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Trial court used wrong legal standard in revoking probation

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The Indiana Court of Appeals has ordered a trial court to use the proper legal standard to determine whether a woman violated her probation when she was arrested for theft. The trial court used a probable cause standard instead of the legal standard of a preponderance of evidence.

In Kimberly Heaton v. State of Indiana, No. 48A02-1104-CR-404, Kimberly Heaton argued that Madison Superior Judge Dennis D. Carroll used the incorrect legal standard – probable cause – when revoking her probation and ordering her to serve 18 months of her previously suspended sentence in prison. Heaton was on probation after pleading guilty to Class D felony receiving stolen property. She was later arrested for Class D felony theft and the state filed a petition to revoke her probation.

An evidentiary hearing was held on March 8, 2011, but Heaton was unable to attend due to pregnancy complications. A week later, she was able to testify. The trial court found her to be in violation of four terms of her probation.

Appellate Judge Nancy Vaidik noted that courts had interpreted Indiana’s probation revocation statute before 1983 as requiring a probable cause determination for determining whether a new offense was committed. That statute was revised in 1983 and now says that probation violations must be proven by a preponderance of the evidence. Some cases post-1983 have relied on cases that cite the old statute, but those cases are relying on out-of-date law.

“We note that today the correct legal standard in determining if a person on probation has committed another offense is a preponderance of the evidence, as is articulated in the current Indiana Code section 35-38-2-3(e),” wrote Vaidik.

The trial court here used the wrong legal standard, so the appellate court couldn’t be sure if the judge would have imposed the same 18-month sentence. The COA instructed the trial court to use the preponderance of the evidence legal standard to determine whether Heaton violated her probation with the new arrest and resentence her in light of the new findings.

 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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