dissenting.
I concurred in State v. Morse, 2014 VT 84, ¶¶ 25-29, 197 Vt. 495, 106 A.3d 902, because I believe that determination and assessment of restitution awards is crippled by the absence of effective procedural rules to regularize how restitution requests are considered. For similar reasons, I dissent here.11
¶ 27. There never was any question in this case as to what the victim claimed was stolen or damaged and what value the victim assigned to the items involved. The police affidavit stated the items taken were valued at $1332.50. Defendant knew in detail what the victim was seeking because defense counsel took the victim’s deposition. The trial court’s findings state that the victim was seeking restitution in that amount. Despite an evidentiary hearing that stretched over two days, and in which defendant testified, there never was a claim by defendant that he was unable to pay the amount the State sought. Nor, after the State rested, did defendant move for an order of no restitution because the State failed to put on any evidence of his ability to pay the amount that the State sought, although defendant claims on appeal that the State has the obligation to provide that evidence. *188Facing a record of defendant’s total silence on the issue, the court found that “[t]here was no evidence presented showing that Defendant does not have the ability to pay restitution.” In its judgment, the court found defendant “has the current ability or reasonably foreseeable ability to make the payment(s)” and ordered immediate payment of $1251.45. We should affirm that decision.
¶-28. I acknowledge that the governing statute states that in awarding restitution “the Court shall make findings with respect to . . . [t]he offender’s current ability to pay restitution, based on all information available to the Court, including information provided by the offender.” 13 V.S.A. § 7043(d)(2); see also 28 V.S.A. § 252(b)(6) (providing that court may impose restitution as condition of probation in amount “which shall not exceed an amount the defendant can or will be able to pay”). The court did exactly what was required by the statute, given that there was no information on ability to pay presented.
¶ 29. The problem, in my judgment, is not the statute but how this Court has interpreted the statute. In State v. Sausville, 151 Vt. 120, 557 A.2d 502 (1989), over a dissent that the defendant failed to preserve the issue, this Court reversed a restitution award because the trial court made no findings that the defendant had the ability to pay the restitution award. Id. at 121, 557 A.2d at 503. The decision gives no explanation for dispensing with preservation, except that the statute requires findings on the defendant’s ability to pay. When Sausville was decided, the decision was unusual in not requiring preservation for a direct appeal to this Court. Now it is virtually unique. Certainly the rationale that preservation is not required where the issue involves a requirement to make findings has been rejected. See, e.g., State v. Cleary, 2003 VT 9, ¶¶ 16-17, 175 Vt. 142, 824 A.2d 509 (requiring preservation, absent plain error, for direct appeal of Vermont Rule of Criminal Procedure 11 violations, involving failure to render required advice and information to defendant and lack of findings). We should explicitly overrule Sausville on this point. See State v. King, 204 P.3d 585, 599 (Kan. 2009) (holding that claim that trial court failed to make findings on ability to pay was not raised below and therefore was not preserved for appeal).
¶ 30. Even if we do not overrule Sausville, we should distinguish it here. Unlike Sausville, this is a case in which defendant knew exactly the amount of restitution the State and victim *189sought, and the court awarded an amount close to the demand. Also, unlike Sausville, there was an evidentiary hearing with testimony, and defendant had the opportunity after the State presented its testimony to claim that the State’s presentation was deficient. Further, defendant testified and could have addressed his ability to pay the restitution judgment the State sought. There is no valid reason here for lack of preservation.
¶ 31. I recognize that in the absence of preservation, we would still reverse if we found plain error. I would not find plain error on this record. Defendant never has alleged that he does not have the ability to pay, relying on the technicality that there is no finding of ability to pay. In the absence of such a claim, we cannot find prejudice to conclude there was plain error.
¶ 32. There is a second, and more important, reason to overrule Sausville. It held:
Defendant’s failure to take the stand does not obviate the court’s duty to determine if the restitution award is within defendant’s ability to pay. If defendant does not take the stand on his own behalf, it will be necessary for the State to establish in some other manner defendant’s ability to pay restitution. The failure of the court to make any findings as to defendant’s ability to pay the restitution award requires our reversal of the restitution order.
Sausville, 151 Vt. at 121, 557 A.2d at 503. The assumption of the decision is that the burden of proof on ability to pay must be placed on the prosecution and that the defendant cannot be required to provide information with respect to ability to pay restitution. Thus, according to the decision, unless the defendant volunteers the information, or the prosecutor can obtain it from another source, the defendant has an absolute defense to a restitution demand. Since the relevant information is frequently held only by the defendant, the decision is an impediment to many restitution orders.
¶ 33. In fact, the assumptions behind the decision are wrong. The statute does not place the burden of proof of ability to pay on the State; in fact, it reflects an expectation that at least some of the information will be provided by the defendant. See 13 V.S.A. § 7043(d)(2). Inability to pay should be viewed as an affirmative defense. For that reason, the decisions from appellate courts in other jurisdictions in similar circumstances have placed *190the burden of proof to show inability to pay on the defendant. See, e.g., King, 204 P.3d at 601; State v. Gill, 2004 ND 137, ¶ 14, 681 N.W.2d 832. There is no indication that the Sausville Court ever considered these decisions or were even aware of them. We should follow these decisions and overrule Sausville.
¶ 34. This returns me to my opening point on Morse. We have no procedural regulation of restitution proceedings, and this has turned them into a crapshoot. Rules should establish pleading and disclosure requirements. Going into the hearing, the court and the defendant should know exactly what the State is seeking, its rationale, and what evidence will support it. Similarly, the court and the State should know what defense will be relied upon and what evidence will be presented by the defendant. The burdens of production and persuasion clearly should be specified. Adequate time should be reserved for the presentation of evidence. We should have clear preservation requirements.
¶ 35. Meanwhile, we should overrule Sausville, require preservation, place the burden of proof with respect to inability to pay on defendant, and affirm the trial court’s decision in this case on ability to pay.
¶ 36.
I recognize that the State in this case has confessed error and not contested defendant’s argument that the trial court erred with respect to the ability to pay. In doing so, the State has recognized that decisions of this Court require that result. We may, however, affirm on any ground, even if not raised by the party whose position is favored by our action, and this dissent urges that we overrule the governing precedent to reach that result.