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COA: State didn't meet burden for probation revocation

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The Indiana Court of Appeals has held – with a few exceptions – that a trial court may revoke probation for not satisfying a financial obligation only if the state proves by a preponderance of the evidence there is less than full payment and the probationer submitted that smaller payment recklessly, knowingly, or intentionally.

This issue arose in Troy R. Smith v. State of Indiana, No. 35A02-1008-CR-996. Troy Smith appealed his revocation of probation for not paying child support weekly, which was a condition of his probation. At first, Smith was current on his payments of weekly child support and arrearage. When the trial court increased his obligation, Smith continued to pay the previous amount. His payments later became intermittent and some were only partial payments after he lost his job and suffered health issues.

At the hearing to revoke his probation, Smith didn’t explicitly admit he fell behind in payments, but explained he had serious health conditions, lost his job as a truck driver, and had submitted job applications to no avail. The trial court revoked his probation, finding he failed to make regular payments when he was employed and after he lost his job. He was sentenced to three years in prison.

To revoke probation, the state only has to prove a violation by a preponderance of the evidence. Revocation is a two-step process – the court makes a factual determination the probation violation occurred and the court determines if the violation warrants revocation. Probation for not paying can’t be revoked unless the person recklessly, knowingly, or intentionally doesn’t pay.

The Court of Appeals concluded there was no indication that Smith knew or was aware of a high probability that his partial payments would equate failure to make weekly payments. They held that ruling his partial payments constituted a knowing failure would render the statutory mental state requirement for revocation meaningless and contrary to public policy.

“To conclude Smith’s partial payments constitute a knowing failure to make weekly payments would discourage partial payment for the benefit (albeit limited) of his children in favor of no payment at all,” wrote Chief Judge Margret Robb.

She noted that partial payments don’t always foreclose a finding of knowing or intentional failure to pay.

Citing Szpunar v. State, 914 N.E.2d 773 (Ind. Ct. App. 2009), and Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010), the judges explained that it is the state that has the burden to prove both the violation and requisite state of mind in order to obtain a probation revocation.

“To prove ‘knowingly’ the State must show by a preponderance of the evidence that the probationer was able to pay. Our holdings do not apply, of course, where a probationer admits his violation and the trial court proceeds directly to the second step of the revocation process,” wrote the chief judge.

Neither the state nor Smith made an explicit argument as to his ability to pay during any period. Because the state didn’t present evidence to establish his ability to pay during the relevant period, it didn’t satisfy its burden. The trial court abused its discretion in revoking Smith’s probation.  

The judges reversed the order, finding that even if he did violate his probation, the record doesn’t support revocation in full.
 

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  1. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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