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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. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  2. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  3. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  4. Why do so many lawyers get away with lying in court, Jamie Yoak?

  5. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

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