State v. Black, COA22-426, ___ N.C. App. ___ (Feb. 21, 2023)

In this Buncombe County case, defendant argued error by the trial court when ordering that she pay restitution of $11,000. The Court of Appeals found no error and affirmed the judgment. 

The current opinion represents the second time this matter came before the Court of Appeals; previously defendant appealed her convictions of possession of a stolen motor vehicle and attempted identify theft after pleading guilty, arguing mistakes in calculating her prior record level and error in ordering a civil judgment for attorney’s fees without permitting defendant to be heard. In State v. Black, 276 N.C. App. 15 (2021), the court found error by the trial court on both issues, and remanded for resentencing while vacating the attorney’s fees. After the trial court’s hearing on remand, defendant brought the current appeal, arguing that the trial court erred because it did not hear from her or consider her ability to pay before ordering the $11,000 restitution. 

The Court of Appeals disagreed with defendant, noting that defendant did not present evidence of her inability to pay the restitution, and the burden of proof was on her to demonstrate an inability to pay. The applicable statute, G.S. 15A-1340.36(a), requires the trial court to consider the defendant’s ability to pay restitution, but does not require any specific testimony or disclosures from defendant. Looking at the record, the court found no abuse of discretion by the trial court, explaining that defendant even conceded “she previously stipulated to the $11,000 restitution amount set out in the May 2019 Restitution Worksheet.” Slip Op. at 6.