On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Dreier and Baime. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals from the revocation of his probation and his resentencing to a 10-year term of imprisonment with a two-year parole disqualifier. Defendant was convicted on a retraxit plea of guilty to an amended count of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), in return for which the State dismissed another count of aggravated assault, and two counts of aggravated assault with a deadly weapon, and agreed to make no sentencing recommendations. At the plea hearing, Judge E. Stevenson Fluharty, informed defendant that his guilty plea subjected him to a maximum sentence of ten years with a five-year period of parole ineligibility and/or a $100,000 fine. He further explained to defendant that he could be placed on probation for five years and ordered to pay restitution to the victim. The victim had suffered a fractured left zygomatic arch (a facial bone close to the jaw) and incurred $2400 in uninsured medical expenses. The judge also warned defendant specifically that if he should receive probation along with a restitution obligation, and if he failed to make that restitution, defendant could be resentenced to a 10-year term with a five-year period of parole ineligibility.
Defendant told the Probation Department on April 13, 1983 that he was a full-time laborer earning approximately $150.00 per week and that he had been employed there "from August of 1980 until the present." At the sentencing proceeding
defendant also advised the court that he was employed and capable of making restitution. The court noted that, based on defendant's prior record, the presumptive term of incarceration was certainly appropriate for defendant. However, the court was concerned with the fact that if defendant was incarcerated, the victim would not be recompensed for his uninsured medical bills. Therefore, based on the "best interests to the victim," the presentence report, the nature of the crime and "the fact that the defendant is employed," the court sentenced defendant on May 13, 1983 to a five-year period of probation subject to drug evaluation and treatment if necessary, restitution of $2399.01 payable in $50.00 per month installments, and a Violent Crimes Compensation Board Penalty of $25.00. Defendant was also instructed that if he
fails to make restitution or in any way violates the terms and conditions of probation, he may be resentenced for [a] custodial term as may be appropriate under the circumstances.
In a petition dated September 28, 1984, the Probation Department requested the Court to revoke defendant's probation and to incarcerate him because he was $675.00 in arrears, having paid only $125.00 of his restitution. At a probation violation hearing held before Judge Fluharty on November 16, 1984, defendant testified that he has been chronically unemployed and that he had only told the court that he was gainfully employed so that the judge would accept the plea agreement. Since his release he collected $119.00 per month for five months in public assistance; when he was collecting welfare he was paying $95.00 per month in rent to his girlfriend, and he drives, smokes and gambles on the weekends. The judge found that defendant "has willfully and notoriously violated the Order of the Court." The judge then sentenced defendant on November 30, 1984 to a ten-year custodial term with a two-year parole ineligibility period.
Defendant contends on appeal that by revoking defendant's probation for his failure to pay restitution, the trial judge violated the Fourteenth Amendment and abused his discretion.
Defendant argues that his probation was revoked and a term of incarceration was imposed solely because he lacked the funds to pay restitution, a practice that defendant alleges is prohibited by the United States Constitution. The Fourteenth Amendment precludes a state court from automatically revoking probation and imposing a prison term for nonpayment of restitution. In Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 2072, 76 L. Ed. 2d 221, 233 (1983), the Supreme Court held that in probation revocation proceedings for failure to pay restitution, the sentencing court must determine if defendant "willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay." If the court makes this determination, then it may revoke defendant's probation, and defendant may be resentenced to a term within the court's sentencing authority. Ibid. If defendant cannot pay his restitution despite bona fide efforts, then the sentencing court must consider whether punishment other than incarceration would adequately meet the State's interests in punishment and deterrence. Ibid. Only if the court determines that there is no appropriate alternative to incarceration may a defendant who has made bona fide efforts to pay be imprisoned for a failure to pay his restitution. Ibid; See also United States v. Palma, 760 F.2d 475, 478-479 (3d Cir.1985).
The New Jersey Code of Criminal Justice embodies the Supreme Court's requirement that there must be evidence and findings that defendant was responsible for the failure to make restitution. N.J.S.A. 2C:45-3a(4) states that
[n]o revocation of suspension or probation shall be based on failure to pay a fine or make restitution, ...