Supreme Cou rt No. 20 21

- 47

- C.A. ( N2 / 10

- 173A )

State :

v. : Geoffrey A. R e gan . :

NOTICE : This opinion is subject to formal revision before publication i n the Rhode Island Reporter. Reader s are request ed to not ify the O pinion Analy s t, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Teleph one (401) 222

- 3258 or Email: o pinionanalyst@courts.ri.gov , of any typo graphica l or othe r f ormal errors in or d er that corrections may be made before the opinion is published. May 2, 2022- 1

- Supreme Cou rt No. 20 21

- 47

- C.A. ( N2 / 10

- 173A )

State :

v. : Geoffrey A. R e gan . :

P res ent: Suttell, C.J., Goldb e rg , R obinson , Lynch P r ata , and Long, JJ. O P I N I O N
Ju st i ce Goldberg , for the Court . This case came before the Supreme
Court on March 1 , 2022 , 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 de fenda nt, Geoffrey A. R egan (defendant or R e g an), appeals from a Supe rior
Court decision and order declaring him to be in violation of his probation

. 1 For the reasons stated herein, we vacate the order of the Superior Court.
Facts and Travel In January 2011, a judgment of conviction enter e d follo win g de f endant ’ s ple a of nolo contendere to the charge of unlawful a ppropriation in an amount
grea ter tha n $1,000 , in violation of G.L. 1956 § 11

- 41

- 11.1

. H e was sentence d to

1 The defendant, who is a disbarred lawyer , appeared pro se .- 2

-

ten years at the Ad ult Correctional Institutions , with one year to serve at the ACI , one year to serve on home confinement, and ei ght yea r s suspended, with probation

. 2 The def

e ndant also was required to perform 250 hou rs of community service and , re levant to this appeal , to pay restitution in the amount of $520,295.46

. No hearing was h eld to dete rmine defendant ’ s abili t y to satisfy this obligation

. In June 20 17, Regan signed a periodic payment plan in the Superior
Court , provid ing that he was to make monthly payments of $2 00 toward his resti t ution obligation ( the payment plan)

. There was no disput e that Regan has been i n full compliance with th e p ayment plan

. Nonetheless , o n September 10, 2018 , i n anticipation of Regan ’ s failure “ to
pay restitution in full prior to expirat ion of sentence [ , ] ” the state filed a notice pursuant t o Rule 32 (f) of the S uperior Court R ules o f Criminal Procedure alleg ing
that Re gan faile d to comply with his res titution condition and was , therefore, in violation of his probation

. In support of the notice of vio lation , the state p ointed to the criminal case dock et , which stat ed, “ Restitution * * * $5 2 0,295.46,
0 1/10/2011

- 12 /15/2018 , Clos ed 12/15/20 18 [ , ] ” and the state contended that it was this notation that mandated Regan to pay restitution in full by December 15, 2018

.

2 On May 4, 2010, defendant filed a request to enter a plea , and on December 16 , 2010, the Superi or Cou rt held a se ntencing heari ng ; the sentence was executed, and the judgm ent of convic tion entered on Janu ar y 10, 2011.- 3

-

T wo years later , on December 7 , 2020, the Superior Court conducted a

v iolation h earin g . The tr ial justice , recognizing that Rega n ’ s “ sentenc e [was]

c oming up to expire[,] ” de termined th at , if he was declared a pro bation violator for failure to pa y restitution, the Superior C ourt coul d then “ keep sentencing open on that violat ion past t he tim e that [his] probation would otherwise have exp ired

. ” Although th ere was no d ispute that Regan was in compliance with the court

ordered payment plan , the trial justice none theless declared Reg an to be a probat ion violat or . The trial j ustice r e asoned that Regan ’ s sentence obligated him

“ to pay restitution in the ti me period in w hich [he] w[as] sent enced * * * [and]
short of a miracle [,] ” he would be unable to pay the remaining $488,000 balance b ef ore the senten ce exp ired in Janu ary 2021

. T he tria l justi ce held that the court would continue to r eview the matter for s entencing on t he violation to ensure that Regan continue d to make payments, but that , at an y given point, the court could

“ remove t he suspended peri o d of t ime and order [him] to ser v e t hat amount of time at the ACI [.] ” (Citing State v. LaRo che , 883 A.2d 1151 (R .I. 2005 ).)
O n December 2 4 , 2020, an order entered declaring Regan a probation viol ator “ based on his failure to pay the f ull amo unt of the c ourt ordered restitution prior to t he expiration of his probationary period

. ” 3 Regan filed a timely appeal

.

3 The s entencing hearing on the finding of probation violation was initially scheduled for March 2021 , and then was rescheduled on several oc casions , while- 4

- Sta ndard of Revie w To establish a pro bation violation, the st at e must demonstr ate “ by a fair preponderance of t he evidence tha t the defendant breac hed a condition of the defend ant ’ s probatio n [.] ” Super. R. Crim. P. 32(f ). “ This C ourt will reverse a probation

- violation fin di ng only if the hearing justice acted arbitrari ly or caprici ously. ” LaRo che , 883 A.2 d at 1154

. Anal ys is
B efore this C ourt, defen dant argues that the trial justice erred in declaring
him a violato r an d delaying th e imposition of sentence in order to continue to review his payment progress , specifically when the judgment of conviction does not place a tim e limi t on payment of restitu tion

. Th e defendant ’ s argument comprise s two distinct i ssues : (1) wheth er failure to pay restitution in f ull by the expiration of Regan ’ s sentence amounted to a v iolation of the terms and conditions of his probation; and , if so, (2 ) wh ethe r the tr ial just ice had the authority to keep a prison “ se ntence han g ing over [ Regan ’ s ] head ” beyond t he time when his se ntence and probationary term had expired

. Because we conclude th at the decision of the trial ju stice declaring Regan in viola t ion of his pr obat ion was arbitrary and

ca pricious , we va cate the order of the Sup erior Court.

Regan w as required to continu e making payments

. The sen tencin g hear ing has not yet occurred.- 5

-

“It is well settled in this jurisdiction that a ppeals from interlocutor y orders are not permitted unless they fall within certain well

- d efined exceptions [,] ” St a t e v. Minior , 175 A.3d 12 0 2, 1206 (R.I. 20 18 ) (quoting Boranian v. Riche r , 983 A.2d 834, 837 (R.I. 2009 ) ) , save for “ such an element of finali ty that action is called for before the case is finally terminated in order to prevent clearly imminen t and
irre p arable har m . ” DeP ina v. St a te , 79 A.3d 1284 , 1288 (R.I. 2013 ) (quoting Town of Lincoln v. Cournoyer , 118 R. I. 644, 648 , 375 A.2d 410, 412

- 13 (1977 ) )

. Otherwise, “[i] nterlocutor y order s are reviewable only by way of wr it of certiorari

. ” Dale v. Dale , 37 A.3d 124 , 124 (R. I. 2012) ( m em.)

. M ore than a year a ft er declaring Regan a probation violator , the Superior
Court has n eit her sentenced Regan n or directed the entry of a final judgment

. Although the order declaring him a violator is interlocutory, and e l ements of
f inal ity are scant, the delib erate choice to keep the s ente nce “ hanging over [ Regan ’ s ] head ”

— w ith the possibility of p rison for a violation of a probation ary period that has long expi red

— h as prompted our review

.

“ The sole purpose of a probation

- revocation proceeding is for t he hearing justice to determine whether defendant failed to keep the peace and remain on good behavior, both o f whi ch are conditions o f probation

. ” State v. For bes , 925 A.2d 929, 934 (R.I. 2007 )

. One of the “ basic condition s of probation [,] ” acc ordi ng
to G.L. 1956 § 12

- 19

- 8 .1 , is for a defendant to “ [p] ay restitution * * * based on the- 6

-

defendant ’ s ability to pay [ .] ” S ection 12

- 19

- 8.1 (a)(8 ) ( e mphasis added )

. Consequently , i n order to constitute a probation violation with co n sequences for a breac h of this c ondition , the court must determine a defendant ’ s abilit y and efforts to pay restitution

—

that is, “ th e re asons for the non compliance

. ” LaRoche , 883 A.2d at 1 154

.

“ I f the probationer has made sincere efforts to legally a cq u ire the necessary

mon ey, but rema ins u nable to com ply with a restitution obligation, the n the court must consider alternate m easures of punishment other t han incarcera tion

. ” LaRoche , 883 A.2d at 1 154 (citing Bearden v. Georgia , 461 U.S. 660 , 672 (1983)).

“ On the other hand, if t he probat ioner has either refused to pay or has not made

‘ suffi c ient bona fide efforts ’ to acquire the r esources to pay , then th e sentencing

co urt may revoke probation and impose a prison sentence. ” Id. ( quoting Bearden , 461 U.S. a t 672 ). Nevertheles s, t here must first be a declaration th at a defendant

was noncomplian t with a payment obligation in order for a finding of probation violation to be valid. See § 12

- 19

- 8 .1 (d ); see also Super. R. Crim. P. 32(f). The running of time, s uch that payment

- in

- ful l is not achi evable, is not enough to call for a prison sentence. See Bearden , 461 U.S. at 672

- 73 ; see also LaRoche , 883 A.2d at 1 154

. In the case at bar , t he trial justi ce fou nd that resti tution was a condition of defendant ’ s pro b ation and that defendant wou ld be unab le to pay the bal ance in full- 7

-

before the e xpiratio n of his sentence

. Although there was no dispute that Regan was compliant with the court

- ordered payment plan , th e trial justi ce nonetheless
declared that failure t o pay restitution in full befor e hi s s ent ence expir ed was a violation , with out any fin dings with respect to Regan ’ s abili ty to pay or whether Regan ’ s failure to pay the full amo u nt of restitution was w illf ul , deliberate, or in defiance of his obligations

. Given that the trial jus tice d is regarded this standard , we are of the opinion that t his finding was arbitrary and capricio us. This Court has recognized that a r estitution payment obligation need not be
l inked to the duration of the underlying se nten ce . See State v. Traudt , 679 A.2d 330, 332 (R. I. 1996 ). C ourt

- ordered restitution ripen s into a civil judgment on behalf of the victim and is enforce able as such. See G.L. 1956 § 12

- 28

- 5.1

. This is a collater al consequence of a conviction or plea. Therea f ter, “[t] he state may
maintain a c ivil actio n to place a lien on the personal or real property of a defendant w ho is assessed restitution, as well as to seek wag e garnishment, and/or seek enforcement of civil judg ment entered in accordance with § 1 2

- 2 8

- 5

. 1 consistent with state and fed eral law

. ” Sec tion 12

- 19

- 34 (c)

. This is the responsibi lity of the state and does not implicate a p rison sentence hanging over

one ’ s head. See id

. As a result, u pon expiration of a defen dant ’ s p robation , the “ defendant

rema i n s civilly liable for the re stit u tion. ” Tra udt , 6 79 A.2d at 332

. I f a time pe riod- 8

-

for payment i s set forth in an order and payment is not made in accordance with the order , interest begins to accrue , with cost s and fe es, an d the judg ment becomes
enforce a ble in accordance with laws applicable to “ civi l ca ses generally. ” See § 12

- 28

- 5.1

. Accordingly, if a defendant is compliant with court

- ordered

res titution payments and simply runs out of time, the remedy does not include
inc arcerati on , ab sent a finding of willful violation. S ee State v. Price , 82 0 A. 2d 956, 969 (R.I. 2003 ) ( discuss ing civil contempt to coerce compliance with a court order ). I n this case, because Regan ’ s sentence has long exp ired, there are other statutory rem edies that th e stat e may pu rsue. See § 12

- 19

- 34

. U nde r the circu mstan c es o f thi s case, we touch on the folly that gave ri se to th is dispute

. Imposition of a restitution order in such an insurmounta ble amount in the absence of a hearing on the accused ’ s ab ility to pay ought to be a voided. The
court should pro ceed with caut i on b efore entering orders proposed by the state that

se ek unrealistic restituti on amounts as part of a criminal sentence. In addition, in this case, the judgment of conviction

— which is the controll ing do cument

— d oes
not plac e a timeline on payment of rest i tuti on . In the absence of a finding

co ncerning Regan ’ s ability to pay this amount , it is i rrational to conclude that Regan would face a lengthy period of incarceration simply because he cou ld no t satisf y $520,2 95.46 in monthly payments of $200

. Simply p ut, there were not enough months in his sentence to accomplish this goal.- 9

-

A lthough a probation violation may result in lifting the suspen ded portion of a sentence and imposition of im priso n ment , it is w e ll estab lished that a probation violation does not al low t he t rial justice t o extend probation or impo se a sentence after probation has expired

. See , e.g. , State v. T avares , 837 A.2d 730, 733 (R.I.
2003 ) ( “ T he purpose of having a time limitation on the le ngth o f the probation is to
assure t he defendant that onc e th e probation has expired, ‘ he will not have the threat of imprisonment for this offense hanging over his head for the rest of his life. ’ ” ) (quoting State v . San tos , 498 A.2d 1024 , 102 6 (R.I. 19 85) ).
I n th is case, after declaring that Regan was in vi o lat ion of his p robat ion , the trial justice continued the sentencing hearing on several occasions in order to k eep the s entence “ h anging over [his] head ” so that in the event R egan failed to comply wit h making payments , th e court could “ remove the s uspen ded perio d of time an d order [him] to serve that amount of time at the AC I [.] ” However, as of January 2021, Re gan ’ s probation had expired and there no longer existed a s entence to impose

. While Regan rema ins civi lly liable for his restitution obligatio n, h i s
sentence and th e Superior Court ’ s jurisdiction to oversee his probation for the offense fo r which he was convicted has concluded

. C onclusion
Base d on the f

oregoing, we vacate the order of t h e Su perior C ourt. The papers in t his case may be remanded to the Sup erior Court

.SU

- CMS

- 02 A (revised June 20 20 ) STATE OF RHODE ISLAND SUPREME COURT

– CLERK’S OFFICE L icht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET

Title of Case State v . Geoffrey A. Regan

.
Case Number No. 2021

- 47

- C

. A

. ( N2/10

- 173A) Date Opinion Filed May 2, 2022

Justi ces Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal N ewport County Superior Court

Judicial Officer from Lower Court Associate Justice Kristin E. Rod gers

Attorney(s) on Appeal For S tate: Brianne M. Chevalier Department of Attorney General For Defendant: Geoffrey A. Regan, Pro Se