NOT FOR PUBLICATION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

MEMORANDUM DECISION

BROWN, Judge.

Leonard Abshier, III, appeals the revocation of his probation. Abshier raises one issue which we revise and restate as whether the evidence is sufficient to support the revocation of his probation. We affirm.

FACTS AND PROCEDURAL HISTORY

On June 25, 2009, the State charged Abshier with Count I, nonsupport of a dependent child as a class C felony; and Count II, nonsupport of a dependent child as a class D felony. On October 26, 2009, Abshier and the State entered into a plea agreement (the "Plea Agreement") whereby Abshier agreed to plead guilty to two counts of nonsupport of a child as class D felonies. The Plea Agreement also specified that Abshier agreed to be sentenced to two years in the Department of Correction ("DOC") on Count I in which the first six months would be served on work release and the balance suspended to probation, as well as two years suspended to probation on Count II, and that the sentences would be served consecutively. The Plea Agreement also indicated that the class D felonies would be converted to class A misdemeanors if Abshier successfully completed the sentence including certain specified conditions, including the following:

Appellant's Appendix at 29-30. That same day, the court accepted the Plea Agreement, entered judgment, and sentenced Abshier in accordance with the agreement. The court's order of probation contained, as Condition 18, that Abshier pay $75 per week to the child support account in Cause No. 1553 and $25 per week to the child support account in Cause No. 321. It also stated, as Condition 8, that Abshier shall "[s]upport dependents and meet other family responsibilities." Id. at 24.

On April 14, 2010, the Vanderburgh Probation Department filed a petition to revoke Abshier's probation alleging that he violated Condition 18 of the court's order. That same day, the court held a hearing on the petition to revoke in which Abshier appeared and admitted the allegation. The court took the petition under advisement at the request of Abshier's probation officer, Cherie Wood, and the court advised Abshier to "get a job and make payments on his child support." Id. at 11.

The court held hearings on the matter on December 8, 2011, February 2, 2012, February 16, 2012, August 23, 2012, December 27, 2012, February 7, 2013, and April 11, 2013. At the hearings, the court was apprised of Abshier's efforts at obtaining employment and the status of payments made and the current arrearage, and at each juncture the matter was continued in order to allow Abshier to continue seeking steady employment and to begin making regular payments in accordance with the order of probation. The court held another hearing on June 6, 2013, at which Probation Officer Janice Wade stated that Wood reported "the last payments were made 20 [sic], April 11, and February 4th for $150.00 each on the one case, and those same dates for $50.00 each on another case. The total arrearage is still $68,140.49. Today is technically his out date from probation. He owes $1,444.00 in fees." Transcript at 83. Wade noted that the revocation petition had "been pending for close to three years," and the court then stated to Abshier that he is "going to have to make some significant progress. We're not going to take you off probation until you've made some real progress." Id. Wade also stated that, when the revocation petition was filed in April of 2010, Abshier's arrearage was $63,112.38, that the arrearage was not going down which she found to be "significant," and that "there should be some type of sentence imposed." Id. at 86. The court decided to "set it off for progress," which it similarly decided to do at a hearing on July 18, 2013. Id. at 90.

The court held another hearing on Abshier's probation revocation on September 26, 2013, at which the prosecutor stated, regarding petitions to revoke for nonsupport of a dependent, that "[t]he approach we're taking now is if we file these and they don't pay, we expect them to go to jail." Id. at 101. The court found Abshier indigent, appointed a public defender, and set the next hearing date for October 10, 2013. On October 10, 2013, the State requested an evidentiary hearing be set on the petition to revoke regarding Abshier's ability to make payments.

On December 5, 2013, the court held a hearing at which Wood testified that Abshier received and read the rules governing his probation. Wood testified that Abshier failed to comply with Conditions 8 and 18 regarding the court's order of probation, noting that he had made some payments but had not been making full payments. Wood indicated that she assisted Abshier in attempting to find work and that he followed her suggestions regarding seeking employment. Abshier testified that the nonsupport convictions stem from a divorce in 1993, that four children are involved, and that the children's ages at the time of the hearing range from twenty-one to twenty-four years old. Abshier testified that his driver's license and commercial driver's license were suspended for delinquent child support. He also testified that he has had trouble finding employment during the probationary period due to his felony convictions and suspended driver's license, and that he worked for his mother for a period of time doing stump grinding and tree trimming and removal. On cross-examination he testified that he had never spoken with a prosecutor regarding the removal of his driver's license suspension, and admitted that he had not made the required payments. The court took the matter under advisement.

On December 12, 2013, the court held a hearing in which it stated as follows:

Id. at 146-147. The court revoked Abshier's probation and ordered him to serve ninety days of his previously-suspended sentence.

DISCUSSION

The issue is whether the evidence is sufficient to support the revocation of Abshier's probation. Probation is an alternative to commitment in the Department of Correction, and it is at the sole discretion of the trial court. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh'g denied. A defendant is not entitled to serve a sentence in probation. Id. Rather, probation is a "matter of grace" and a "conditional liberty that is a favor, not a right." Id. Probation revocation is governed by Ind. Code § 35-38-2-3. A probation revocation hearing is civil in nature, and the State need only prove the alleged violations by a preponderance of the evidence. Cox, 706 N.E.2d at 551. We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses. Id. If there is substantial evidence of probative value to support the trial court's conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation. Id. The violation of a single condition of probation is sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).

At the time Abshier was placed on probation, Ind. Code § 35-38-2-3(a) provided: "The court may revoke a person's probation if: (1) the person has violated a condition of probation during the probationary period . . . ." Ind. Code § 35-38-2-3(a) (Supp. 2008) (subsequently amended by Pub. L. No. 106-2010, § 11 (eff. July 1, 2010); Pub. L. No. 147-2012, § 10 (eff. July 1, 2012)).1 Also, Ind. Code § 35-38-2-3(f) provided: "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."2

Abshier argues that Wood testified he "was making an effort to comply with the rules of probation, obeyed all orders given by [her], and that [she] had exhausted all of her options to get [Abshier] employment." Appellant's Appendix at 24. He argues that his case is analogous to the case of Smith v. State, 963 N.E.2d 1110 (Ind. 2012), in which the Indiana Supreme Court held that the defendant did not meet his burden of proving inability to pay, and he argues that unlike in Smith "all of the evidence presented . . . was that [he] had made payments throughout the case sporadically, and had complied with all efforts of the probation department and sought out all available resources to find employment to be able to make the payments." Id. at 32. The State argues that Abshier's "express admission of his probation violation and failure to pay child support is sufficient to establish that he violated probation by knowingly failing to make the required payments." Appellee's Brief at 7. The State maintains that the trial court correctly revoked Abshier's probation where it "acknowledged that [Abshier] had made efforts toward finding employment and that he had made some payments although not always complete payments" and that "even when [Abshier] was employed, he did not always make payments." Id. at 8.3

The Indiana Supreme Court, in Runyon v. State, 939 N.E.2d 613 (Ind. 2010), assigned the burden of proving that a condition of a defendant's probation had been violated, and the state of mind requirement for violations of financial conditions that such failure to pay was reckless, knowing, or intentional, to the State. 939 N.E.2d at 616. The Court in that case held that where "[t]he defendant expressly admitted to the trial court that he had violated his probation conditions and that he failed to make the required payments," such admission "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." Id. at 617. The Court also observed that where a probation violation is based on failure to pay a fine or restitution, "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," and noted the following:

Id. at 616 (quoting Bearden v. Georgia, 461 U.S. 660, 672 103 S.Ct. 2064, 2073 (1983)). The Court assigned the burden of showing "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" to the defendant probationer. Id. at 617.

In Runyon, the defendant probationer had been convicted of nonsupport of a dependent as a class C felony for owing more than $15,000 in child support arrearages and was sentenced to eight years suspended to probation. Id. at 615. Among the conditions of the defendant's probation were that he "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 arrearage, and the ongoing court ordered child support." Id. One year later, the defendant's probation officer filed a report alleging a probation violation for failure to pay various costs including child support in accordance with the terms of probation, and at the outset of the hearing the defendant admitted to the probation violation. Id. The court then continued the disposition hearing for two weeks "to enable the defendant to provide proof of employment . . . ." Id. The Court observed the following from the second hearing:

Id. at 617-618. The Court held that "[t]he trial court afforded the defendant an opportunity to present facts and explanation regarding his alleged resources, employment circumstances, inability to pay, and efforts to make the required payments," that he "was not deprived of an opportunity to explain or present mitigating evidence," and that "[h]e was not prevented from presenting argument seeking a lenient judicial response to the admitted violations of his conditions of probation." Id. at 618.

Abshier suggests that the Indiana Supreme Court's recent case of Smith v. State requires this court to reverse his probation revocation. In Smith, defendant probationer Smith was placed on probation with the following conditions, among others: "that Smith `shall pay current support every week in the amount of $78.79 as modified from time to time'; and [] that Smith `shall pay an additional $16.00 weekly on the arrearage.'" 963 N.E.2d at 1111 (footnote omitted). Smith remained current on his weekly payments for about seventeen months, but at one point he began making "only partial payments on his support and arrearage," and at various times he made no payments. Id. Smith's probation officer filed a petition to revoke, and the court ultimately revoked his probation and ordered him to serve the remainder of a three-year sentence. Id. at 1112. On transfer, the Court affirmed the trial court's revocation, holding based upon Runyon that it is the probationer's burden to prove inability to pay and indicate sufficient bona fide efforts to pay and that Smith failed to carry his burden. Id. at 1114. The Court found that "Smith made no explicit argument concerning his inability to pay support." Id. It also noted that, based on its review of the record, "Smith was employed during part of the time between November 2008 and December 2009" and that "Smith's own testimony revealed that even when he was employed full time he did not make his regular support payments." Id.

We do not find that the Court's pronouncements in Smith compel reversal. Here, following Abshier's admission of his violation in April 2010, the trial court held a number of hearings between December 8, 2011, and December 5, 2013, in which Abshier updated the court of his efforts to obtain employment and his payment status. At the December 5, 2013 revocation hearing, Abshier testified specifically that he had been working with his mother in a stump grinding and tree trimming and removal business in which he specifically testified that they "usually get about . . . 6 to 10 jobs a week on average when the summertime is here" and that "[i]t's tinkered off really bad here in the last month or so." Transcript at 126. The court, in ordering that Abshier serve ninety days of his previously-suspended sentence, stated:

Id. at 146-147. Based on the record and the court's comments we conclude that Abshier has not met his burden regarding his inability to pay and that the evidence was sufficient to support his probation revocation.

CONCLUSION

For the foregoing reasons, we affirm the revocation of Abshier's probation.

Affirmed.

BARNES, J., and BRADFORD, J., concur.