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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. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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