Leroy Butler v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 07 2017, 9:58 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Leroy Butler, April 7, 2017 Appellant-Defendant, Court of Appeals Case No. 73A01-1609-CR-2238 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable R. Kent Apsley, Appellee-Plaintiff Judge Trial Court Cause No. 73D01-1508-F2-8

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2238 | April 7, 2017 Page 1 of 4

Case Summary [1] After Leroy Butler was convicted of dealing in methamphetamine and

maintaining a common nuisance, the trial court sentenced him to eighteen

years in prison to be followed by a term of probation. On appeal, he argues that

the probation condition that he not enter any establishment that sells alcohol is

overbroad. We agree and remand for further proceedings.

Facts and Procedural History [2] In August 2015, Butler was arrested and charged with three felonies: dealing in

methamphetamine, possession of methamphetamine, and maintaining a

common nuisance. Following a jury trial, Butler was found guilty on all three

charges. At the sentencing hearing, Butler stated that he had a substance-abuse

problem, which began when he started drinking alcohol. The trial court merged

the possession and dealing charges and sentenced Butler to a total of twenty

years, with eighteen years to be served in the Indiana Department of Correction

and two years suspended to probation. Among the conditions for probation

was the following: “You will not consume alcohol. You will not visit a bar,

tavern, any place where alcoholic beverages are sold, bartered, or given away.”

Sent. Tr. p. 27. Butler appeals the imposition of that condition.

Discussion and Decision [3] Butler argues that the probation condition regarding alcohol is

unconstitutionally vague or overbroad. “Probation is a criminal sanction where Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2238 | April 7, 2017 Page 2 of 4

a convicted defendant specifically agrees to accept conditions upon his behavior

in lieu of imprisonment.” Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App.

2013), trans. denied. A trial court has broad discretion to impose conditions of

probation. Hevner v. State, 919 N.E.2d 109, 113 (Ind. 2010). The court’s

discretion is limited by the principle that the conditions imposed on the

defendant must be reasonably related to the treatment of the defendant and the

protection of public safety. Bratcher, 999 N.E.2d at 873. We will not set aside

conditions of probation unless the trial court abused its discretion. Patton v.

State, 990 N.E.2d 511, 514 (Ind. Ct. App. 2013). When a defendant challenges

the constitutionality of a probation condition, this Court evaluates that claim by

balancing the following factors: “(1) the purpose to be served by probation, (2)

the extent to which constitutional rights enjoyed by law-abiding citizens should

be enjoyed by probationers, and (3) the legitimate needs of law enforcement.”

Id. at 515 (citing McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007)).1 [4] In Collins v. State, the defendant argued that his probation condition that

restricted his access to businesses that sell sexual devices or aids was

unconstitutionally vague or overbroad. We held that the condition restricted

the defendant’s ability to visit businesses like drug stores and was unfairly broad

1 Butler also challenges the condition that he “not associate with any person of bad character or reputation. Anyone who’s likely to influence you to commit a crime.” Sent. Tr. p. 26. He argues that it is unconstitutionally vague or overbroad, but he fails to cite to any legal authority to support his argument. He also fails to provide an analysis under our law for determining whether this condition is unconstitutionally vague or overbroad. See Patton, 990 N.E.2d at 515. As such, he has waived this argument. See Ind. Appellate Rule 46(A)(8)(a).

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in its application. 911 N.E.2d 700, 714 (Ind. Ct. App. 2009), trans. denied.

Accordingly, we remanded for the trial court to provide clarification. [5] Butler’s challenged condition states, “You will not consume alcohol. You will

not visit a bar, tavern, any place where alcoholic beverages are sold, bartered, or

given away.” Sent. Tr. p. 27. Following the same logic as Collins, we conclude

that this probation condition is overbroad. While we agree with the trial court

that prohibiting Butler from consuming alcohol is reasonably related to his

rehabilitation, restricting Butler from entering any establishment where

alcoholic beverages are sold would prevent him from entering a grocery store,

convenience store, and drug store and is unfairly broad. Accordingly, we

remand so that the condition may be revised to prevent Butler from entering

establishments where alcohol is sold by the drink for consumption on the

premises or the business’ primary purpose is the sale of alcohol. This would

permit Butler to enter grocery stores, drug stores, and convenience stores while

still meeting the goals of probation. See Waters v. State, 65 N.E.3d 613 (Ind. Ct.

App. 2016) (holding that probation conditions should be narrowly tailored to

the rehabilitation of the defendant but still protect the public). The State

concedes that this remedy is appropriate. See Appellee’s Br. p. 12. [6] Remanded with instructions.

Bailey, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2238 | April 7, 2017 Page 4 of 4