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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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