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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. 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

  2. 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.

  3. 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.

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