Smith v. State

• Decision Date: 22 June 2011
• Docket Number: No. 35A02–1008–CR–996.,35A02–1008–CR–996.
• Citation: 945 N.E.2d 740
• Parties: Troy R. SMITH, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

945 N.E.2d 740

Troy R. SMITH, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 35A02–1008–CR–996.

Court of Appeals of Indiana.

March 23, 2011.Transfer Granted June 22, 2011.

Matthew G. Grantham, Bowers, Brewer, Garrett & Wiley, LLP, Huntington, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

Troy R. Smith appeals the trial court's revocation of his probation for failure to pay child support weekly, a condition of his probation. On appeal, he raises one issue which we restate as two: whether the State satisfied its burden, if any, to prove 1) Smith's failure to pay was reckless, knowing, or intentional; or 2) his ability to pay. Concluding the State bears the burden to prove Smith recklessly, knowingly, or intentionally failed to pay his child support weekly, that proving such requires Smith's ability to pay, and that the State failed to satisfy its burden, we reverse.

Facts and Procedural History ¹

On May 22, 2007, Smith pleaded guilty to non-support of a dependent child, a Class D felony, and on June 26, 2007, he received a three-year prison sentence that was suspended on the probationary condition that he pay child support weekly. His child support obligation at that time was $78.79 per week.

For the period of June 26, 2007 to November 23, 2008, Smith remained current in his payments and also made payments toward his arrearage, paying $114.79 weekly. A trial court increased his child support obligation in late November 2008 to $124 per week. After the modification, Smith continued to pay in the same amount, $114.79 per week. The record is unclear as to whether he received notice of the increase and when his payments ceased to be automatically deducted from his paychecks. Neither his notice of an increase nor the consciousness of his payment were issues at the revocation hearing and are not issues on appeal. His payments were sparse from April to July 2009 and were consistent for the last time in August and September 2009.

At some point Smith began to make payments deliberately—that is, not via automatic deductions from his paycheck or tax intercepts. Smith's payment history reveals his account was credited with at least two tax intercepts, valued at $1,520 and $1,054. And aside from the consistent payments of $114.79 when he should have been paying $124, his payment history includes other partial payments as well. For example, he made one payment of $15 and several of about $40 in May 2009, September 2009, and his final payment on December 16, 2009.

On March 8, 2010, Smith's probation officer filed a petition to revoke Smith's probation for failure to make his payments weekly, and on August 10, 2010, the trial court held an evidentiary hearing.

At the August 10, 2010 hearing, Smith did not explicitly admit he had fallen behind in his payments. Cf. Appellant's Brief at 9 (“Smith did not dispute that he had not paid his support....”). Rather, he explained his several serious health conditions and treatments, including back surgery, which led to loss of his job as a truck driver in August 2009. He received the majority, if not all, of these medical treatments at a free health clinic. Smith also testified he had no other source of income, from August 2009 to August 2010 he submitted approximately seventy-five job applications to no avail, he had no health insurance, and he was seeking disability benefits. According to his medical records entered into evidence, some of his health problems began prior to him losing his job and continued long after. At the hearing, Smith and the State addressed the extent to which his health affected his ability to seek or secure an income, but only after he lost his job. Neither the State nor Smith explicitly addressed his ability to pay or the extent to which his health may have affected his ability to pay prior to losing his job.

The trial court concluded that even if Smith lost his job in August 2009 and subsequently had no other income as he claimed, his failure to make regular payments while employed from April 2009 to August 2009 was sufficient to revoke his probation. The trial court revoked his probation and imposed the balance of his three-year prison sentence. Smith now appeals.

Discussion and Decision

I. Standard of Review

“Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment.” Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind.Ct.App.2006). Trial courts grant probation and set conditions, and may revoke it if those conditions are violated. Id.

Because revocation of probation is in the nature of a civil proceeding, the State must prove an alleged violation only by a preponderance of the evidence. Ind.Code § 35–38–2–3(e). On appeal we do not reweigh the evidence or judge the credibility of witnesses, and we look only to the evidence that supports the judgment and any reasonable inferences flowing therefrom. Baxter v. State, 774 N.E.2d 1037, 1044 (Ind.Ct.App.2002), trans. denied.

We review a trial court's decisions in a probation revocation proceeding for an abuse of discretion. Woods v. State, 892 N.E.2d 637, 639 (Ind.2008). An abuse of discretion occurs if the decision misinterprets the law or is against the logic and effect of the facts and circumstances before the trial court. State v. Cozart, 897 N.E.2d 478, 483 (Ind.2008); Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007).

II. Revocation of Probation

A. Analytical Framework and Procedural Posture

A trial court may revoke a person's probation if “the person has violated a condition of probation during the probationary period....” Ind.Code § 35–38–2–3(a)(1). “The state must prove the violation by a preponderance of the evidence.” Ind.Code § 35–38–2–3(e). “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(f).

Probation revocation is a two-step process:

First, the court must make a factual determination that a violation of a condition of probation actually occurred. If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation. Indiana has codified the due process requirements ... by requiring that an evidentiary hearing be held on the revocation and providing for confrontation and cross-examination of witnesses by the probationer. When a probationer admits to the violations, the procedural safeguards ... and the evidentiary hearing are unnecessary. Instead, the court can proceed to the second step of the inquiry and determine whether the violation warrants revocation. However, even a probationer who admits the allegations against him must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation.

Woods, 892 N.E.2d at 640 (citations omitted).

On appeal, Smith argues “only that the evidence was insufficient to support the trial court's finding that a violation occurred,” referring to the first step. Appellant's Br. at 6.

In probation revocation cases involving payment of a financial obligation, implicating Indiana Code section 35–38–2–3(f), the State bears the burden to prove the fact of the violation, i.e., less than full payment, but the statute is unclear as to who bears the burden regarding the probationer's requisite mental state and ability to pay. Runyon v. State, 939 N.E.2d 613, 616 (Ind.2010). As an element of the offense, the State necessarily bears the burden to prove the requisite mental state, but Runyon reveals an indistinct relationship—at least at step two of the revocation process—between the requisite mental state and a probationer's ability to pay.

In Runyon, the probationer admitted his violation of probation in failing to pay child support, court costs, and probation user fees. Our supreme court stated:

The defendant expressly admitted to the trial court that he had violated his probation conditions and that he failed to make the required payments. This was sufficient to establish by a preponderance of the evidence that the defendant violated conditions of his probation and that his failure to pay was knowing, if not also intentional.

Runyon, 939 N.E.2d at 617. Woods states: “[w]hen a probationer admits to the violations .... the court can proceed to the second step of the inquiry and determine whether the violation warrants revocation [by giving the probationer] an opportunity to present evidence that explains and mitigates his violation.” 892 N.E.2d at 640.

Runyon and Woods involved probationers who admitted their violations, and accordingly the holdings therein that address step two of the revocation process do not control here, where Smith did not admit his violation, testified at length at an evidentiary hearing, and on appeal challenges the sufficiency of the evidence to revoke his probation in step one of the revocation process. In the same vein, although Runyon discusses who bears the burden of proof as to the probationer's ability to pay in step two of the proceedings, Runyon neither expressly limits consideration of the probationer's ability to pay to step two of the proceedings nor prohibits its consideration in step one. Therefore, while mindful of Runyon's guidance, we decide this case involving dissimilar facts based on distinct principles of law.

B. Partial Payments

At the outset, we decline to consider Smith's partial payments as knowing failures to pay that would establish violation of his probation. ² See Ind.Code § 35–41–2–2(b) (“A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.”). “[A]bsent an admission by the defendant, [his mental...