State v. Gamer ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v.
CHARLES GAMER, JR.
(AC 44179)
Bright, C. J., and Moll and Pellegrino, Js.
Syllabus
The defendant, who had been on probation in connection with his conviction
of larceny in the first degree, appealed to this court from the judgment
of the trial court revoking his probation. As a special condition of his
probation, the trial court ordered the defendant to make restitution for
verifiable out-of-pocket losses of the complainants in the amount of
$227,642. During the defendant’s five year probationary period, the
defendant paid a total of $2100 in restitution in $100 monthly payments
only when he was working. Following a violation of probation hearing,
the court found that the state had proved that the defendant violated
the restitution condition of probation by wilfully failing to pay restitution,
stating that the defendant intentionally delayed trying to repay the resti-
tution in the hope that his probationary period would expire. On the
defendant’s appeal to this court, held:
1. The defendant could not prevail on his claim that the evidence was
insufficient to establish that he wilfully failed to pay restitution: the trial
court’s finding that the defendant did not make sufficient bona fide
efforts to acquire the resources to pay restitution was not clearly errone-
ous, as there was ample evidence in the record to support such a finding;
moreover, the court relied on the defendant’s decision to strictly make
$100 restitution payments and to do so only in the months that he was
working, the defendant’s testimony regarding his belief that he should
not have to pay the restitution, the defendant’s failure to apply to certain
positions with potential employers because of his belief that he would
not be hired there and testimony from a chief probation officer detailing
meetings with the defendant regarding his restitution obligations, includ-
ing the defendant telling him that he was going to apply for a loan and
subsequently failing to provide any documentation showing that he had
applied for such loan.
2. The trial court did not abuse its discretion in revoking the defendant’s
probation and sentencing him to a term of incarceration, this court
having concluded that an abuse of discretion was not manifest or injus-
tice did not appear to have been done: the trial court conducted the
proper inquiry and found that the defendant wilfully refused to pay or
failed to make sufficient bona fide efforts legally to acquire the resources
to pay restitution prior to revoking his probation and sentencing him
to imprisonment; moreover, the court’s reasoning in revoking the defen-
dant’s probation and imposing an additional term of incarceration made
it clear that it necessarily believed the defendant’s behavior to be inimical
to the goals of his probation and that the rehabilitative purpose of
probation could no longer be served.
Argued January 6—officially released September 20, 2022
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Stamford-Norwalk, geographical area num-
ber twenty, where the matter was tried to the court,
McLaughlin, J.; judgment revoking the defendant’s pro-
bation, from which the defendant appealed to this court.
Affirmed.
James B. Streeto, senior assistant public defender,
with whom, on the brief, was Meaghan C. Kirby, certi-
fied legal intern, for the appellant (defendant).
Laurie N. Feldman, assistant state’s attorney, with
whom, on the brief, were Paul J. Ferencek, state’s attor-
ney, and Elizabeth K. Moran, assistant state’s attorney,
for the appellee (state).
Opinion
MOLL, J. The defendant, Charles Gamer, Jr., appeals
from the judgment of the trial court revoking his proba-
tion pursuant to General Statutes § 53a-321 and sentenc-
ing him to three years of incarceration. On appeal, the
defendant principally claims that (1) there was insuffi-
cient evidence to support the court’s finding that he
wilfully failed to pay restitution2 and (2) the court
abused its discretion by imposing a term of imprison-
ment in light of his purported inability to pay restitution.
We conclude that the court neither erred in finding
that the defendant wilfully failed to pay restitution nor
abused its discretion in revoking the defendant’s proba-
tion and sentencing him to a term of imprisonment.
Accordingly, we affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. In 2009, the state
charged the defendant with larceny in the first degree
in violation of General Statutes § 53a-122 based on his
unauthorized withdrawal of $227,863.24 from a home
equity line of credit taken out by his mother and his
sister.3 On April 19, 2010, on the basis of those facts,
the defendant, representing himself, pleaded guilty to
one count of larceny in the first degree in violation of
§ 53a-122. The trial court, Hudock, J., canvassed the
defendant and found that his waiver of counsel was
knowing and voluntary, that there was a factual basis
for the guilty plea, and that it was made knowingly,
voluntarily, and intelligently, whereupon the court
accepted the plea. On July 22, 2010, the court sentenced
the defendant to ten years of incarceration, execution
suspended after three years, followed by five years of
probation. As a special condition of probation, the court
ordered the defendant to make restitution for verifiable
out-of-pocket losses of the complainants in an amount
not to exceed $234,933.24, to be verified by the Office
of Adult Probation (OAP).4 The OAP ultimately deter-
mined the amount of restitution to be $227,642.
The defendant’s probationary period began on Febru-
ary 19, 2013. During the defendant’s five year probation-
ary period, the defendant paid a total of $2100 in restitu-
tion, leaving a remaining balance of $225,542. On
February 15, 2018, the state charged the defendant with
one count of violation of probation for failure to pay
restitution pursuant to § 53a-32. The defendant denied
the charge. On July 16, 2019, the court, McLaughlin,
J., held a violation of probation hearing during which
the defendant was represented by counsel.
That same day, the court issued its ruling from the
bench, initially stating: ‘‘When a violation of probation
is solely based on the defendant’s failure to pay restitu-
tion the court must find that the failure was wilful.’’
Guided by that standard, the court found that the state
had proved, by a fair preponderance of the evidence,
that the defendant violated the restitution condition of
his probation by wilfully failing to pay restitution. The
court reasoned: ‘‘[The defendant’s] payment of $100 a
month was not a bona fide effort to make restitution.
Rather it was a bare attempt to delay this case in hopes
of not having to pay the restitution at all.’’ The court
expressly relied on (1) the defendant’s testimony that he
did not need to pay the restitution,5 (2) the defendant’s
failure to apply for various positions with employers
such as McDonald’s or Wendy’s because of his belief
that he would not be hired, and (3) Chief Probation
Officer Kirk Gordon’s testimony that he met with the
defendant about his restitution obligation, that the
defendant told him that he was going to apply for a
loan, and that the defendant thereafter failed to provide
any documentation to demonstrate that he did so. In
sum, the court stated that, based on all of the evidence
and the credibility of the witnesses, it found that the
defendant intentionally delayed trying to repay the resti-
tution in the hope that his probationary period would
expire.
On December 19, 2019, the court held a sentencing
hearing during which it revoked the defendant’s proba-
tion and sentenced him to three years of incarceration.
This appeal followed. Additional facts will be set forth
as necessary.
As a preliminary matter, we set forth governing prin-
ciples of law pertaining to the revocation of probation
for failure to pay restitution. In Bearden v. Georgia,
461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221(1983), the United States Supreme Court held: ‘‘[I]n
revocation proceedings for failure to pay a fine or resti-
tution, a sentencing court must inquire into the reasons
for the failure to pay.’’ The court explained: ‘‘If the
probationer [wilfully] refused to pay or failed to make
sufficient bona fide efforts legally to acquire the
resources to pay, the court may revoke probation and
sentence the defendant to imprisonment within the
authorized range of its sentencing authority. If the pro-
bationer could not pay despite sufficient bona fide
efforts to acquire the resources to do so, the court must
consider alternate measures of punishment other than
imprisonment. Only if alternate measures are not ade-
quate to meet the [s]tate’s interests in punishment and
deterrence may the court imprison a probationer who
has made sufficient bona fide efforts to pay. To do
otherwise would deprive the probationer of his condi-
tional freedom simply because, through no fault of his
own, he cannot pay the fine. Such a deprivation would
be contrary to the fundamental fairness required by the
[f]ourteenth [a]mendment.’’ Id., 672–73; see also State
v. Martinik, 1 Conn. App. 70, 71–72, 467 A.2d 1247(1983) (reversing judgment of revocation of probation
for failure to make appropriate wilfulness finding under
Bearden).
‘‘As our Supreme Court has recognized in a related
context, [t]he impact of indigency on a criminal defen-
dant’s liability to pay a fine is codified in our rules of
practice. . . . Thus, in Connecticut, it has been
acknowledged judicially, both in cases and through our
adopted rules of practice, that a finding that a defendant
had the ability to pay and wilfully failed to do so is a
prerequisite to incarceration for the failure to pay a
fine.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Parker, 201 Conn. App. 435, 446, 242 A.3d
132 (2020). ‘‘[A]n explicit finding of wilfulness is
required.’’ Id., 444.
We note that, pursuant to Bearden v. Georgia, supra,461 U.S. 672, and State v. Martinik, supra, 1 Conn. App.
71–72, the trial court (1) considered the reasons for the
defendant’s failure to pay restitution and (2) concluded
that the state proved, by a fair preponderance of the
evidence, that the defendant violated his probation by
wilfully failing to pay the restitution in the amount of
$227,642. Specifically, the court found that the defen-
dant failed to make sufficient bona fide efforts legally
to acquire the resources to pay and that the defendant’s
sporadic payments of $100 per month did not constitute
a bona fide effort to make restitution.
I
We first address the defendant’s claim that the evi-
dence was insufficient to establish that he wilfully failed
to pay restitution.6 This claim fails.
Before we reach the merits of the defendant’s claim,
we set forth additional, applicable legal principles.
‘‘[R]evocation of probation hearings, pursuant to § 53a-
32, are comprised of two distinct phases, [the eviden-
tiary phase and the dispositional phase] each with a
distinct purpose. . . . In the evidentiary phase, [a] fac-
tual determination by a trial court as to whether a proba-
tioner has violated a condition of probation must first
be made. . . . In the dispositional phase, [i]f a violation
is found, a court must next determine whether proba-
tion should be revoked because the beneficial aspects
of probation are no longer being served.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) State v. Preston, 286 Conn. 367, 375–76, 944
A.2d 276 (2008). ‘‘Since there are two distinct compo-
nents of the revocation hearing, our standard of review
differs depending on which part of the hearing we are
reviewing.’’ (Internal quotation marks omitted.) State
v. Maurice M., 303 Conn. 18, 26, 31 A.3d 1063 (2011).
Because the present claim involves the evidentiary
phase and the trial court’s factual finding that the defen-
dant wilfully failed to pay restitution, we set forth the
standard of review applicable to that phase. ‘‘The law
governing the standard of proof for a violation of proba-
tion is well settled. . . . [A]ll that is required in a proba-
tion violation proceeding is enough to satisfy the court
within its sound judicial discretion that the probationer
has not met the terms of his probation. . . . It is also
well settled that a trial court may not find a violation
of probation unless it finds that the predicate facts
underlying the violation have been established by a
preponderance of the evidence at the hearing—that is,
the evidence must induce a reasonable belief that it is
more probable than not that the defendant has violated
a condition of his or her probation. . . . In making its
factual determination, the trial court is entitled to draw
reasonable and logical inferences from the evidence.
. . . Accordingly, [a] challenge to the sufficiency of the
evidence is based on the court’s factual findings. The
proper standard of review is whether the court’s find-
ings were clearly erroneous based on the evidence. . . .
A court’s finding of fact is clearly erroneous and its
conclusions drawn from that finding lack sufficient evi-
dence when there is no evidence in the record to sup-
port [the court’s finding of fact] . . . or when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed. . . . In
making this determination, every reasonable presump-
tion must be given in favor of the trial court’s ruling.’’
(Citation omitted; internal quotation marks omitted.)
Id., 26–27.
Mindful of these principles, we turn to the defendant’s
claim that the evidence adduced at his violation of pro-
bation hearing was insufficient to support the trial
court’s wilfulness finding. During the evidentiary phase
of the hearing, the state called one witness, Kirk Gor-
don, a chief probation officer. Gordon testified that
Shonda Wright, a probation officer, supervised the
defendant from approximately February, 2013, to Octo-
ber, 2017, at which point Gordon took over the defen-
dant’s case. Gordon further testified that (1) the defen-
dant met with Wright on a monthly basis, (2) Wright
specifically advised the defendant of his $227,642 resti-
tution obligation on December 16, 2014, (3) upon estab-
lishing a restitution payment plan with probationers,
the OAP sends probationers monthly notifications
regarding their payment plans, and (4) the defendant
received these notifications. Regarding his own interac-
tions with the defendant, Gordon testified that, in addi-
tion to several face-to-face meetings, he had six to seven
conversations with the defendant regarding when the
restitution was due, the amounts owed, his payment
plan, the fact that what the defendant was paying would
not be sufficient to pay off the restitution balance, and
the consequences of failing to pay the total restitution
amount. Gordon also testified that, after speaking to
the defendant in November, 2017, he had delayed pre-
paring the arrest warrant for the defendant’s violation
of probation because the defendant had told him that
he planned to pursue a loan in an effort to pay his
restitution. The defendant failed to contact Gordon,
however, for three to four weeks thereafter and did not
provide him with any loan documentation or an updated
payment plan.
In the defendant’s case-in-chief, the defense called
the defendant as a witness.7 Initially, the defendant testi-
fied that he signed his conditions of probation on Febru-
ary 21, 2013, but that the ‘‘issue of restitution [was] not
represented properly’’ because a forensic accounting
was supposed to be performed to verify the restitution
amount. He then stated that he went on around thirty
to thirty-five interviews in his first year of probation,
with ‘‘[e]verybody from Verizon to Home Depot.’’8 The
defendant explained, however, that these employers
would not hire him because of his felony conviction.
Therefore, he did not find employment for ‘‘[s]everal
months,’’9 until he started working as a ‘‘[d]ay laborer’’
with a small landscaping company called Kemry Hills.
The defendant then explained that his work schedule
as a day laborer was heavily dependent on the weather,
and that ‘‘if everything went the right way,’’ he would
make ‘‘a couple thousand dollars a month.’’ Neverthe-
less, the defendant also testified that he did not receive
his first paycheck until May, 2016, and thus had no
income between February, 2013, and May, 2016.10 Upon
reviewing his tax documents, which had been admitted
into the record, the defendant explained that he made
(1) between $27,000 and $28,000 in 2016; (2) $28,000
in 2017; and (3) $21,000 in 2018.11 The defendant also
testified that he did not do anything outside of landscap-
ing because ‘‘that takes most of your time.’’ When asked:
‘‘Do you take accountability with paying this restitution
amount? Do you believe that you have to pay it,’’ the
defendant responded, ‘‘No, I don’t think I have to pay it.’’
On cross-examination, the defendant acknowledged
that he pleaded guilty to larceny in the first degree for
‘‘stealing money from [his] mother’’ to pay for his ‘‘kids’
education.’’ On both direct and cross-examination, how-
ever, the defendant testified that, although it was his
obligation to pay the restitution amount to which he
agreed in his guilty plea, he did not believe that he
should have to pay it. On redirect examination, the
following exchange occurred between the defendant’s
counsel and the defendant:
‘‘Q. . . . Do you believe that you should have to pay
this money back? And just give the court—I just want
your honest answer. We’re not here to . . . we just
want to be honest and transparent. Do you believe that
you should have to pay this money back?
‘‘A. No. . . .
‘‘Q. —(inaudible) do you believe that you have to pay
this money back?
‘‘A. I’m committed to paying it back. I am commit-
ted—I don’t believe I owe this money. That’s an entirely
different situation. . . .
‘‘Q. So you’re committed to paying this, as you just
testified—
‘‘A. Always have been.
‘‘Q. —because it is your belief that it is your obliga-
tion?
‘‘A. Right.’’
Both the defendant and the state submitted exhibits
during the hearing. State’s exhibit three shows that the
defendant made: (1) no restitution payments in 2013
and 2014; (2) $100 payments in March, April, May, June,
July, September, and December, 2015; (3) $100 pay-
ments in March, August, September, and November,
2016; and (4) $100 payments in January, February,
March, April, May, July, August, September, November,
and December, 2017.
After both parties’ closing arguments, the court found
that the state proved, by a fair preponderance of the
evidence, that the defendant violated his probation by
failing to pay the restitution in the amount of $227,642.
In making this finding, the court expressly relied on
‘‘all of the evidence and the credibility of the witnesses
. . . .’’ As to wilfulness, the court found that the defen-
dant’s ‘‘payment of $100 a month was not a bona fide
effort to make restitution. Rather it was a bare attempt
to delay this case in hopes of not having to pay the
restitution at all.’’ Specifically, the court relied on (1) the
defendant’s decision to strictly make $100 restitution
payments and to do so only in the months that he was
working, (2) the defendant’s testimony regarding his
belief that he should not have to pay the restitution,
(3) the defendant’s failure to apply to certain positions
with employers such as McDonald’s, Wendy’s, or Home
Depot because of his belief that he would not be hired
there,12 and (4) Gordon’s testimony detailing his meet-
ings with the defendant regarding his restitution obliga-
tions, including the defendant telling him that he was
going to apply for a loan and subsequently failing to
provide any documentation showing that he had applied
for such loan. We conclude that the court’s finding that
the defendant did not make sufficient bona fide efforts
to acquire the resources to pay restitution; see Bearden
v. Georgia, supra, 461 U.S. 672; State v. Martinik, supra,1 Conn. App. 71–72; is not clearly erroneous because
there is ample evidence in the record to support it. See
State v. Preston, supra, 286 Conn. 376.
II
We next address the defendant’s claim that the court
abused its discretion by imposing a term of incarcera-
tion based on his purported inability to pay restitution.
In support of this claim, the defendant makes five basic
contentions: (1) he tried to comply with his restitution
obligation; (2) Gordon testified that he had never seen
a probationer successfully satisfy a restitution amount
of $200,000 or more; (3) ‘‘[n]o public safety preservation
is achieved by re-incarcerating a man where the victim
of the underlying larceny charge, his mother, has
already been recuperated for the funds she lost’’; (4)
re-incarcerating him did not serve any ‘‘penological pur-
pose’’; and (5) there were several sentence alternatives
available to the court, such as a modification of the
sentence, extension of the sentence, and continuation
of probation. We reject this claim.
‘‘The standard of review of the trial court’s decision at
the [dispositional] phase of the revocation of probation
hearing is whether the trial court exercised its discre-
tion properly by reinstating the original sentence and
ordering incarceration. . . . In determining whether
there has been an abuse of discretion, every reasonable
presumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
where an abuse of discretion is manifest or where injus-
tice appears to have been done. . . . In the disposi-
tional phase, [t]he ultimate question [in the probation
process is] whether the probationer is still a good risk
. . . . This determination involves the consideration of
the goals of probation, including whether the probation-
er’s behavior is inimical to his own rehabilitation, as
well as to the safety of the public.’’ (Citations omitted;
internal quotation marks omitted.) State v. Preston,
supra, 286 Conn. 377. ‘‘A defendant who seeks to reverse
the exercise of judicial discretion assumes a heavy bur-
den.’’ (Internal quotation marks omitted.) Id., 381 n.8.
On December 19, 2019, the court held a sentencing
hearing during which it revoked the defendant’s proba-
tion and sentenced him to three years of incarceration.
In revoking the defendant’s probation, the court rea-
soned that he was ‘‘not someone who [was] seeking
their best efforts to at least attempt to pay back the
restitution’’ and there was nothing in the record that
evinced ‘‘true bona fide good efforts to repay the restitu-
tion.’’ The court further reasoned that ‘‘this was not a
case of someone who is not able to pay. This was a
case of someone who did not want to pay and was not
going to pay that restitution.’’ Additionally, the court
opined: ‘‘I think [the defendant] did hope that if he
delayed the payment throughout his probation that pro-
bation would expire and he could move on with his
life.’’
The defendant’s arguments in support of this second
claim have not convinced us that an abuse of discretion
is manifest or that injustice appears to have been done.
See State v. Preston, supra, 286 Conn. 377. Rather, the
defendant is simply repeating many of the same argu-
ments that he made regarding the trial court’s wilfulness
finding. As explained previously, a court may order the
revocation of probation and sentence a defendant to
imprisonment based on nonpayment of restitution only
when it finds that a probationer has wilfully refused to
pay or failed to make sufficient bona fide efforts legally
to acquire the resources to pay. Bearden v. Georgia,
supra, 461 U.S. 672; State v. Martinik, supra, 1 Conn.
App. 71–72. Here, after conducting the proper inquiry
and finding that the defendant failed to make sufficient
bona fide efforts, the court revoked the defendant’s
probation and sentenced him to imprisonment. Pursu-
ant to Bearden, ‘‘a probationer’s failure to make suffi-
cient bona fide efforts to seek employment or borrow
money in order to pay the fine or restitution may reflect
an insufficient concern for paying the debt he owes to
society for his crime. In such a situation, the [s]tate
is likewise justified in revoking probation and using
imprisonment as an appropriate penalty for the
offense.’’ Bearden v. Georgia, supra, 668. ‘‘[T]he ele-
ment of punishment in probation revocation of [the]
defendant is attributable to the crime for which he [or
she] was originally convicted and sentenced. Thus, any
sentence [the] defendant had to serve as the result of
the [probation] violation . . . was punishment for the
crime of which he [or she] had originally been con-
victed. Revocation is a continuing consequence of the
original conviction from which probation was granted.’’
(Internal quotation marks omitted.) State v. Santos T.,
146 Conn. App. 532, 536–37, 77 A.3d 931, cert. denied,
310 Conn. 965, 83 A.3d 345 (2013).
Furthermore, the court’s reasoning in revoking the
defendant’s probation and imposing an additional term
of incarceration makes clear that it necessarily believed
(1) the defendant’s behavior to be inimical to the goals
of his probation; see State v. Preston, supra, 286 Conn.
377; and (2) that the rehabilitative purpose of probation
could no longer be served. We will not substitute our
judgment for that of the trial court. State v. Roman, 13
Conn. App. 638, 641, 538 A.2d 1076 (1988). In light of
the foregoing, we conclude that the court did not abuse
its discretion in revoking the defendant’s probation and
sentencing him to three years of incarceration.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-32 provides in relevant part: ‘‘(a) At any time
during the period of probation . . . the court or any judge thereof may
issue a warrant for the arrest of a defendant for violation of any of the
conditions of probation . . . .
‘‘(c) Upon . . . an arrest by warrant as herein provided, the court shall
cause the defendant to be brought before it without unnecessary delay for
a hearing on the violation charges. At such hearing the defendant shall be
informed of the manner in which such defendant is alleged to have violated
the conditions of such defendant’s probation . . . shall be advised by the
court that such defendant has the right to retain counsel and, if indigent,
shall be entitled to the services of the public defender, and shall have the
right to cross-examine witnesses and to present evidence in such defendant’s
own behalf. . . .
‘‘(d) If such violation is established, the court may . . . (4) revoke the
sentence of probation . . . . If such sentence is revoked, the court shall
require the defendant to serve the sentence imposed or impose any lesser
sentence. Any such lesser sentence may include a term of imprisonment,
all or a portion of which may be suspended entirely or after a period set
by the court, followed by a period of probation with such conditions as the
court may establish. No such revocation shall be ordered, except upon
consideration of the whole record and unless such violation is established
by the introduction of reliable and probative evidence and by a preponder-
ance of the evidence.’’
2
See footnote 6 of this opinion.
3
The defendant also was charged in a separate file with larceny in the
second degree in violation of General Statutes § 53a-123 and issuing a bad
check in violation of General Statutes § 53-128 based on his unauthorized
taking of $7070 from a childhood friend. See footnote 4 of this opinion.
4
At sentencing, the state nolled the charges of larceny in the second
degree and issuing a bad check, contingent on the $7070 being included in
the total restitution amount. See footnote 3 of this opinion.
5
The court also explained that the defendant’s uniform payments of $100
per month worked against his argument that he had made bona fide efforts
to acquire the resources to pay: ‘‘If [the defendant] had paid varying amounts
instead of the $100 a month while he was working, perhaps the court would
come to a different decision. However, he did not.’’
6
We pause at this juncture to emphasize that the defendant does not
dispute that the trial court made the necessary finding pursuant to Bearden
v. Georgia, supra, 461 U.S. 672, that his failure to pay was wilful. In this
way, this case is distinguishable from State v. Parker, supra, 201 Conn. App.
449–52, in which this court held that, pursuant to Bearden, the trial court
did not make the necessary finding that the defendant’s failure to pay was
wilful, which required the reversal of the judgment. As a result, we concluded
in Parker that ‘‘it [was] not necessary to reach the defendant’s second claim
that the state introduced insufficient evidence to prove that the defendant
wilfully refused to pay restitution.’’ State v. Parker, supra, 452. In the present
case, the defendant is making a claim akin to the second claim raised
in Parker.
Relatedly, because the defendant conceded during oral argument before
this court that the trial court made the requisite wilfulness finding pursuant
to Bearden, we deem abandoned his first claim set forth in his principal
appellate brief that the trial court committed a Bearden violation. See Cun-
ningham v. Commissioner of Correction, 195 Conn. App. 63, 65 n.1, 223
A.3d 85 (2019) (declining to review claims that counsel expressly abandoned
at oral argument), cert. denied, 334 Conn. 920, 222 A.3d 514 (2020).
7
The defendant confirmed that he had consulted with his attorney and
decided to waive his constitutional right not to testify.
8
The defendant also stated that he did not apply to positions with McDon-
ald’s, Burger King, Wendy’s, or Starbucks.
9
The defendant testified that he did not apply for unemployment during
these months because he had the ‘‘ability to work.’’ He did not, however,
speak to anyone regarding his qualifications for unemployment.
10
For at least part of this time, the defendant pursued a doctorate in foreign
affairs from North Central University, an online program. The defendant
explained that he took out a student loan of ‘‘like $10,000, $12,000,’’ to pay
for this education. He further explained that he made some payment toward
this loan in ‘‘approximately 2015.’’
11
The defendant explained that his income dropped in 2018 because it
rained more than usual and he was unable to work as many hours as he
had in 2016 and 2017.
12
The court stated that the defendant did not apply to Home Depot. The
defendant testified, however, that he applied to a position with Home Depot
but was denied employment because of his felony conviction. Nevertheless,
the defendant testified that he did not apply to positions with McDonald’s,
Burger King, Wendy’s, or Starbucks because he believed that he would not
be hired by these employers as a result of his felony conviction. See footnote
8 of this opinion. Therefore, the court’s point still stands.