Meek v. State
| Decision Date | 31 December 2014 |
| Docket Number | No. 40A01–1405–CR–213.,40A01–1405–CR–213. |
| Citation | 26 N.E.3d 686 (Table) |
| Parties | Bryan P. MEEK, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Bryan P. Meek appeals an order revoking his probation for failure to pay child support according to the terms of his probation. Finding that the State demonstrated his knowing nonpayment and that he failed to demonstrate that his nonpayment was due to an inability to pay, we affirm.
In February 2013, Meek pled guilty to class D felony nonsupport of a dependent child based on his nonpayment of approximately $11,000 in child support for his son K.M. between 2006 and 2012. At the time of his guilty plea, his child support arrearage was $ 14,591.47. The trial court sentenced him to two years, with eighteen months suspended to probation. As a condition of his probation, he was ordered to pay $157 per week in current and past-due child support.
Meek was released to probation in September 2013. Over the next four months, he made partial support payments totaling only $120.27 of the over $2000 due during that period. During his probation, he lived with his pregnant fiancee and her two-year old son. His fiancee was employed but later became unemployed. Also during his probation, Meek received support and/or financial assistance from his mother, grandfather, landlord, and St. Vincent de Paul. Shortly after his release from jail, Meek obtained a factory job through a local staffing company. However, he was discharged two weeks later when his criminal background check revealed a 2002 felony theft conviction. He obtained a second job but was downsized about six weeks later. For about four months, he was unemployed. He testified that during those months he had submitted applications at several companies and employment agencies. On April 8, 2014, he obtained a job through a different staffing agency.
On April 15, 2014, the trial court conducted a probation revocation hearing. By that time, Meek's child support arrearage had increased to $19,864.20. Meek testified that he simply did not have the ability to pay his child support obligation. On April 23, 2014, the trial court issued an order revoking Meek's probation and committing him to the Department of Correction for the remainder of his term. The court specifically found that throughout the six years that the State had worked with him to secure payment, Meek had offered many of the same excuses for nonpayment. Concluding that Meek's failure to pay was due to a lack of willingness, not a lack of ability, the trial court characterized his nonpayment as the product of his own poor choices and lack of ambition.
Meek now appeals the probation revocation order. Additional facts will be provided as necessary.
Meek maintains that the trial court abused its discretion in revoking his probation. Probation is a matter of grace left to the trial court's sound discretion, not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007). The trial court determines the conditions of probation and may revoke probation if the probationer violates those conditions. Id. We review a trial court's probation violation determination using an abuse of discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042 (Ind.Ct.App.2014). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or where the trial court misinterprets the law. Id. In determining whether a trial court has abused its discretion, we neither reweigh evidence nor judge witness credibility. Mogg v. State, 918 N.E.2d 750, 755 (Ind.Ct.App.2009). Instead, we consider conflicting evidence in the light most favorable to the trial court's ruling. Id. Because a probation revocation proceeding is civil in nature, the State need only prove the alleged probation violation by a preponderance of the evidence. Holmes v. State, 923 N.E.2d 479, 485 (Ind.Ct.App.2010).
Upon the State's timely filing of a revocation petition, the trial court may revoke the person's probation if it finds that he has violated a condition of probation during the probationary period. Ind.Code § 35–38–2–3(a). “Probation may not be revoked for failure to comply with conditions of a sentence that imposes financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay.” Ind.Code § 35–38–2–3(g).
While the State has the burden to prove (a) that a probationer violated a term of probation and (b) that, if the term involved a payment requirement, the failure to pay was reckless, knowing, or intentional ... it is the defendant probationer's burden ... to show facts related to an inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should not be ordered.
Runyon v. State, 939 N.E.2d 613, 617 (Ind.2010).
According to Indiana Code Section 35–41–2–2(b), “a person engages in conduct ‘knowingly’ if, when he or she engages in the conduct, the person is aware of a ‘high probability’ that he or she is doing so.” Smith v. State, 963 N.E.2d 1110, 1113 (Ind.2012). In other words, to obtain a probation revocation, the State must demonstrate that Meek was aware of a high probability that he was not paying his weekly support obligation as ordered. “Because knowledge is a mental state of the actor, it may be proved by circumstantial evidence and inferred from the circumstances and facts of each case.” Id.
Meek admitted at the revocation hearing that he violated a term of his probation by not paying child support as ordered. His testimony clearly demonstrates that he knew that he was not making full or any payment most weeks. Nevertheless, he maintains that he made a bona fide effort but was simply unable to meet his support obligation. He is thirty-one years old and does not have physical limitations that would prevent him from holding down a factory job. At the hearing, he testified that he had been briefly employed with three different companies during the six months since he was released from jail but that he was discharged from the first one after just two weeks due to his felony theft record, he was downsized from the second one after about six weeks, and he was currently employed at the third one (for one week). See Def. Ex. A (verification from Malone Staffing concerning his work assignment at Hisada America as of April 8, 2014). He testified that he had submitted applications to several companies and continued to check with employment agencies for updates. However, he did not produce any documentation to verify these efforts.
Meek admitted the following with respect to jobs, education, and finances:
With respect to his current job and household financial situation, Meek testified as follows:
To continue reading
Request your trial