Failure to pay restitution did not violate probation

There are two reasons why the circuit court erred when it found that appel­lant violated his probation by not paying restitution. First, the court revoked his suspended sentence for a conviction for which restitution was not ordered. Sec­ond, with respect to another conviction, appellant did not unreasonably fail to pay restitution during the time he was unemployed.

Overview

Appellant Ruff was convicted for work­ing without a contractor’s license and for obtaining more than $15,000 by false pretenses. For the false pretenses convic­tion, Ruff was given a six-year sentence, with five suspended, conditioned on five years of probation and payment of resti­tution. When restitution was ordered, the court was not required by law to set up a payment plan, and no payment plan was ordered. For working as an unlicensed contractor, Ruff was given a 12-month sentence with eight suspended., condi­tioned on two years of unsupervised pro­bation.

After his release from prison in March 2016, he was placed on telephone moni­toring for his supervised probation. He paid $1,125 in restitution between his re­lease and August, 2017, when he lost his job. He became employed in April 2018. In May, the probation department pre­pared a major violation report for both convictions at the commonwealth’s re­quest. The sole reason cited was “failure to pay restitution.”

After regaining employment, Ruff made a restitution payment in June and two in August, the second occurring two days before his revocation hearing.

“At the revocation hearing, the proba­tion officer who prepared the major viola­tion report testified. He explained that he did not supervise Ruff, nor had they met previously, and that he had prepared the report and request to show cause at the request of the Commonwealth.

“Ruff testified in his own defense. He explained that he had lost his job in Au­gust 2017, at which point he stopped making payments. He testified that he re­sumed payments shortly after regaining employment in late April 2018. No other testimony was offered to refute this ex­planation for the period of non-payment between August 2017 and June 2018, al­though the Commonwealth argued that Ruff only resumed payments when faced with a show cause.

“Ruff also testified about his income and expenses, and stated that he could af­ford to pay $100, twice a month, towards restitution.”

The court revoked Ruff’s suspend­ed sentences for both convictions, then re-suspended the remaining time and ordered Ruff to pay $200 a month in res­titution.

Ruff appealed.

Analysis

As an initial matter, the court erred by revoking Ruff’s suspended sentence for the licensing conviction for failing to pay restitution because no restitution was or­dered.

For a court to revoke a suspended sen tence for failing to pay restitution, under Code § 19.2-305(F), the failure to pay must be unreasonable.

“The parties concede that the circuit court found that Ruff’s payment of, or failure to pay, restitution was unreason­able. Yet the circuit court cited nothing in the record to suggest that his payment was unreasonable, nor did it make any factual findings or provide any rationale for why it so found.

“Ruff’s sentencing order did not specify a payment plan, nor did it even require that Ruff make a ‘good faith,’ ‘reasonable,’ or ‘ongoing’ effort.

“The terms of probation required Ruff to pay a certain sum in restitution – $15,398 – before the expiration of his probationary period, which was years away at the time of the hearing in this matter. Aside from the terms set forth in his sentencing order, Ruff had no other guidelines as to what was expected of him with respect to payment of restitution: he had not agreed to a payment plan with a probation officer; he did not even have a probation officer to consult.

“The evidence shows that Ruff made payments totaling $1,750 towards res­titution. He made payments whenever he was not incarcerated or unemployed. These payments, based on the limited evidence presented, were in line with the amount he could afford to pay. The circuit court made no factual findings to the con­trary; instead, it appeared to agree with Ruff’s assessment that he could afford to pay $200 a month towards restitution, as that is what it ordered him to pay.

“Even viewed in the light most favor­able to the Commonwealth, the facts do not support the circuit court’s finding that Ruff violated the terms of his probation.”

Reversed and remanded

Ruff v. Commonwealth, Record No. 1392-18-1, Jan. 14, 2020. CAV (Atlee) from Portsmouth Cir. Ct. (Kelmer). W. McMillan Powers for appellant, A. Anne Lloyd for appellee. VLW 020-7-011, 6 pp. Unpublished.