ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Wade James Hornbacher
Ian Mclean
Deputies Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Dec 08 2010, 3:22 pm
Indiana Supreme Court
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 57S04-1006-CR-317
DANNIE RAY RUNYON, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the Noble Circuit Court, No. 57C01-0510-FC-71
The Honorable G. David Laur, Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 57A04-0910-CR-575
_________________________________
December 8, 2010
Dickson, Justice.
This appeal challenges the trial court's revocation of probation for failure to pay child
support. The Court of Appeals affirmed. Runyon v. State, 923 N.E.2d 440 (Ind. Ct. App. 2010).
We granted transfer to clarify the applicable burden of proof. On the facts of this case, we affirm
the trial court's decision to revoke probation and reinstate a significant portion of the original
sentence.
Convicted of Nonsupport of a Dependent Child, a class C felony, and owing more than
$15,000 in child support arrearages, the defendant was sentenced to eight years imprisonment,
but the sentence was suspended to probation. Among the terms of probation, the defendant was
required to pay a monthly probation user fee, $160 in court costs, $100 for his public defender,
weekly payments as determined by his probation officer on his $19,063.50 child support arrea-
rage, and the ongoing court ordered child support.
One year later, the defendant's probation officer filed a report alleging a probation viola-
tion for failure to pay various costs including child support in accordance with the terms of pro-
bation. The record reflects that a hearing was conducted to implement an agreed disposition.
This hearing began with the following statement by the defendant's attorney:
Your Honor, after discussions with the State and Mr. Runyon, Your Honor, he's going to
enter an admission to date. [H]e believes he has employment. So what we're going to do
is set this matter over, we'll try to get it back as quickly as possible, a couple weeks Your
Honor. And if he can come in and provide proof that he has a job the State is going to be
willing to allow him to be reinstated in probation. In the event that he isn't, Your
Honor, then, we'll go forward with disposition.
Tr. at 39. After the defense counsel informed the trial court that the defendant was "ready to go
if you want to take the admission right now," the court asked the defendant, "And it is your intent
to admit you violated your probation?" Id. at 39–40. The defendant replied "Yes." Id. at 40.
After advising the defendant of the consequences of admitting a probation violation, the court
asked the defendant, "So the admission [is] of your own free and voluntary act and . . . you do
wish to admit you violated your probation?" Id. at 41. The defendant replied "Yes sir." Id. The
trial court then continued the disposition hearing for two weeks to enable the defendant to pro-
vide proof of employment, but the defendant failed to provide such proof. During this disposi-
tion hearing, when asked by the court whether he had made "all the payments you were supposed
to make during that time," the defendant answered, "No I didn't have any money. Like I say, I
signed up for my unemployment and the State took it." Id. at 52. At the conclusion of the dispo-
sition hearing, the court announced its decision to revoke probation and ordered the defendant to
serve six years of the original eight-year sentence, but stated "if some substantial payment is, is
made, some job is, obtained, . . . I guess we can look at this again under some motion to modify."
Tr. at 59.
The defendant expressly "concedes he violated the terms of his probation by failing to
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meet his child support obligations" and further "concedes he violated the terms of his probation
by failing to pay $160 in court costs . . . and $560 in probation user fees" when due. Appellant's
Br. at 7. He argues, however, that "the record establishes his failure to pay his child support,
court costs, and probation user fees was not reckless, knowing or intentional." Id. at 8.
A person's probation may be revoked if "the person has violated a condition of probation
during the probationary period." Ind. Code § 35-38-2-3(a)(1). To obtain a revocation of proba-
tion, "[t]he state must prove the violation by a preponderance of the evidence." Ind. Code § 35-
38-2-3(e). It is further provided that "[p]robation may not be revoked for failure to comply with
conditions of a sentence that imposes financial obligations on the person unless the person reck-
lessly, knowingly, or intentionally fails to pay." Ind. Code § 35-38-2-3(f).
As provided by Indiana's statutory scheme, probation may be revoked for violation of a
probation condition but, for violations of financial conditions, only if the probationer recklessly,
knowingly, or intentionally fails to pay. As to the fact of violation, the statute expressly imposes
the burden of proof upon the State. But with respect to the ability to pay, the burden of proof is
not explicitly designated. Where the claimed violation is that the probationer failed to comply
with financial conditions of probation, the trial court must be convinced both that the condition
was violated and that the failure to pay was reckless, knowing, or intentional. Because proof of
both of these components is required before a trial court may revoke probation, we hold that it is
the State's burden to prove both the violation and the requisite state of mind in order to obtain a
probation revocation. We further observe that, because the phrase "recklessly, knowingly, or
intentionally" appears in the disjunctive and thus prescribes alternative considerations, the state
of mind requirement may be satisfied by adequate evidence that a defendant's failure to pay a
probation imposed financial obligation was either reckless, knowing, or intentional.
For a trial court to revoke probation and reinstate part or all of a defendant's remaining
sentence, however, more may be required beyond satisfaction of the statutory components of (a)
a probation condition violation and (b) reckless, knowing, or intentional state of mind. In Bear-
den v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), the United States Su-
preme Court held:
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[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must
inquire into the reasons for the failure to pay. If the probationer willfully refused to pay
or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the
court may revoke probation and sentence the defendant to imprisonment within the au-
thorized range of its sentencing authority. If the probationer could not pay despite suffi-
cient bona fide efforts to acquire the resources to do so, the court must consider alterna-
tive measures of punishment other than imprisonment. Only if alternative measures are
not adequate to meet the State's interests in punishment and deterrence may the court
imprison a probationer who has made sufficient bona fide efforts to pay.
Id. at 672, 103 S. Ct. at 2073, 76 L. Ed. 2d at 233. The Court in Bearden did not specify which
party has the burden of proving facts related to a probationer's ability to pay. We do not believe
this issue was resolved by the Court's use of the phrase, "a sentencing court must inquire into the
reasons for the failure to pay." Id. Because the facts in Bearden reveal that the probationer had
no income or assets during the relevant period and had notified the probation office that he could
not find a job following being laid off, the quoted phrase appears to direct courts to "consider"
this issue rather than directing them to sua sponte initiate such inquiry.
In its consideration of the defendant's appeal, the Court of Appeals treated inability to pay
as an affirmative defense and imposed the burden of proving it upon the defendant. Runyon, 923
N.E.2d at 446. This creates an inconsistency with Szpunar v. State, 914 N.E.2d 773, 779 (Ind.
Ct. App. 2009), which held that the State has the burden of proving a probationer's ability to pay.
In Woods v. State, 892 N.E.2d 637 (Ind. 2008), this Court recognized that a probationer
who admits the allegations of probation violation must still be given an opportunity to explain or
to offer mitigating evidence to show that the violation does not warrant revocation. Id. at 640.
The defendant in Woods appealed on grounds that the trial court refused "to allow him the op-
portunity to explain why he violated the terms of his probation." Id. We held that principles of
due process require that a probationer "be given the opportunity to explain" and that the trial
court erred by excluding such evidence. Id. at 641. But we affirmed the revocation of probation
and imposition of twelve years of imprisonment because the defendant made no offer of proof to
inform the trial court why he was "deserving of further consideration." Id. In effect, therefore,
Woods imposed upon the defendant the burden of showing his inability and sufficient bona fide
efforts to pay.
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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, know-
ing, or intentional, we hold that it is the defendant probationer's burden, consistent with the result
in Woods, 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.
In the present case, the probation revocation hearing proceeded in two segments. At the
first segment, the defendant's attorney informed the trial court of an agreement in which the de-
fendant agreed to admit the alleged probation violation and would be afforded two weeks to pro-
vide verification of an alleged offer of employment after which he would be reinstated to proba-
tion. The defendant expressly admitted to the trial court that he had violated his probation condi-
tions and that he failed to make the required payments. This was sufficient to establish by a pre-
ponderance of the evidence that the defendant violated conditions of his probation and that his
failure to pay was knowing, if not also intentional. The trial court granted the requested two-
week continuance. At the second segment of the probation revocation hearing, the defendant
asserted that he had a job offer but was unable to provide written verification of the offer. The
trial court then inquired about the nature of the work and anticipated earnings and questioned the
defendant as to his other resources and payments made as previously ordered by the court. The
defendant's attorney argued to the court that the defendant had paid approximately half of his ob-
ligation the prior year, had been unemployed "essentially in the past six months or so," and that
the defendant was not refusing to pay but was simply unable to find a job in the difficult market.
Tr. at 49. The defendant's counsel asked the court to "not completely revok[e] the entire proba-
tion," to impose only a relatively short period of incarceration, and to give him an opportunity to
seek work and "get child support paid." Id. at 50. The trial court questioned the defendant about
his failure to make the required payments during the four to five months he was employed before
being laid off and asked the defendant about various other resource possibilities. At the conclu-
sion of the hearing, the court stated:
I am going to revoke your probation at this point. And I am going to . . . give you some
credit for having come in and admitted. And I'm going to order you to serve six years of
that sentence. . . . [S]how the arrearage at $25,283.41. [I]f some substantial payment is,
is made, some job is obtained, [defense counsel] will let us know, and I guess we can
look at this again under some motion to modify. But for today I don't have any of those
things, so you go to the Department of Corrections. Good luck.
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Id. at 58–59.
The trial court afforded the defendant an opportunity to present facts and explanation re-
garding his alleged resources, employment circumstances, inability to pay, and efforts to make
the required payments. The defendant was not deprived of an opportunity to explain or present
mitigating evidence. He was not prevented from presenting argument seeking a lenient judicial
response to the admitted violations of his conditions of probation.
The defendant further argues on appeal that the trial court was unduly harsh under the
circumstances in ordering the defendant to serve six years of his eight-year sentence for his pro-
bation violation. He urges that a shorter period of incarceration would have been more appropri-
ate in light of the defendant's financial circumstances and would permit him to be gainfully em-
ployed so as to reduce the support arrearage.
"Probation is a matter of grace left to trial court discretion, not a right to which a criminal
defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). "Once a trial court has
exercised its grace by ordering probation rather than incarceration, the judge should have consi-
derable leeway in deciding how to proceed." Id. A trial court's probation decision is subject to
appellate review for abuse of discretion "where the decision is clearly against the logic and effect
of the facts and circumstances." Id.
We decline to find the trial court's decision to require the defendant to serve six years of
the eight-year sentence to be an abuse of discretion. We also note the judge's compassionate in-
vitation for the defendant to seek a future modification after making substantial payment on the
obligations or possibly upon obtaining the promise of employment.
The judgment of the trial court is affirmed.
Shepard, C.J., and Rucker, and David, JJ., concur. Sullivan, J., dissents with separate opinion.
6
Sullivan, Justice, dissenting.
I agree with the Court’s discussion of the allocation of the burden of proof in such pro-
ceedings, but I respectfully dissent both from its conclusion that the State met its burden and
from its conclusion that Runyon did not.
First, I do not agree that the State met its burden of proving that Runyon’s failure to pay
was “reckless, knowing, or intentional” simply because he admitted that he had violated his pro-
bation conditions and failed to make the required payments.
Second, I believe Runyon sufficiently established his inability to pay. He explained that
his failure was a result of job loss in the recreational vehicle industry, inability to obtain new
employment in the difficult economic environment, and extremely low wages when he had been
working. Despite his low-paying employment and periodic layoffs, he had managed to pay more
than half of his child support obligation in 2008. The record establishes that he had no ability to
pay his child support obligations in 2009, as he had been unemployed and receiving minimal un-
employment benefits.
While I agree that Runyon was out of compliance with the terms of his probation, I do
not believe that it was lawful to order incarceration on these facts.