MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2016 ME 70 Docket: Ken

- 15

- 266 Argued : March 2, 2016 Decided: May 10, 2016 Panel: SAUFLEY, C.J., and ALEXANDER , MEAD, GORMAN , and HUMPHREY , JJ.

STATE OF MAINE

v. DAVID BRADLEY
HUMPHREY, J. [¶1] David Bradley appeals the restitution portion of his sentence arising from his conviction for submitting hundred s of fraudulent claims to MaineCare

. He contends (1) that the court erred in finding that he was not incapable of paying the ordered res titution , and (2) that the court’s decision to order $20,000 in restitution was so arbitrary that it violated his right to due process of law

. Discerning no error or due process violation , we affirm.
I. BACKGROUND [¶2 ] David Bradley was charged with one count of theft by deception (Class B), 17

- A M.R.S. § 354(1)(B)(1) (2015) on June 12, 2013, and pleaded guilty on April 21, 2015

. The State alleged, and the court (Kennebec County, Mullen, J. ) found there was sufficient evidence to support, that Bradley h ad2 submitted hundreds of fraudulent claims to MaineCar e, totaling at least $40,217.56

. [¶3 ] The following undisputed facts are drawn from the sentenc ing memoranda and accompanying exhibits submitted to the sentencing court. Bradley was a practicing, lic ensed psychologist who also ran a bed and breakfast in Maine. In 2008, the bed and breakfast was foreclosed upon, and in 2011, Bradley lost his license to practice psychology following a series of complaints lodged against him based on multiple ethical and professional violat ions. Between September 2010 and June 2011, during periods when he was spending significant time in Florida or was in jail in Maine for other unrelated criminal convictions, Bradley submitted the fraudulent claims to MaineCare. [¶4 ] In his sentencing memorandum , Bradley asserted that he had $890 in monthly income

— from Social Se curity and the Florida food assistance program

— and $885 in monthly expenses for rent, cell phone, medications, food, sundries, and “gas money paid to others.” The State requested a stand

- alone order and a probation condition that Bradley pay restitution to MaineCare in the amount of $40,217.56. Bradley requested that the court order restitution in the amount of $1,563. [¶5 ] At the conclusion of the sentenci ng hearing, taking into account the sentencing memoranda and the arguments of counsel, the court stated, “I think it’s3 a fair question to ask . . . what’s the likelihood, or who is going to hire a
64

- year - old convicted felon with the felony being for theft ?” The court also noted its concern about ordering a level of restitution that would be unreal istic and thus “promise . . . justice that we cannot deliver.” However, the court found that Bradley has no overwhelming health problems that barred him, necess arily, from obtaining employment, certainly, not in the field of healthcare, as far as I could determine in the future or predict. But I think there are service industries, jobs that people find with felony convictions

— convictions in the plural, not just one. And I find that he has a reduced capacity, but not a total inability, to make restitution. The court sentenced Bradley to four years ’ imprisonment, with all but nine months suspended, and three years of probation and ordered him to pay $20,000 in

re stitution to MaineCare, also making payment a condition of his probation. 1 [¶6 ] On May 8, 2015, Bradley filed a timely notice of direct appeal, pursuant to 15 M.R.S. § 2115 (2015) and M.R. App. P. 2, and applied to us for leave to appeal the sentence, pu rsuant to 15 M.R.S. § 2151 (2015) and
M.R. App. P. 20. The Sentence Review Panel granted his applicatio n on August 3, 2015, and ordered that the sentence appeal be considered together with his direct appeal , pursuant to M.R. App. P. 20

.

1 The court left the time and method of payment to be determined by the Department of Corrections so that the Department could set a payment schedule in accordance with Bradley’ s circumstances in the future. S ee 17

- A M.R.S. § 1326

- A (2015)

.4 II. DISCUSSION [¶ 7 ] Bradley’s argument that the sentencing court erroneously found that he was not incapable of paying $20,000 in restitution is an argument regarding the propriety of the sentence that may only be raised through a discretionary sentenc e appeal. See State v. Davenport , 2016 ME 69 , ¶¶ 8

- 9, 13 , --- A.3d

--- . In contrast, Bradley’s argument that the restitution portion of his sentence violated due proces s is a challenge to his sentence based on a purported illegal ity appearing plainly in the record , and may be raised on direct appeal. See State v. Ricker , 2001 ME 76, ¶¶ 18

- 19, 770 A.2d 1021. Because Bradley filed a timely notice of direct appeal and was also granted leave to appeal his sentence, the distinction has no practical significance in this case; ho wever, we (A) consider Bradley’s argument about the propriety of the restitution portion of his sentence in the context of his discretionary sentenc e appeal and (B) consider his argument that the restitution order violated due process in the context of his direct appeal.
A. Discretionary Appeal

— P ropriety of the Sentence [¶8 ] Bradley ’s primary contention on appeal is that the court ’s order of $20,000 in restitution was improper because he had established his incapacity to pay this level of re stitution as a matter of law. S ee 17

- A M.R.S. § 1325 (2015)

. The Legislature has authorized courts to order restitution to compensate victims for economic loss while helping to rehabilitate the offenders. See 17

- A M.R.S.5 § 1321 (2015) . When calculating restitution, a court must consider, inter alia, “[ t ]he present and future financial capacity of the offender to pay restitution.”
17

- A M.R.S. § 1325(1)(C) . The court is not required to make an express finding that the defendant is able to pay restitution. See State v. Berube , 1997 ME 165, ¶¶ 18

- 19, 698 A.2d 509. However, restitution is not authorized when it “creates an excessive financial hardship on the offender.” 17

- A M.R.S. § 1325(2)(D) . In determining whether restitution will create an excessive hardship, a c ourt must consider, inter alia, “[ t ]he minimum living expenses of the offender” and “[t]he offender’s present income and potential future earning capacity.” Id. § 1325(2)(D)(2), (2)(D) (4)

. [¶9 ] The defendant “has the burden of proving the incapacity [t o pay restitution] by a preponderance of the evidence.” Id. § 1325(4) . “[U]nless a court has evidence before it sufficient to support a finding that a restitution order would create an excessive financial hardship . . . it is authorized to impose restitu tion, in whole or in part, as compensation for economic loss.” Berube , 1997 ME 165, ¶ 19, 698 A.2d 509. On appeal, the defendant “has the burden of demonstrating that the incapacity was proven as a matter of law.” 17

- A M.R.S. § 1325(4)

. [¶1 0 ] As the party with the burden of proof , Bradley is required to show that “the record compels a contrary conclusion.” Davenport , 2016 ME 69 , ¶ 13 , --- A.3d

--- (quotation marks omitted)

. Thus, we review the record before the6 sentencing court to determine if it co mpels the conclusion that Bradley is incapable of paying restitution because the restitution poses an excessive financial hardship.
See id. ; s ee also State v. Nelson , 2010 ME 40, ¶ 18, 994 A.2d 808 (“The court heard evidence that Nelson was forty

- two year s old, had previously owned and operated a successful business involving a number of transferable skills, and that he s uffered from no disability.

. . . Under these facts, the court did not err as a matter of law in finding that restitution would not cause an excessive financial hardship . . . .”); State v. Peck , 2014 ME 74, ¶ 17, 93 A.3d 256 (“The court’s restitution order . . . is both reasonable and supported by the record.”). [¶1 1 ] The record before the sentencing court in this case does not compel the conclusion that paying $20,000 in restitution would impose an excessive financial hardship on Bradley. The court’s judgment was based on its findings that Bradley has “no overwhelming health problems” barring him from employment and that there are severa l fields of employment open to Bradley even with his felony conviction. Bradley did not pr esent evidence regarding any physical condition that would impair his ability to work at the time of the sentencing or in the future. Nor did he present any evidenc e that his job skills from practicing as a psychologist or running a bed and breakfast would not be transferable to other fields. Similar to defendants in previous cases, Bradley is essentially able

- bodied7 and has a prior history of employment with po tent ially transferable skills

. 2 See Nelson , 2010 ME 40, ¶ 18, 994 A.2d 808; State v. Pease , 2007 ME 155, ¶ 10,
940 A.2d 189

. [¶1 2 ] Bradley posits that he will have trouble gaining employment because of his felony conviction, but we have never recognized a fe lony conviction as per se evidence of a lack of future employability. Indeed, as the State points out, “[i]f all convicted felons were deemed unemployable, most of them would not b e required to pay restitution

— a result not indicated by the statutory provi sions for the imposition of restitution.” For these reasons, we conclude that the sentencing court did not err in finding that Bradley was not incapable of paying $20,000 in
restitution.
B. Direct Appeal

— Due Process [¶1 3 ] Bradley also argues that the co urt’s decision to order $20,000 in restitution was arbitrary and therefore vio lated his right to due process. We review

2 Bradley’s reliance on State v. Johnson , 667 A.2d 110 (Me. 1995), is misplaced. In Johnson , we vacated a restituti on order where “the record show[ed] that all of Johnson’s income [was] req uired for

. . . basic necessities” and “[n]either Johnson’s current income nor her realistic earning potential [left] any room for the pa yment of restitution.” Id. at 111. Bradley argues that he is like Johnson because he asserts that almost all of his i ncome goes to his basic expenses, and because the court could not have determined that he could “realistically” gain future employment. Johnson , however, was d ecided at a time before the Legislature placed on defendants the burden to prove an inability, o r incapacity, to pay restitution. Se e P.L. 1997, ch. 413, § 3 (effective Sept. 19, 1997) (codified at 17

- A M.R.S. § 1325(4)) ; see also State v. Davenport , 2016 ME 69, ¶¶ 10

- 11,

--- A.3d

--- . In addition, in Johnson , we determined from the record that the sentencing court had impermissibly imposed symbolic restitution by ordering the defendant to pay an amount that the court expected she would not be able to pay

. See Johnson , 667 A.2d at 111. By contrast, in this case, the sentencing court found that the re was no bar to Bradley being able to pay the restitution it ordered

.8 the constitutionality of a sentence de novo. State v. Bennett , 2015 ME 46, ¶ 14, 114 A.3d 994. The record clearly demonstrates that t he court’s decision was not arbitrary. The court (1) considered the statutory factors, see 17

- A M.R.S. § 1325(1) , and many of the specific circumstances that Bradley advanced in his sentencing memorandum ; (2) allowed Bradley to apply his bail towards the restitution in light of his di minished capacity to pay ; and (3) provided that the Department of Corrections would determine the exact time and method of payment in order to best reflect Bradley’s circumstanc es now and in the future

. Furthermore, the court halved the amount of restitution sought by the State in light of Bradley’s diminished earning capacity , a reasonable approach that we recently approved

. See Peck , 2014 ME 74, ¶ 17, 93 A.3d 256 (“In ordering Peck to pay restitution, the court properly rec ognized Peck’s financial limitations and more than halved the State’s requested amount of $36,800 to $18,000.”); see also
17

- A M.R.S. § 1325(1) (providing that restitution may be authorized as compensation for economic loss “in whole or in part”). For the se reasons, the court’s decision was not arbitrary, and we affirm. The entry is: Judgment affirmed.9

On the briefs: Scott F. Hess, Esq., The Law Office of Scott F. Hess, LLC, Augusta, for appellant David Bradley Janet T. Mills, Attorney Genera l, and Valerie A. Wright, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine
At oral argument: Scott F. Hess, Esq., for appellant David Bradley Valerie A. Wright, Asst. Atty. Gen., for appellee State of Maine

Kenn ebec County Superior Court docket number CR

- 2013

- 521 F OR C LERK R EFERENCE O NLY