This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.
Facts
The Defendant attempted to publish and circulate a yellow page directory in Bernalillo County. He was charged with multiple offenses, including misappropriation of funds, providing false information, tax evasion, passing forged checks, and writing checks on insufficient funds. The Defendant entered a plea agreement, pleading guilty to nine counts of attempting to evade gross receipts tax in exchange for the dismissal of other charges and a sentencing cap of nine years. The agreement also required the Defendant to make restitution before sentencing (paras 2-3).
Procedural History
- District Court, June 7, 1988: The Defendant entered a plea agreement, pleading guilty to nine counts of tax evasion. Sentencing was postponed to allow the Defendant to make restitution (para 3).
Parties' Submissions
- Defendant-Appellant: Argued that the trial court erred by failing to grant probation due to his indigency and inability to pay restitution. He claimed that his incarceration violated due process as it was based solely on his lack of funds (para 5).
- Plaintiff-Appellee: Contended that the Defendant failed to make a bona fide effort to pay restitution and that incarceration was appropriate under the circumstances (paras 4-5).
Legal Issues
- Did the trial court err in sentencing the Defendant to incarceration instead of granting probation due to his indigency?
- Was the Defendant denied due process in the sentencing process?
Disposition
- The Court of Appeals affirmed the trial court's decision to sentence the Defendant to nine years of incarceration (para 21).
Reasons
Per Bivins CJ (Apodaca and Chavez JJ. concurring):
The Court held that the trial court did not err in sentencing the Defendant to incarceration. It found that the Defendant failed to demonstrate a bona fide effort to make restitution, as required under the principles established in Bearden v. Georgia and State v. Parsons. The trial court had provided the Defendant with multiple opportunities to explain his efforts to secure restitution, but he failed to present sufficient evidence to excuse his inability to pay (paras 6-7, 18-19).
The Court distinguished this case from probation revocation and pre-prosecution diversion cases, emphasizing that the Defendant's liberty interest during the presentencing period was limited and conditional. The trial court's decision to incarcerate was based on the Defendant's failure to meet the conditions of the plea agreement and the absence of any determination that probation would serve the state's penological interests (paras 9-15).
The Court also rejected the Defendant's argument that the trial court could not evaluate his efforts due to the lack of specific restitution conditions, noting that the Defendant's failure to make any restitution rendered this argument moot (para 20). The Court concluded that the Defendant was afforded due process, as he was given an opportunity to be heard and explain his efforts to make restitution (paras 16-19).