For over twenty years we have protected people accused of probation violations throughout the state. When someone has been placed on probation it is most often the result of a conviction as a result of a plea agreement. Unlike the former plea hearing proceeding, in Indiana the procedure for determining a probation violation is significantly different.
As would have been expressed when entering into a plea agreement, should a judge reject such an agreement all rights and admissions in putting forward such a plea would be inadmissible against a criminal defendant, with all former rights restored. However, when in court on a probation violation, an Indiana judge is given far more authority to sentence if a violation is determined.
In determining whether a probation violation has occurred, one must be versed in the reality that the legal standard of proof to determine a violation is less than that used to convict on the underlying offense. For example, if one has been convicted of Theft, the prosecutor would be required by law to prove the Defendant’s guilt, “Beyond a Reasonable Doubt.” Once found guilty and put on probation for that offense, the standard to determine whether the Defendant has been fulfilling the obligations of any terms of the probation is far less.
Upon a probation officer’s determination that a probationer has not fulfilled a designated term(s) of required probation, a notice of probation violation is filed with the court. At that time, the probationer Defendant can be arrested with what is called a “no bond” hold if requested by the prosecutor, usually in consultation with the probation officer. This no bond hold effectively means that the probationer would remain in jail pending the outcome of violation proceedings.
The court, after reviewing the position of the prosecutor, has the ability to issue a summons (a mailed notice of scheduled violation hearing) instead of a warrant. A middle ground way of securing the probationer’s attendance to answer to a potential violation is for the Defendant to be given the opportunity to post bond while such a case is pending with the court.
Once in court to answer the allegations, the Defendant must be made aware that the legal standard of guilt for the violation is guilt by “a preponderance of evidence,” or in other words, “more likely than not.” This standard is far easier for a prosecutor to meet than the beyond reasonable doubt legal standard to secure the underlying conviction.
In Indiana when a plea agreement is submitted to the court for consideration, should the judge reject the plea proposal all of the Defendant’s rights are restored with nothing the Defendant has admitted to held against him or her. A judge must accept a plea agreement in its entirety and cannot alter the terms. This is not the case within a probation violation hearing.
It is crucial for a Defendant probationer to understand that when making an admission to a probation violation in Indiana, the judge has the authority to determine the ultimate punishment. This is so despite any “agreed recommendation” that may be put forth between defense counsel, prosecutor and probation officer.
As a result, it is vitally important that the Defendant probationer fully comprehend that the legal protections given to Defendant’s within plea proceedings do not always exist when attempting to resolve a probation violation.
Although a judge will usually accept the agreed recommendation of the parties, this is not always the case. Should the defense lawyer hold the belief that a judge may disregard a proposed agreement worked out between the parties, all actions must be taken to consider challenging the alleged violation or determining whether any possibility exists for the dismissal of the pending allegations prior to an evidentiary hearing (trial on the probation violation without a jury).