Opinion
No. COA11-19
Filed 5 July 2011 This case not for publication
Appeal by defendant from judgment entered 2 August 2010 by Judge Zoro Guice, Jr. in Watauga County Superior Court. Heard in the Court of Appeals 9 June 2011.
Attorney General Roy Cooper, by Assistant Attorney General Joel L. Johnson, for the State. Marie H. Mobley, for defendant-appellant.
Watauga County No. 08 CRS 51488.
Where there was evidence presented at the sentencing hearing supporting the amount of restitution ordered by the trial court, this portion of the judgment is affirmed. Where there was no evidence presented to the court that defendant had the ability to comply with the order of restitution and where the trial court ordered a longer period of probation than the presumptive period, without making the statutorily required findings, this matter is remanded for a new sentencing hearing.
I. Factual and Procedural Background
Nancy Carol Yates ("defendant") and Jimmy Dean Winebarger ("Winebarger") lived together from 1999 until 1 June 2008, and have a child. In 2006, Winebarger purchased a used 1992 Subaru for $600. The vehicle was made operable when defendant purchased and installed a radiator. At the time of the ensuing events, the car had a new set of tires, worth about $600.
Winebarger and defendant broke up in 2008 and she left with the Subaru and the parties' daughter. Winebarger obtained a warrant that charged defendant with the misdemeanor of unauthorized use of a motor vehicle. When the vehicle was returned to Winebarger, the radiator was missing, the oil dipstick was cut, and the engine had been filled with BB's. The car was inoperable.
On 2 August 2010, a jury found defendant guilty as charged. Defendant was sentenced to forty-five days incarceration in the common jail of Watauga County. This sentence was suspended, and defendant was placed on supervised probation for thirty-six months. As a condition of probation, defendant was ordered to pay $2,500 restitution to Winebarger. Defendant appeals.
II. Amount of Restitution
In her first argument, defendant contends that the trial court erred by ordering her to pay $2,500 in restitution. We disagree.
A. Standard of Review
Whether a trial court's award of restitution is supported by competent evidence presented at trial or sentencing is reviewed by an appellate court de novo. State v. Wilson, 340 N.C. 720, 726-27, 459 S.E.2d 192, 196 (1995).
B. Analysis
A trial court may award restitution as a condition of probation, but the amount must be supported by competent evidence in the record. N.C. Gen. Stat. § 15A-1343(d) (2008); State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986). In awarding restitution, "the court shall take into consideration the factors set out in G.S. 15A-1340.35 and G.S. 15A-1340.36." N.C. Gen. Stat. § 15A-1343(d). "In the case of an offense resulting in the damage, loss, or destruction of property of a victim of the offense[,]" where "return of the property . . . is inadequate," the court must consider "[t]he value of the property on the date of the damage, loss, or destruction. . . ." N.C. Gen. Stat. § 15A-1340.35(a)(2) (2008). The award does not have to be supported by specific findings but when there is some evidence that the amount awarded is appropriate, it will not be overruled on appeal. State v. Davis, 167 N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005).
Pursuant to N.C. Gen. Stat. § 15A-1343(d), the trial court could have determined that the return of the car was inadequate due to its severely damaged condition. The State produced evidence that supports the ordered amount of restitution. Winebarger testified to the value of the car "on the date of the damage, loss, or destruction" by stating the price of two comparable vehicles that were for sale was $5,500 and $6,500. This constituted evidence as to the "value of the [car] on the date of the damage, loss, or destruction[.]" N.C. Gen. Stat. § 15A-1340.35. The fact that the trial court reduced the amount of restitution to $2,500 shows that the trial court did consider defendant's argument that based on the purchase price, the value of the car was substantially less than the amount asserted by Winebarger. There was at least "some evidence as to the appropriate amount of restitution, [and] the recommendation will not be overruled on appeal." Davis, 167 N.C. App. at 776, 607 S.E.2d at 10.
III. Ability to Pay
In her second argument, defendant contends the trial court erred by imposing restitution without considering her ability to pay the amount ordered. We agree.
N.C. Gen. Stat. § 15A-1343(d) requires the trial court to consider N.C. Gen. Stat. § 15A-1340.36 when ordering restitution be paid. N.C. Gen. Stat. § 15A-1340.36 states that the trial court must consider "the resources of the defendant . . ., defendant's ability to earn, the defendant's obligation to support dependents, and any other matters that pertain to the defendant's ability to make restitution[.]" N.C. Gen. Stat. § 15A-1340.36 (2008). However, the trial court is not required to make specific findings as to the defendant's ability or inability to pay. Id.
In considering the factors in N.C. Gen. Stat. § 15A-1340.36, the evidence did not show the defendant had the ability to pay the ordered restitution. The State contends that defendant has the responsibility of demonstrating her inability to pay, relying on State v. Riley, 167 N.C. App. 346, 349, 605 S.E.2d 212, 215 (2004).
In Riley, the Court found no error where the trial court ordered payment of restitution. In considering the factors in N.C. Gen. Stat. § 15A-1340.36, the trial court concluded that defendant was able to pay where the State presented evidence showing defendant was employed, her monthly earnings exceeded the monthly restitution amounts, and her husband was also employed. Riley, 167 N.C. App. at 349, 605 S.E.2d 212, 214 (2004). The State established defendant's ability to pay and because defendant presented no evidence to the contrary, there was no error.
This case is distinguishable from Riley. The State presented no evidence as to defendant's ability to pay. The only evidence pertaining to this question comes from the argument of defendant's counsel. This revealed that defendant was unemployed, supports four dependent children without receiving alimony or child support, acts as caretaker for her ill father, and has applied for Social Security disability. All these factors point to a conclusion that defendant is unable to pay the ordered restitution. The trial court erred in not considering these factors pursuant to N.C. Gen. Stat. 15A-1340.36. This case is remanded for resentencing.
IV. Duration of Probation
In defendant's final argument, she contends that the trial court erred by imposing a thirty-six month term of probation for a misdemeanor judgment without making the specific finding that a longer than the presumptive probationary period was necessary. The State concedes error, and we agree.
N.C. Gen. Stat. § 15A-1343.2(d) (2008) provides that unless the court makes specific findings that a longer or shorter probationary period is necessary, misdemeanants sentenced to community punishment should be placed on probation for no less than six and no more than eighteen months. Violation of a statutory mandate is automatically preserved for appeal and no objection at trial is necessary. State v. Love, 156 N.C. App. 309, 318, 576 S.E.2d 709, 714 (2003).
The trial court did not make specific findings required by the statute in order to impose a longer period of probation. While we recognize that the trial court was probably attempting to give defendant a longer time to pay restitution, this does not relieve the trial court of making the statutorily mandated findings to support a longer period of probation. This case must be remanded for resentencing.
AFFIRMED in part, REMANDED FOR RESENTENCING in part.
Judges CALABRIA and ELMORE concur.
Report Per Rule 30(e).