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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. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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