STATE ex rel. WILLIAM FLEMING, Relator,
THE MISSOURI BOARD OF PROBATION AND PAROLE, Respondent.
ORIGINAL PROCEEDING IN HABEAS CORPUS
Patricia Breckenridge, chief justice
Fleming's probation was revoked and execution of his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.
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.
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
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
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.
and Procedural Background
31, 2008, Mr. Fleming pleaded guilty to two counts of
domestic assault in the second degree, section
565.073. 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 fundwithin the first three years of his
probation. 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. His probation term was set to expire July
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.
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.
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."
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.
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.
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.
June 20, 2016, Mr. Fleming sought a writ of habeas corpus
from this Courtalleging 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
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." 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.
Fleming's Probation Was Improperly Revoked
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.
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
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
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.
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.
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,