Opinion
C. A. W2-2019-0096A
05-07-2024
STATE OF RHODE ISLAND v. DONNA MARLEY
For Plaintiff: John F. Perrotta, Esq. For Defendant: Connor P. Reardon, Esq.
For Plaintiff: John F. Perrotta, Esq.
For Defendant: Connor P. Reardon, Esq.
DECISION
MONTALBANO, J.
Before this Court is Donna Marley's (Ms. Marley) appeal of a Superior Court Magistrate's (the Magistrate) Order dated February 8, 2024 finding that Ms. Marley was not in compliance with court-ordered terms and conditions of probation. (Order, February 8, 2024, Lopes, M. (the Magistrate's Order)). The Court has jurisdiction pursuant to G.L. 1956 § 8-2-11.1(d).
I
Facts and Travel
On July 11, 2019, Ms. Marley pled nolo contendere to charges of embezzlement and fraudulent conversion in violation of G.L. 1956 § 11-41-3 and obtaining property by false pretenses in violation of § 11-41-4. (Disposition, July 11, 2019.) On that same date, Ms. Marley entered into Conditions of Supervised Probation (Conditions) that included a probationary period of July 11, 2019 to July 10, 2024 with restitution in the amounts of $13,786.48 and $2,075.25. Ms. Marley agreed to fulfill "any and all Special Conditions of Probation as ordered by the Court." Ms. Marley initialed and checked the box next to "Restitution" which included the aforementioned amounts.
On October 19, 2023, the Attorney General's Office (the State), filed a 32(f) Technical Violation Report (the Report), in accordance with Rule 32(f) of the Rules of Criminal Procedure. The Report alleged that Ms. Marley violated the terms of her probation in that she failed to pay restitution in full prior to the end of her sentence. Id. The Report further alleged that Ms. Marley had an outstanding restitution balance of $14,511.73 and that her last payment was on February 21, 2023 in the amount of $600. Id. Finally, the Report alleged that Ms. Marley had earned compliance credits pursuant to G.L. 1956 § 42-56-24 and therefore "her current end of sentence" became February 10, 2024. Id. On February 1, 2024 Ms. Marley was referred to the Public Defender's Office and a hearing was scheduled. (Clerk's Note, Feb. 2, 2024.)
On February 8, 2024, Magistrate Lopes conducted a technical violation hearing on the alleged Rule 32(f) Technical Violation. (Hr'g Tr. at 1-14, Feb. 8, 2024.) The State argued that it was provided with a probation report suggesting that Ms. Marley's probation was ending on February 10, 2024. Id. at 2:1-4. The Magistrate observed that when the State filed the Report, crediting of good time pursuant to § 42-56-24 was tolled. Id. at 2:5-7. The State averred that the probation department calculates compliance credits, resulting in an earlier end date for Defendant's probation. Id. at 4:1-2. The Magistrate determined that the last restitution payment by Ms. Marley was on February 21, 2023. Id. at 8:5-7. The Magistrate further determined that Ms. Marley was not in compliance with the court-ordered terms of her probation, and thus, when the term of Ms. Marley's probation is up in July of 2024, a civil judgment will enter. Id. at 8:13-15, 9:11-12.
Ms. Marley, through counsel, argued that pursuant to State v Regan, 273 A.3d 116 (R.I. 2022), restitution cannot be used as a basis for an extension of an individual's length of probation. (Hr'g Tr. 10:19-22, Feb. 8, 2024.) The Magistrate stated that her decision was not an extension of probation and that Ms. Marley's case was distinguishable from that of the defendant in Regan, because Ms. Marley has not been consistently compliant in making restitution payments. Id. at 12:1-21.
The Magistrate determined that Ms. Marley has not been "in compliance as the restitution is not done." Id. at 13:23-25. That same day, Ms. Marley timely filed a notice of appeal from the decision of the Magistrate. (Appeal of the Magistrate's Decision, dated Feb. 8, 2024.) The appeal was assigned to this Justice on March 11, 2024. (Order, Mar. 11, 2024.) Subsequently, the parties requested an order from the Magistrate and Ms. Marley filed a detailed petition setting forth the specific grounds for appeal. On April 10, 2024, the Magistrate entered an order dated February 8, 2024. (the Magistrate's Order.)
Ms. Marley, through counsel, requested transcripts on February 8, 2024. (Letter of Mr. Reardon, Feb. 8, 2024.)
On April 10, 2024, Ms. Marley, through counsel, filed a petition for review. (Def.'s Pet.) As grounds for her appeal, Ms. Marley argues that pursuant to § 42-56-24, the Probation Department of the Department of Corrections (DOC) has the authority to determine whether or not a probationer is entitled to good time credits. Id. ¶ 1. Ms. Marley further argues that pursuant to Regan, the failure to pay restitution is not a valid ground for an extension of an individual's probation. Id. ¶ 2. Additionally, Ms. Marley asserts that despite the pending Rule 32(f) Technical Violation, she is entitled to good time credits. Id. ¶ 3. Finally, Ms. Marley avers that should this Court agree that she is entitled to good time credits, and since she had not been adjudged or declared a violator before the expiration of her sentence, the alleged Rule 32(f) Technical Violation must be withdrawn. Id. ¶ 4.
On April 18, 2024, the Court received testimony from Lisa Blanchette Chamorro (Ms. Chamorro), the Assistant Administrator of Adult Probation and Parole with respect to the Probation Department's interpretation of § 42-56-24, specifically with regard to probationary compliance credits. The April 18, 2024 hearing concluded with final arguments of counsel.
II
Standard of Review
A
Review of a Magistrate's Decision
A Superior Court Justice's review of a decision of a magistrate is governed by § 8-2-11.1(d) which provides, in pertinent part:
"A party aggrieved by an order entered by the . . . magistrate shall be entitled to a review of the order by a justice of the superior court. Unless otherwise provided in the rules of procedure of the court, the review shall be on the record and appellate in nature. The court shall, by rules of procedure, establish procedures for review of orders entered by the . . . magistrate." Section 8-2-11.1(d).
Rule 2.9(h) of the Superior Court Rules of Practice presently governs the review standard, and provides:
"The Superior Court justice shall make a de novo determination of those portions to which the appeal is directed and may accept, reject, or modify, in whole or in part, the judgment, order, or decree of the magistrate. The justice, however, need not formally conduct a new hearing and may consider the record developed before the magistrate, making his or her own determination based on that record whether there is competent evidence upon which the magistrate's judgment, order, or decree rests. The justice may also receive further evidence, recall witnesses or recommit the matter with instructions." Superior Court R.P. 2.9(h).
The record on appeal includes "[t]he original papers and exhibits filed with the Superior Court, the transcript of the proceedings, and the docket entries." Superior Court R.P. 2.9(f). In addition to the record, pursuant to Rule 2.9(h), this Court received further evidence in the form of testimony from the Probation Department with respect to its interpretation of probationary compliance credits under § 42-56-24.
B
Statutory Interpretation
When construing a statute, the goal is to give effect to the purpose of the act as intended by the legislature. Generation Realty, LLC v. Catanzaro, 21 A.3d 253, 259 (R.I. 2011). Importantly, the entire statute must be considered as a whole and "'individual sections must be considered in the context of the entire statutory scheme, not as if each section were independent of all other sections.'" Id. at 259 (quoting Sorenson v. Colibri Corporation, 650 A.2d 125, 128 (R.I. 1994)).
The Court begins with the "plain language of the statute to determine the legislative intent behind its enactment." Matter of Falstaff Brewing Corp. re: Narragansett Brewery Fire, 637 A.2d 1047, 1050 (R.I. 1994). When "interpreting a legislative enactment, [it is incumbent upon the Court] to determine and effectuate the Legislature's intent and to attribute to the enactment the meaning most consistent with its policies or obvious purposes." Brennan v. Kirby, 529 A.2d 633, 637 (R.I. 1987) (citing Gryguc v. Bendick, 510 A.2d 937, 939 (R.I. 1986)). The Court then determines how the legislative act serves its purpose and considers what practical results would follow if the Court were to adopt an alternative interpretation. See Matter of Falstaff Brewing Corp., 637 A.2d at 1050.
"A statute or enactment may not be construed in a way that would attribute to the Legislature an intent that would result in absurdities or would defeat the underlying purpose of the enactment . . . nor may it be construed, if at all possible, to render sentences, clauses, or words surplusage." Brennan, 529 A.2d at 637 (citations omitted). "'[W]hen the provisions of a statute are unclear or subject to more than one reasonable interpretation, the construction given by the agency, or board, charged with its enforcement is entitled to weight and deference, as long as that construction is not clearly erroneous or unauthorized.'" West v. McDonald, 18 A.3d 526, 532 (R.I. 2011) (quoting Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859-60 (R.I. 2008)).
However, "[c]ourts may substitute their judgment for that of the administrative agency in deciding whether or not to enforce an interpretive rule. Although a court may choose to defer to an agency's judgment, it is not required to do so." Lerner v. Gill, 463 A.2d 1352, 1358 (R.I. 1983). "The interpretations represent no more than an agency's opinion regarding the application of a statute to a particular situation." Id.
III
Analysis
A
The Meaning of Compliance and § 42-56-24(h)
Rhode Island's statutory scheme governing the DOC-Title 42 Chapter 56-provides for earned time for good behavior or program participation or completion in § 42-56-24. In relevant part, that statute was amended in 2021 to include subsection (h) which provides a process for probationers to earn "good time" or compliance credits that will shorten their probationary term. See § 42-56-24(h) as amended by P.L. 2021, ch.162, art. 13, § 8. That amendment provides in pertinent part, that
"[a] person who is serving a term or terms of a probation sentence of one year or longer, including a person who has served a term of incarceration followed by a probation sentence . . . shall upon serving three years of their probation sentence be eligible to earn time off their term or terms of the probation sentence for compliance with court-ordered terms and conditions of probation. Calculation of these credits shall commence upon the probationer's completion
of all terms of incarceration." Section 42-56-24(h)(1) (emphasis added).
If a probationer is eligible for compliance credits and there has not been a judicial finding of a violation of the conditions of probation, then the probationer is entitled to ten (10) days a month in credits. See § 42-56-24(h)(2). For each month that a Rule 32(f) Technical Violation Report is pending, the probationer is ineligible to earn compliance credits. See § 42-56-24(h)(3). The probation department is responsible for keeping a record of the probationer's sentence that includes the end date based on earned credits for compliance with the terms and conditions of probation. See § 42-56-24(h)(4). Finally, subsection (h) is retroactive, consequently, all individuals sentenced to probation prior to the date of enactment such as Ms. Marley are eligible for compliance credits. See § 42-56-24(h)(5).
On April 18, 2024, the Court accepted testimony from Ms. Chamorro. (Evidentiary Hr'g Tr. 3:5-12, Apr. 18, 2024.) Ms. Chamorro oversees all officers in the department and the department is responsible for the tabulation of good time credits with respect to probationers pursuant to § 42-56-24(h). (Evidentiary Hr'g Tr. 3:11-19, Apr. 18, 2024.) Ms. Chamorro testified that her department monitors restitution payments that have been ordered as a term and condition of probation. Id. at 4:5-8.
Ms. Chamorro further testified that she is familiar with § 42-56-24(h) and that the department has a computer system that automatically computes compliance credits pursuant to §42-56-24(h). Id. at 7:11-18. She testified that the computer system gives probationers ten days of compliance credits per month once a probationer serves three years of their probation and there is no violation pending or there has not been a period of incarceration. Id. at 7:23-8:3. Ms. Chamorro testified that the department's interpretation of the statute is that the DOC has the sole authority to determine good time credits. Id. at 17:14-17. It was her testimony that a judge has discretion to revoke prior earned credits when there has been a decision adjudicating a probationer as a violator after a violation hearing. Id. at 18:10-12. Finally, Ms. Chamorro testified that the fact that a probationer missed restitution payments would not make them ineligible to earn compliance credits. Id. at 19:4-8.
"[W]hen the language of a statute is clear and unambiguous, this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings." Fitzgerald v. Jackson, 307 A.3d 1283, 1288 (R.I. 2024) (internal quotation marks omitted). The "'ultimate goal is to give effect to the purpose of the act as intended by the Legislature.'" State v. Odiah, 306 A.3d 1048, 1051 (R.I. 2024) (quoting State v. Whiting, 115 A.3d 956, 958 (R.I. 2015)).
Section 42-56-24(h)(1) provides that after serving three years of their probation sentence, a probationer shall "be eligible to earn time off their term or terms of the probation sentence for compliance with court-ordered terms and conditions of probation." (emphasis added). According to Merriam-Webster, compliance means "conformity in fulfilling official requirements." To be eligible for something means to be "qualified to participate." The clear meaning of the statute and the Legislative intent is that if probationers are in compliance with the terms and conditions of their probation they should be eligible for compliance credits. The Legislature clearly declared the policy behind Chapter 56 relating to the Corrections Department and its role in the supervision of those sentenced to periods of probation as part of their sentences. Section 42-56-1 provides, in pertinent part:
"compliance." Merriam-Webster.com. 2024. Retrieved from: https://www.merriam-webster.com/dictionary/compliance (Apr. 22, 2024).
"eligible." Merriam-Webster.com. 2024. Retrieved from: https://www.merriam-webster.com/dictionary/eligible (Apr. 22, 2024).
"1(a)(2) Efforts to rehabilitate and restore criminal offenders as law-abiding and productive members of society are essential to the reduction of crime; . . .
"(b) The purpose of this chapter is to establish a department of state government to provide for the supervision . . . of persons . . . on probation . . . so that those persons may be prepared for . . . supervision in the community." Section 42-56-1(a)(2); Section 42-56-1(b).
Restitution is often a condition of probation, to be monitored by probation. The legislature, in enacting § 42-56-24(h)(1), clearly intended that probationers in compliance with the conditions of their probation may be awarded "good time" credits, shortening the duration of the applicable period of probation. The intended purpose of § 42-56-24(h)(1) is clearly not that probationers can ignore their obligation to pay restitution, yet still be eligible to earn time off of their probationary sentences. Such a result would lead to absurdities as probationers would have no incentive to consistently pay restitution, or, for that matter, to comply with any other terms or conditions of their probation.
The DOC's interpretation of § 42-56-24(h) is that probationers are eligible for compliance credits notwithstanding any missed restitution payments. This Court is not required to defer to an administrative agency's judgment and may substitute its judgment for that of the agency in deciding whether or not to enforce an interpretive rule. Lerner, 463 A.2d at 1358. Section 42-56-24 does not expressly delegate power to interpret and define its provisions to the DOC. Therefore, "[n]either the [probation department] nor the Legislature is empowered to mandate a particular construction or interpretation of a statute as legally binding . . . [because] [t]he construction and interpretation of statutes is an exclusive function of the judiciary." Lerner, 463 A.2d at 1368, n.9 (citing the Rhode Island CONST., amend. 12, §§ 1 and 2) (1976).
The Court finds that the plain and ordinary meaning of "compliance" with respect to § 42-56-24(h)(1) is that probationers must make consistent restitution payments in order to be in compliance with the terms and conditions of their probation, making them eligible for compliance credits towards their probationary term pursuant to § 42-56-24.
B
The Magistrate's Order
The Magistrate presiding over Ms. Marley's alleged Rule 32(f) Technical Violation entered an order, dated February 8, 2024, finding that to date Ms. Marley "has not complied with all terms and conditions of Probation." This Court finds, after its de novo review, that there was competent evidence in the record before the Magistrate upon which the Magistrate's Order rests, and therefore this Court accepts in whole the Magistrate's Order. Moreover, based upon the record before the Magistrate, and after receiving further evidence in the form of testimony from Ms. Chamorro, this Court finds that Ms. Marley has not made consistent restitution payments, that she is not entitled to compliance credits pursuant to § 42-56-24(h)(1), and that the original end date of her probationary term, July 10, 2024, is still in effect.
As grounds for her appeal, Ms. Marley argues that pursuant to § 42-56-24, the DOC has the authority to determine whether or not a probationer is entitled to good time credits. (Def.'s Pet. ¶ 1.) Ms. Marley further argues that pursuant to Regan, the failure to pay restitution is not a valid ground for an extension of an individual's probation. Id. ¶ 2. Additionally, Ms. Marley asserts that despite the pending Rule 32(f) Technical Violation, she is entitled to good time credits. Id. ¶ 3. Finally, Ms. Marley avers that should this Court agree that she is entitled to good time credits, and since she had not been adjudged or declared a violator before the expiration of her sentence, the Report must be withdrawn. Id. ¶ 4.
For the reasons discussed supra, Ms. Marley's argument with respect to the DOC's authority to determine whether or not a probationer is entitled to good time credits is not persuasive. At the evidentiary hearing before this Court on April 18, 2024, Ms. Chamorro testified that her agency has a duty to monitor restitution payments as well as to compute credits pursuant to § 42-56-24(h). (Evidentiary Hr'g Tr. 3:16-4:5-8, Apr. 18, 2024.) While it is true that the DOC and the Department of Probation and Parole oversees offenders' sentences and the computation of compliance credits with respect to § 42-56-24, they do not have the final say on the interpretation of § 42-56-24 or a court-ordered sentence. See Rose v. State, 92 A.3d 903, 911 (R.I. 2014) (executive branch has authority to execute sentence but power over court-ordered sentence is judicial power).
Ms. Marley further suggests that the failure to make consistent restitution payments cannot be the basis for an extension of probation. At the Rule 32(f) Technical Violation hearing, the Magistrate stated that her decision was not an extension of probation and that Ms. Marley's case was distinguishable from that of the defendant in Regan, because Ms. Marley has not been consistently compliant in making restitution payments. (Hr'g Tr. 12:1-21, Feb. 8, 2024.) This Court agrees with the Magistrate's analysis with respect to the holding of the Regan case. Clearly, Ms. Marley's probationary term has not been extended by the Magistrate or this Court. As discussed infra, Ms. Marley has not made consistent restitution payments. Indeed, this Court specifically holds that Ms. Marley's probationary period is still in effect and will expire on July 10, 2024. On that date, if not sooner, a judgment for civil liability will enter in favor of her victims.
Ms. Chamorro testified that over the last four years, Ms. Marley has not made consistent restitution payments. (Evidentiary Hr'g Tr. 5:18-21, Apr. 18, 2024.) In fact, prior to the Rule 32(f) Technical Violation Report filing on October 19, 2023, Ms. Marley's last restitution payment was on February 21, 2023. (Ex. 1, payment schedule.) Ms. Marley's restitution payments can best be characterized as sporadic throughout her probationary period. See Ex. 1. Warrants issued for her arrest on January 7, 2020, and January 20, 2022. (Clerks Note PSC, Jan. 7, 2020 and Jan. 21, 2022.) The latter warrant was issued pursuant to Ms. Marley's failure to appear at a restitution review hearing.
Despite Ms. Marley's sporadic restitution payments, Ms. Chamorro testified that Ms. Marley started receiving compliance credits in August 2022 after completion of three years of probation in July 2022. (Evidentiary Hr'g Tr. 9:5-16, Apr. 18, 2024.) Ms. Chamorro further testified that the computer system the agency uses automatically computes compliance credits if there is no violation pending and there is no period of incarceration. Id. at 7:23-8:3. Thus, Ms. Marley was receiving compliance credits until the October 19, 2023 Technical Violation Report tolled the computation of credits. Id. at 10:19-23.
This Court determines that Ms. Marley is not eligible for compliance credits pursuant to § 42-56-24(h) due to her failure to comply with the terms and conditions of her probation. Specifically, she has failed to consistently make restitution payments leaving her balance in excess of $12,000. Thus, because she has not complied with the terms and conditions of her probation, no "good time" has accrued. Therefore, Ms. Marley's probation remains open until her original end date on July 10, 2024. At that point in time, a civil judgment must enter.
Regan, 273 A.3d at 120 ("upon expiration of a defendant's probation, the defendant remains civilly liable for the restitution.") (internal quotation marks omitted).
This Court is mindful that its interpretation of § 42-56-24(h) differs from the DOC's interpretation. As discussed, ante, this Court is not required to defer to the DOC's judgment and may substitute its judgment for that of the agency. Lerner, 463 A.2d at 1358. This Court has also considered what practical results will follow in light of this Court adopting an alternative interpretation from that of the DOC. Matter of Falstaff Brewing Corp., 637 A.2d at 1050. The practical result will be that prior to awarding compliance credits pursuant to § 42-56-24(h), the DOC will have to determine whether a probationer is making periodic restitution payments as ordered by the Court, and is therefore in compliance with the condition of probation requiring said restitution payments.
IV
Conclusion
For the reasons set forth in this Decision, after de novo consideration of the Magistrate's Order dated February 8, 2024, this Court affirms the Order of the Magistrate in whole and further determines that competent evidence in the record supports said Order.
Moreover, based upon the record before the Magistrate, and after receiving further evidence in the form of testimony from the Assistant Administrator of Adult Probation and Parole at the DOC, this Court finds that Ms. Marley, having failed to make consistent, periodic court-ordered restitution payments as required by the terms and conditions of her probation, is not entitled to compliance credits pursuant to § 42-56-24(h)(1), and that the original end date of her probationary term, July 10, 2024, is still in effect.
Counsel shall submit an appropriate order for entry.