Vaidik, C.J.
Gerald Mauch pled guilty to Class D felony theft and was sentenced to three years of probation. As a condition of his probation, he was ordered to pay $102,444.84 in restitution by the end of his probation. The probation department later filed a petition to revoke his probation because he failed to pay the balance. The trial court found that Mauch knowingly, intentionally, and willfully failed to pay his $102,444.84 restitution because he failed to apply for and obtain a reverse mortgage on his home—an asset deemed sufficient to cover his restitution.
Mauch now appeals, arguing that the trial court abused its discretion in revoking his probation. … We find that Mauch has met this burden. That is, in order to obtain a reverse mortgage on his home to pay his restitution, Mauch needed the consent of his wife, and she refused to consent. In addition, Mauch is seventy-six years old and suffers from several health issues, such as being blind in one eye, having neuropathy in his fingers, difficulty standing and walking, and inability to sleep in a bed, all of which affect his ability to get a job. We therefore reverse the trial court.
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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). Probation, however, may not be revoked for failure to comply with “conditions of a sentence that impose[] financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay.” Ind. Code § 35-38-2-3(g).
The Indiana Supreme Court recently addressed who bears the burden of proving the defendant’s inability to pay. See Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010). The Court held that although the State bears the burden of proving that (1) a defendant violated a term of probation involving a payment requirement and (2) the failure to pay was reckless, knowing, or intentional, the defendant bears 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. Id. at 617.
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Here, the record shows that Mauch is seventy-six years old and suffers from many health problems that impact his ability to work. In addition, his sole source of income is his monthly social-security check for $1,134.00. Mauch testified that he had inquired into several mortgage companies, such as Quicken Loans, Maverick Funding Corp., and American Advisors Group, but was told that he would be unable to take out a reverse mortgage without the consent of his wife. Tr. p. 93, 95; Def.’s Ex. A. Barbara testified that upon the advice of an attorney, she would not consent to a reverse mortgage. [Footnote omitted.] Tr. p. 104. Mauch made the required monthly restitution payments—$75.00 a week while employed and $100.00 a month while unemployed—except for the few months when he was hospitalized and received home health care. Appellant’s App. p. 52; Tr. p. 83. And he continued to make the $100.00 monthly payment between the final and status hearings. Despite the court’s finding that Mauch’s testimony was not credible, there is no indication in the record that he could get a mortgage without Barbara’s consent or that he had other funds to pay the balance. We find that Mauch has made a sufficient showing of his inability to pay and bona fide efforts to pay. Accordingly, the trial court abused its discretion in revoking Mauch’s probation.
Reversed.
Kirsch, J., and Bradford, J., concur.
Gerald Mauch pled guilty to Class D felony theft and was sentenced to three years of probation. As a condition of his probation, he was ordered to pay $102,444.84 in restitution by the end of his probation. The probation department later filed a petition to revoke his probation because he failed to pay the balance. The trial court found that Mauch knowingly, intentionally, and willfully failed to pay his $102,444.84 restitution because he failed to apply for and obtain a reverse mortgage on his home—an asset deemed sufficient to cover his restitution.
Mauch now appeals, arguing that the trial court abused its discretion in revoking his probation. … We find that Mauch has met this burden. That is, in order to obtain a reverse mortgage on his home to pay his restitution, Mauch needed the consent of his wife, and she refused to consent. In addition, Mauch is seventy-six years old and suffers from several health issues, such as being blind in one eye, having neuropathy in his fingers, difficulty standing and walking, and inability to sleep in a bed, all of which affect his ability to get a job. We therefore reverse the trial court.
….
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). Probation, however, may not be revoked for failure to comply with “conditions of a sentence that impose[] financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay.” Ind. Code § 35-38-2-3(g).
The Indiana Supreme Court recently addressed who bears the burden of proving the defendant’s inability to pay. See Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010). The Court held that although the State bears the burden of proving that (1) a defendant violated a term of probation involving a payment requirement and (2) the failure to pay was reckless, knowing, or intentional, the defendant bears 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. Id. at 617.
….
Here, the record shows that Mauch is seventy-six years old and suffers from many health problems that impact his ability to work. In addition, his sole source of income is his monthly social-security check for $1,134.00. Mauch testified that he had inquired into several mortgage companies, such as Quicken Loans, Maverick Funding Corp., and American Advisors Group, but was told that he would be unable to take out a reverse mortgage without the consent of his wife. Tr. p. 93, 95; Def.’s Ex. A. Barbara testified that upon the advice of an attorney, she would not consent to a reverse mortgage. [Footnote omitted.] Tr. p. 104. Mauch made the required monthly restitution payments—$75.00 a week while employed and $100.00 a month while unemployed—except for the few months when he was hospitalized and received home health care. Appellant’s App. p. 52; Tr. p. 83. And he continued to make the $100.00 monthly payment between the final and status hearings. Despite the court’s finding that Mauch’s testimony was not credible, there is no indication in the record that he could get a mortgage without Barbara’s consent or that he had other funds to pay the balance. We find that Mauch has made a sufficient showing of his inability to pay and bona fide efforts to pay. Accordingly, the trial court abused its discretion in revoking Mauch’s probation.
Reversed.
Kirsch, J., and Bradford, J., concur.