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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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