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Defendant must prove inability to pay

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The defendant bears the burden of proving that he or she wasn't able to provide support at a probation revocation hearing for failing to support dependants, the Indiana Court of Appeals held today.

"Because in a prosecution for nonsupport of a dependent a defendant bears the burden of proving that he was unable to provide support, it likewise follows that when revoking a defendant's probation for failing to support his or her dependents, the defendant also bears the burden of proving that he or she was unable to provide support," wrote Judge Nancy Vaidik.

To hold otherwise would create an "undesirable inconsistency" in which the defendant would have to prove he couldn't pay in criminal proceedings for nonsupport of a defendant but the state would have to prove his inability to pay in probation revocation procedures for failure to pay child support, she continued.

In Dannie Ray Runyon v. State of Indiana, No. 57A04-0910-CR-575, Dannie Ray Runyon appealed the revocation of his probation and imposition of 6 years of a previously suspended 8-year sentence for failing to pay child support in violation of his probation. Runyon had pleaded guilty to Class C felony nonsupport of a dependent and was placed on probation with several conditions, including making weekly payments on his child support arrearage.

Less than a year after he was put on probation, the state alleged he violated its conditions by not paying court costs, probation user fees, and toward his child support arrearage. He had made inconsistent payments, which he claimed was because he lost his job. At the probation violation hearing, Runyon claimed he had a job lined up, but was then unable to verify his employment. He also failed to provide many details as to when he lost his jobs, and why he wasn't working.

Runyon doesn't contest that he violated the terms of his probation, but argued the revocation was an error because Indiana Code Section 35-38-2-3(f) provides that probation may not be revoked for failure to comply with a condition of a sentence that imposes financial obligations unless the person recklessly, knowingly, or intentionally fails to pay.

In the context of revoking probation for failure to pay restitution, the state bears the burden of proving the defendant had the ability to pay. But in a prosecution for nonsupport of a dependant, the defendant has to prove he couldn't provide support. This should also be the case when revoking a defendant's probation for failing to support his dependants, wrote Judge Vaidik.

If not, the inconsistency of requiring the defendant to prove inability to pay in criminal proceedings, but requiring the state to prove that at probation revocation hearings could result in the state strategically choosing either to file a new criminal charge for nonsupport of a dependant or to institute a probation revocation hearing, she continued.

Runyon failed to show his inability to pay and the trial court didn't err by sentencing him to 6 years of his previously suspended sentence.

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  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

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  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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