Rush, Goff publish dissent on poverty as probation violation

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The Indiana Lawyer on January 16, 2019 by Katie Stancombe

A split Indiana Supreme Court denied a petition to transfer a homeless man’s probation violation appeal, with two justices writing in a published dissent that the litigant was an indigent man incarcerated for probation violations that resulted from his poverty, not his intentions.

Chief Justice Loretta Rush and Justice Christopher Goff both dissented from the majority’s denial of Timothy D. Martin v. State of Indiana, 29A04-1712-CR-02992 in a Tuesday order. Timothy Martin was convicted of three counts of child molestation and served 14 years in the Department of Correction before being released on probation, which included special conditions related to his status as an adult sex offender.

Nine months after his release, Martin admitted to violating probation when he failed to provide written verification demonstrating his completion of required evaluations and programs. Martin then successfully completed an additional two years in the DOC while simultaneously working at a fast-food restaurant. He owed more than $3,500 in court fees, had no driver’s license and was homeless. Martin eventually lost his job for lack of ability to pay for transportation, and he was ordered in violation of failing to pay for and attend four required sex offender counseling sessions. The state further claimed he owed more than $300 for the counseling.

Although he later obtained a new job and reliable transportation to attend work and his counseling sessions, a trial court denied Martin’s request to remain on probation and ordered him to serve the remaining four years of his previously suspended sentence at the DOC.

“Are additional procedural safeguards necessary to ensure that indigent Hoosiers aren’t incarcerated for probation violations that result simply from their poverty? Yes — and it’s imperative that this Court explicitly establish those protections. Today, however, this Court declines to do so, and I thus respectfully dissent from the denial of transfer,” the chief justice wrote.

“The trial court premised its revocation decision on Martin’s failure to participate in counseling. But Martin could participate in counseling only if he paid the fees for it — and payment was an explicit requirement listed within his probation conditions,” Rush wrote in dissenting from the majority. “Martin’s unequivocal position was that he could not restart counseling until he had enough money for those fees. So, it seems the trial court may have incarcerated Martin simply because he couldn’t meet a probation condition ‘that impose[d] financial obligations’ on him.”

Rush noted that the record was unclear as to whether the trial court believed Martin did, in fact, have financial resources to pay for counseling or, if not, whether an alternative to incarceration was inadequate.

“To be sure, this incomplete record hinders our appellate review,” she wrote. “… Despite relying on others for transportation to and from his job at Wendy’s, he was able to maintain employment for a time while looking for a long-term place to live. But by moving to escape homelessness, Martin lost his job and had no money to pay for his counseling sessions.”

“This is not to say that Martin’s probation conditions were unfair, or that the State was wrong in filing an information of violation. But Section 35-38-2-3(g) and (Bearden v. Georgia, 461 U.S. (1983)) protect against revoking probation simply because an indigent defendant can’t meet a condition’s imposed financial obligation,” Rush continued. “In cases that implicate both Section 35-38-2-3(g) and Bearden, as here, limited additional findings are the appropriate procedural safeguards to ensure that indigent defendants don’t end up incarcerated just because they’re poor.”

In an Indiana Court of Appeals decision, Judge Margret G. Robb similarly dissented from the appellate majority, arguing in a 15-page dissent in a memorandum decision that Martin’s case qualified under Indiana Code section 35-38-2-3(g).