therefore, that the decision was

arbitrary and capricious, and we vacated the order of the Superior Court. Id. at 120,

121. This Court declared that:

“Imposition of a restitution order in such an
insurmountable amount in the absence of a hearing on the
[defendant’s] ability to pay ought to be avoided. The court
should proceed with caution before entering orders
proposed by the state that seek unrealistic restitution
amounts as part of a criminal sentence. * * * In the absence
of a finding concerning Regan’s ability to pay this amount,
it is irrational to conclude that Regan would face a lengthy
period of incarceration simply because he could not satisfy
$520,295.46 in monthly payments of $200. Simply put,
there were not enough months in his sentence to
accomplish this goal.” Id. at 120.

Although a condition of probation may include payment of restitution

ordered by the court, in order to “constitute a probation violation with consequences

for a breach of this condition [(i.e. nonpayment of restitution)], the court must

determine a defendant’s ability and [his or her] efforts to pay restitution—that is,

‘the reasons for the noncompliance.’” Regan, 273 A.3d at 119 (quoting LaRoche,

883 A.2d at 1154).
- 16 -
Before this Court, the state contends that defendant’s failure to satisfy her

restitution obligation is not analogous to the facts presented in Regan. The state

distinguishes the fact that, although Regan failed to satisfy his restitution obligation

before the probation term expired, he was nonetheless compliant by making

consistent monthly payments. See Regan, 273 A.3d at 118. Here, the state contends

that because Alicea failed to make any payment towards her restitution obligation—

and made only a single payment of $516.25 on June 9, 2022—this factor

distinguishes our holding in Regan from the case at bar. See id. Although it is

accurate that “[t]here was no dispute that Regan ha[d] been in full compliance with

the payment plan[,]” the state, notably, contended in Regan, that a notation in the

docket “mandated Regan to pay restitution in full by December 15, 2018.” Id.

(emphasis added). We reject the state’s argument.

In Regan, the issue was “whether the trial justice had the authority to keep a

prison sentence hanging over Regan’s head beyond the time when his sentence and

probationary term had expired.” Regan, 273 A.3d at 119 (internal quotation marks

and brackets omitted). We concluded that the trial justice in Regan had no such

authority. Id. at 121. Our observations in Regan were made in the context of a

judgment of conviction that was entered with probation as part of the defendant’s

sentence. Id. at 118. In the case at bar, the trial justice concluded that in certain

respects, Regan was inapplicable to the case before him. The trial justice found that

- 17 -
Regan did not apply because Alicea was not on probation; indeed she had not yet

been sentenced. The trial justice correctly found that “there was no sentence for the

[m]agistrate to keep ‘hanging over Alicea’s head’ for nonpayment of restitution.”

(Brackets omitted.) Rather, the probation was imposed after the magistrate

determined that Alicea was in breach of the agreement by failing to satisfy the

outstanding restitution before the expiration of the deferred sentence and that

defendant did not establish an inability to pay.

According to the record before us, defendant, the court, and the state entered

this deferred-sentence agreement consensually. We are of the opinion that the

agreement is contractual in nature and does not preclude the parties from

re-negotiating an extension up to the statutory limit of five years, as set forth in

§ 12-19-19(a), for an extended period of grace.9

We also note the court’s interaction with a defendant does not end when the

sentence is deferred. In fact, in this case, the agreement provided that Alicea was

scheduled to appear before the Superior Court on November 13, 2020—

approximately five months after the disposition.10 However, defendant’s

9
Although the court ordered a two-year deferred sentence, § 12-19-19(a) permits the
court to impose a deferred sentence up to “five (5) years from and after the date of
the written deferral agreement, unless during the required period, the person shall be
declared to have violated the terms and conditions * * * in which the court may
impose sentence.” Section 12-19-19(a).
10
This did not occur.
- 18 -
interaction with the Superior Court was minimal. The record provides no

explanation as to why Alicea’s nonpayment was not monitored more frequently.

Specifically, from the time Alicea entered into the deferred-sentence agreement

with the state and the court on June 19, 2020, she did not appear again before the

Superior Court until she was presented as a violator pursuant to the state’s Rule

32(f) notice of violation on May 31, 2022, and she paid no restitution whatsoever

for two years. While unfortunate, this is also a mitigating factor in evaluating the

reason she did not comply.

The defendant appeared on June 9, 2022, for a violation hearing; and the

matter was continued to June 15, 2022—days before the deferred-sentence

agreement was set to expire. There was no evidentiary hearing. The only evidence

presented was defendant’s representation that she became unemployed sometime

after the plea. Although Alicea provided the court with a financial statement, it is

clear from the record that the magistrate did not find the document sufficient to

demonstrate her inability to pay $36.15 per month. In fact, defendant submitted the

financial statement on the morning of the June 15th hearing, which the magistrate

evaluated and found to have been “submitted haphazardly” and, thus, she “let the

defendant reserve the right to have a full ability to pay hearing * * *.” No hearing

was requested or scheduled. Despite the magistrate’s conclusion that the financial

statement was an insufficient basis for a finding of an inability to pay, the court

- 19 -
imposed a three-year probationary term without a finding that defendant “made all

reasonable efforts” to satisfy her restitution obligation, and yet could not do so

“through no fault of [her] own * * *.” Bearden, 461 U.S. at 668 (footnote omitted).

On appeal, the trial justice found that the only question before the magistrate

was whether the conditions of the deferred-sentence agreement were violated by

Alicea’s nonpayment of restitution and, if so, whether the magistrate could impose

sentence, “for the first time.” He declared that because “both Bearden and Regan

specifically address the issue of violations of probation based on failure to pay fines

or restitution, and do not address violations of deferred sentences[,] * * * the

[m]agistrate was not required to make a finding of willfulness as to [defendant’s]

deferred sentence violation.” (Emphasis omitted); see Bearden, 461 U.S. at 662; see

also Regan, 273 A.3d at 118.

It is undisputed that Alicea breached the deferred-sentence agreement by

failing to satisfy the restitution condition before the agreement expired. However,

we are of the opinion that defendant is nonetheless entitled to an evidentiary hearing

to determine her ability to pay before a sentence—including probation—may be

imposed. In LaRoche and Regan, this Court set forth the circumstances a trial justice

must consider when evaluating a defendant’s ability to pay in the context of a

probation violation. See LaRoche, 883 A.2d at 1155-56; see also Regan, 273 A.3d

at 119-20. The court may consider evidence, such as bank records, credit-card

- 20 -
statements, W2-Forms, DR-6 Financial Statements, tax returns, and testimony so

that the trial justice can make a finding, by a fair preponderance of the evidence,

whether defendant had the ability to pay and, if not, whether the failure to do so was

deliberate.11 These same procedures apply to violations of deferred-sentence

agreements. See § 12-19-19; Super. R. Crim. P. 32(f).

In the case before us, the magistrate noted “that [defendant] would have a

longer time to pay that restitution at $36.15 a month” over three years; the question

remains, however: Did defendant have the ability to pay, such that the violation was

willful? If there was no deliberate or willful violation of the deferred-sentence

agreement, yet defendant failed to comply with the restitution required, the question

of a remedy in the context of a deferred-sentence agreement becomes the focal point.

In Bearden, the Supreme Court observed that if a defendant “has made all reasonable

efforts to pay the fine or restitution, and yet cannot do so through no fault of his

own,” a court should consider “whether adequate alternative methods of punishing

the defendant are available.” Bearden, 461 U.S. at 668-69. Adequate alternative

means, in the context of a deferred sentence, do not amount to a punitive sanction.

Rather, for example, these means can range from extending the deferred sentence to

the five-year statutory limit, amending the agreement to eliminate restitution where

11
“No revocation shall occur unless the State establishes by a fair preponderance of
the evidence that the defendant breached a condition of the * * * deferred sentence
or failed to keep the peace or remain on good behavior.” Super. R. Crim. P. 32(f).
- 21 -
there is no ability to pay, or imposing probation to afford the defendant an

opportunity to comply.

We appreciate the trial justice’s correct distinction between probation and a

deferred sentence. Because of this distinction, we deem it of even greater importance

that the court should proceed with caution prior to imposing restitution as a condition

of a deferred sentence. Restitution should be at the front of the court’s consideration

before it accepts a defendant’s plea; it should not be imposed until the court has had

an opportunity to evaluate the amount requested by the state and the defendant’s

ability to pay. We note that defendant’s restitution amount here was minimal, but

nonetheless she is entitled to an evidentiary hearing regarding her ability to pay

during the two-year deferred sentence.

It cannot be said that it is rational to approach a plea without exploring the

probability and likelihood that an individual, who is living in poverty, with limited

employment opportunities, has the financial ability to make restitution payments

without first establishing an appropriate, and feasible, amount, in light of a

defendant’s circumstances.12

12
Perhaps the most efficient and reliable way to avoid the issue of noncompliance
with restitution obligations is that the restitution amount should be determined in
advance and set forth as part of the information package. Adopting this approach
would allow the courts to evaluate whether restitution is appropriate and set a
reasonable amount of restitution that is achievable.
- 22 -
Burden of Proof

Because we are remanding this case to the Superior Court for further

factfinding, we provide guidance on the issue of the burden of proof that applies

when determining a defendant’s ability to pay in the context of a violation hearing

under Rule 32(f).

This Court has stated, “[w]hen payment of money is made a condition of

probation, and there is a claim of inability to pay, review must begin by considering

the holding * * * in Bearden * * *.” LaRoche, 883 A.2d at 1154. In LaRoche, the

defendant contended that the hearing justice impermissibly shifted the burden to

him to prove that he made sufficient bona fide efforts to pay restitution. Id. at

1154-55. We rejected that argument. Id. at 1155. In resolving that issue, this Court

looked to “other jurisdictions * * * [that] applied the principles of Bearden to cases

in which a [defendant] failed to pay restitution. * * * Those jurisdictions place the

burden on the [defendant] to establish that he or she made sufficient bona fide

efforts to obtain the funds necessary to pay.” Id. This Court concluded that, upon

inquiry into a defendant’s reasons for failing to meet the condition, it is the

defendant who must first “demonstrate sufficient bona fide efforts to repay his [or

her] debt * * *.” Id. (brackets omitted) (quoting State v. Fowlie, 636 A.2d 1037,

1039 (N.H. 1994)).

- 23 -
For example, as this Court noted in LaRoche, the Wyoming Supreme Court

also adheres to Bearden’s allocation of the burden of proof—requiring that the state

first establish that the probationer failed to pay restitution as required, and then the

probationer “must establish any defense to revocation based on his alleged inability

to pay.”13 LaRoche, 883 A.2d at 1155 (quoting Dickson v. State, 903 P.2d 1019,

1023 (Wyo. 1995)); see also Silvestro v. Almonte, 484 A.2d 900, 903 (R.I. 1984)

(“In every instance the burden of proving indigence in relation to the payment of

the required filing fee or other element of cost is upon the party seeking such

relief.”). This requires evidence and not a hastily prepared financial form.

We pause to note, however, that a defendant facing a violation for failure to

pay restitution is not responsible for the failings of the court and the state in

neglecting to timely notify the defendant to appear before the court. In the context

of a deferred sentence, the court and the attorney general as parties to the agreement

also have responsibilities to monitor compliance.

13
We note that our caselaw has repeatedly placed the burden on a party alleging an
inability to pay in other contexts. See LaRoche, 883 A.2d at 1155 (“This Court held
that before a body execution may be issued against a defendant who is a judgment
debtor, the defendant must be given a hearing to determine ability to pay.”) (citing
Landrigan v. McElroy, 457 A.2d 1056, 1062 (R.I. 1983)).

- 24 -
Here, the state filed its Rule 32(f) notice on May 27, 2022, less than a month

before the deferred-sentence agreement was set to expire.14 The defendant appeared

before the Superior Court on May 31, 2022, and was presented as a violator. On

June 9, 15, and 16, she again, appeared before the court regarding her failure to

make the promised restitution payments. It was not until June 15, 2022, that

defendant submitted a financial statement as evidence supporting her argument that

she was currently unable to pay restitution.

After our careful review of the record, we conclude that the defendant was

not afforded the opportunity for an evidentiary hearing relative to her ability to pay,

to which she was entitled, and was represented by counsel. The defendant’s sparse

evidence—a “haphazard[]” financial statement—was submitted to the court, but

failed to establish whether her failure to pay restitution was because of an inability

to pay or willful and deliberate refusal to pay. Nonetheless, we cannot review

whether the trial justice erred in affirming the magistrate’s decision—finding Alicea

in violation—because a hearing on an ability to pay did not occur.

14
We are mindful that the two-year deferment period coincided with the COVID-19
pandemic.
- 25 -
Conclusion

Accordingly, we vacate the judgment of the Superior Court declaring the

defendant to be a violator of a deferred-sentence agreement and remand the case to

the Superior Court for further proceedings consistent with this opinion.

- 26 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Title of Case State of Rhode Island v. Lydia Alicea.

No. 2023-43-C.A.
Case Number
(P2/18-3891A)

Date Opinion Filed July 1, 2024

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Providence County Superior Court

Judicial Officer from Lower Court Associate Justice Joseph A. Montalbano

For State:

Danielle Marie Beauvais
Department of Attorney General
Attorney(s) on Appeal
For Defendant:

Megan F. Jackson
Rhode Island Public Defender

SU-CMS-02A (revised November 2022)