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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. 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?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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