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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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