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Justices: Use preponderance of evidence standard to find probation violation

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Kimberly Heaton will have a new hearing on whether she violated the terms of her probation when she was charged with Class D felony theft. The Indiana Supreme Court vacated her probation revocation because a Madison Superior judge may have used the wrong legal standard to find the violation.

Heaton was on probation in September 2009 after pleading guilty to Class D felony receiving stolen property when she was arrested and charged with theft. The state filed a notice of probation alleging three technical violations and that she committed a new criminal offense. Madison Superior Judge Dennis D. Carroll, using the probable cause standard, found she violated her probation and ordered she serve 18 months of her previously suspended sentence.

In Kimberly Heaton v. State of Indiana, 48S02-1206-CR-350, Heaton argued that the trial court should have used the preponderance of evidence standard when determining if she committed a new criminal offense. The Indiana Court of Appeals agreed with Heaton, as did the justices.

The state claimed that caselaw shows the proper standard is probable cause, citing Cooper v. State, 917 N.E.2d 667 (Ind. 2009). But the only issue properly before the justices in Cooper was whether the trial court erred in denying his motion to reconsider, Chief Justice Brent Dickson pointed out. The Cooper court found that probable cause would be needed to revoke probation.

Since 1976, the Indiana Code has said that the state must prove a violation by a preponderance of the evidence, and “To the extent that Cooper may be read to permit proof only by probable cause, it is overruled,” Dickson wrote.

In Heaton’s case, the justices found the record unclear as to which standard Carroll used because he referenced the probable cause standard and claimed the court found by a preponderance of the evidence that Heaton committed the crime. They vacated the probation revocation and order she serve a portion of her previously suspended sentence and sent the case back to Madison Superior Court. There, Carroll will hold a new determination of whether Heaton violated the conditions of her probation by a preponderance of the evidence pursuant to I.C. 35-38-2-3(e) (2008), and if so, what the appropriate sanction is.

 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

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  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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