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State ex rel. Fleming v. Missouri Board of Probation and Parole

Supreme Court of Missouri, En Banc

April 4, 2017

STATE ex rel. WILLIAM FLEMING, Relator,
v.
THE MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.

          ORIGINAL PROCEEDING IN HABEAS CORPUS

          Patricia Breckenridge, chief justice

         William Fleming's probation was revoked and execution of his concurrent seven-year prison sentences was ordered after he failed to pay his court costs within the first three years of his probation. Mr. Fleming subsequently filed a petition for a writ of habeas corpus alleging that his liberties were being unlawfully restrained because the sentencing court violated his due process and equal protection rights by revoking his probation solely because he was indigent.

         This Court finds that the sentencing court improperly revoked Mr. Fleming's probation because it failed to inquire into the reasons for Mr. Fleming's failure to pay his court costs. Despite Mr. Fleming raising the issue of his inability to pay and several reports from his probation officer stating that Mr. Fleming was struggling financially, the sentencing court did not question Mr. Fleming as to his ability to pay prior to revoking his probation. Instead, the sentencing court relied on the fact that Mr. Fleming admitted he violated a condition of his probation by failing to pay his court costs within the first three years of his probation. Mr. Fleming's admission, however, was only that he did not make his payments as ordered. It does not establish that he had the ability to pay but willfully refused to do so or that he failed to make bona fide efforts to acquire the resources to pay his court costs.

         Because there was no inquiry into, or findings regarding, the reasons Mr. Fleming failed to pay his court costs, the sentencing court's revocation of Mr. Fleming's probation solely for failure to pay outstanding court costs violated his Fourteenth Amendment rights. It follows that Mr. Fleming's probation was improperly revoked and he is entitled to be discharged from his sentence of imprisonment and subsequent parole and restored to his status as a probationer.

         Under normal circumstances, Mr. Fleming's probationary term would continue upon his restoration to probationary status. In this case, however, Mr. Fleming's probation term has expired. Therefore, the only options for the sentencing court are either to discharge Mr. Fleming or to reinitiate revocation proceedings.

         The evidence before the sentencing court was sufficient to establish, as a matter of law, that (1) Mr. Fleming was indigent such that he could not pay his court costs despite bona fide efforts to do so and (2) the state's interests in punishment and deterrence were otherwise satisfied by the conditions Mr. Fleming already completed and by his time served following the improper revocation of his probation. Nevertheless, because the sentencing court expressly limited the probation revocation hearing by stating the hearing was solely for purposes of disposition, the state may not have had the opportunity to present other evidence on this issue. If such additional evidence exists, the state or the sentencing court has 60 days from the date the mandate issues in this case to reinitiate revocation proceedings against Mr. Fleming. If the state or the sentencing court does not so elect, Mr. Fleming must be discharged from probation.

         Factual and Procedural Background

         On July 31, 2008, Mr. Fleming pleaded guilty to two counts of domestic assault in the second degree, section 565.073.[1] The court sentenced him to seven years in prison on each count and ordered the sentences to be served concurrently. The sentencing court suspended execution of Mr. Fleming's sentences and placed him on probation for a term of five years. The sentencing court imposed several special conditions on Mr. Fleming's probation, including the completion of a domestic abuse or anger management program and the completion of a mental health program. The sentencing court also ordered Mr. Fleming to pay his "court costs" and $92 to the crime victims' compensation fund[2]within the first three years of his probation.[3] In addition to the judgment in favor of the crime victims' compensation fund, the ledger of "court costs" assessed showed costs and fees of $301.50 and a board bill of $3, 870. Mr. Fleming, therefore, was ordered to pay a total of $4, 263.50 within the first three years of his probation.[4] His probation term was set to expire July 30, 2013.

         While on probation, Mr. Fleming was unemployed. A case summary report dated May 19, 2009, states that Mr. Fleming was receiving treatment for "mental health issues" and that, as of April 2009, Mr. Fleming was approved for Supplemental Security Income (SSI) payments of $449.34 per month. He agreed to pay $118 a month, and extra when he received a balance of $1, 500 from SSI, toward his court costs. The report also states that Mr. Fleming was completing anger management classes because he was financially unable to attend domestic assault classes, which cost $40 per week for 27 weeks. The report further indicated Mr. Fleming was living with his girlfriend, who had physical limitations and was not able to work, but who helped him monitor his probation appointments and requirements.

         In August 2009, Mr. Fleming's probation officer issued a notice of citation after Mr. Fleming failed to make his scheduled payments. The notice states that Mr. Fleming had not paid the $118 a month as agreed and that, as of May 2009, Mr. Fleming still owed $4, 145.50 in court costs. In a subsequent case summary report, Mr. Fleming's probation officer noted that Mr. Fleming continued "to have financial difficulties" but was paying $10 a month. The probation officer also noted that Mr. Fleming's efforts to obtain housing assistance had been unsuccessful, but that Mr. Fleming had been accepted into a program at a Vocational Rehabilitation Center to sponsor his going back to school.

         On August 2, 2011, Mr. Fleming's probation officer filed a violation report after Mr. Fleming failed to pay his court costs within the first three years of his probation. The report notes that Mr. Fleming was "unemployed and receiving mental health treatment until he was granted disability in April 2009" and that Mr. Fleming made $10 payments "with a few missed payments" due to his financial struggles. The report requested court action to address Mr. Fleming's inability to pay the court costs and discussed the possibility of making alternative arrangements, such as community service, to count as credit toward his court costs. The report also noted that the plan was for Mr. Fleming "to continue to pay $10 per month toward Court costs, until further notice."

         On September 9, 2011, the sentencing court held a probation revocation hearing. At the hearing, Mr. Fleming admitted to violating the condition of his probation that required him to pay his court costs within three years. The sentencing court found Mr. Fleming had violated his probation but deferred disposition of the matter. It then ordered Mr. Fleming to make minimum payments of $50 per month and continued the hearing until December, by which time Mr. Fleming was required to pay a minimum of $150. Mr. Fleming timely paid the $150. A case summary report, dated November 3, 2011, states the amount of Mr. Fleming's SSI was then $674.

         The court continued or rescheduled the probation violation hearing until April 12, 2013, when a hearing was held. At the time of the hearing, Mr. Fleming had paid more than $1, 100 but still owed more than $3, 000 in court costs. Mr. Fleming requested that his probation not be revoked because he could not afford to pay the remaining court costs. He asserted he was indigent, as evidenced by the fact that he qualified for a public defender and that his only source of income was his SSI disability payments. Mr. Fleming further asserted that he had complied with all other conditions of his probation and that the $1, 100 he had paid in court costs showed he was making a good faith effort to pay. The state argued that Mr. Fleming had the ability to pay his court costs because, when threatened with revocation, he would pay lump sums of more than $100 within a short period of time. The state further argued that Mr. Fleming should have raised his inability to pay prior to his admission at the 2011 revocation hearing.

         After hearing argument from both parties, the sentencing court revoked Mr. Fleming's probation and ordered execution of his concurrent seven-year sentences. In revoking Mr. Fleming's probation, the sentencing court stated that the purpose of the hearing was solely for purposes of disposition because Mr. Fleming had already admitted to violating his probation. The sentencing court acknowledged that people should not "be sent to prison because they can't pay their court costs" but stated that just because someone is represented by a public defender does not mean he or she should be relieved of paying court costs. The sentencing court concluded that Mr. Fleming failed to comply with the probation order despite the court's willingness to work with him; therefore, its only option was to revoke his probation. The sentencing court made no inquiry or findings at the hearing as to whether Mr. Fleming had the ability to pay, and, if so, whether he willfully refused to do so or whether he failed to make bona fide efforts to acquire the resources to pay his court costs.

          On June 20, 2016, Mr. Fleming sought a writ of habeas corpus from this Court[5]alleging that he was being unlawfully confined because his probation was revoked solely because he could not pay his court costs, thereby violating his due process rights. At the time he filed his writ petition, Mr. Fleming was incarcerated at Algoa Correctional Center. Subsequently, Mr. Fleming was released on parole and filed an amended writ petition against the Board of Probation and Parole. In his amended petition, Mr. Fleming asserts that, although on parole, his liberties are still unlawfully restrained as a result of his probation being improperly revoked. This Court issued a writ of habeas corpus.

         Habeas Standard

         This Court has the authority to "issue and determine original remedial writs, " including writs of habeas corpus. Mo. Const. art. V, sec. 4. "Every person committed, detained, confined or restrained of his liberty, within this state, for any criminal or supposed criminal matter, or under any pretense whatsoever . . . may prosecute a writ of habeas corpus . . . to inquire into the cause of such confinement or restraint."[6] Section 532.010. "[A] writ of habeas corpus may be issued when a person is restrained of his or her liberty in violation of the constitution or laws of the state or federal government." State ex rel. Amrine v. Roper, 102 S.W.3d 541, 545 (Mo. banc 2003). "[H]abeas corpus proceedings are limited to determining the facial validity of confinement" and are "properly invoked to challenge an improper probation revocation." State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002). The petitioner bears the burden of establishing that he or she is entitled to habeas relief. Id.

         Mr. Fleming's Probation Was Improperly Revoked

         Mr. Fleming asserts he is entitled to be discharges from parole because the sentencing court violated his due process and equal protection rights by revoking his probation solely because he was indigent. Mr. Fleming relies on Bearden v. Georgia, 461 U.S. 660 (1983), for the proposition that probation cannot be revoked due to a probationer's inability to pay outstanding fines or court costs.

         In Bearden, a court revoked the defendant's probation because he failed to pay a fine and restitution. Id. at 663. The defendant asserted that imprisoning him solely because of his inability to pay violated the Fourteenth Amendment. Id. The United States Supreme Court reasoned:

The decision to place the defendant on probation . . . reflects a determination by the sentencing court that the State's penological interests do not require imprisonment. A probationer's failure to make reasonable efforts to repay his debt to society may indicate that this original determination needs reevaluation, and imprisonment may now be required to satisfy the State's interests. But a probationer who has made sufficient bona fide efforts to pay his fine and restitution, and who has complied with the other conditions of probation, has demonstrated a willingness to pay his debt to society and an ability to conform his conduct to social norms.

Id. at 670 (internal citation omitted). The Supreme Court concluded that, "in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay." Id. at 672. The Supreme Court further instructed:

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.

Id. at 672-73. The Supreme Court then remanded the case for a determination as to whether the defendant made a bona fide effort to pay his fine and restitution. Id. at 674. The Supreme Court stated that, without such a determination, fundamental fairness required that the defendant remain on probation. Id.

         Like in Bearden, the sentencing court revoked Mr. Fleming's probation without determining why he failed to pay his court costs. At the 2013 revocation hearing, the sentencing court made no inquiry as to whether Mr. Fleming had the ability to pay but willfully refused or failed to make bona fide efforts to acquire the resources to pay his remaining court costs; nor did the court consider alternative measures of punishment other than imprisonment. Instead, it focused on the fact that Mr. Fleming had previously admitted to violating his probation. Despite argument from Mr. Fleming that he could not pay because he was indigent, the sentencing court failed to comply with the directives in Bearden that, prior to revocation, a court must inquire as to the reasons for failure to pay outstanding court costs and, if the failure to pay was not willful, must consider whether the probation conditions already completed or other alternative measures of punishment besides imprisonment adequately satisfy the state's interests in punishment and deterrence.

         The state attempts to excuse the sentencing court's failure to inquire by asserting that it is implicit in Mr. Fleming's admission that he could, in fact, make payments but had not made bona fide efforts to do so. Mr. Fleming, however, ...


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