                                                                                      FILED
                                                                                  Mar 20 2018, 9:41 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




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



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Dustin McCarty,                                           March 20, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                84A04-1707-CR-1599
              v.                                                Appeal from the Vigo Superior
                                                                Court
      State of Indiana,                                         The Honorable John T. Roach,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                84D01-1406-FD-1533



      Mathias, Judge.

[1]   Dustin McCarty was convicted in Vigo Superior Court of Class D felony

      battery by bodily waste and Class A misdemeanor resisting law enforcement.

      The trial court sentenced McCarty to two and one-half years with 290 days

      executed and the remainder suspended to probation. McCarty appeals and

      argues that the trial court erred by failing to provide him with written
      Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018                           Page 1 of 11
      conditions of probation at sentencing and by imposing conditions that are

      impermissibly vague and not reasonably related to his rehabilitation.


[2]   We reverse and remand for proceedings consistent with this opinion.


                                  Facts and Procedural History
[3]   On June 3, 2014, Terre Haute Police Officer Philip Ralston (“Officer Ralston”)

      was responding to a call that a woman was urinating in public when he

      encountered McCarty. After checking his identification, the officer discovered

      that McCarty had an outstanding arrest warrant. McCarty was arrested and

      placed in handcuffs, and the officer began to transport him to the Vigo County

      Jail.


[4]   During the drive to the jail, McCarty spit on Officer Ralston. The officer

      warned McCarty to stop or he would call for the mobile incarceration unit to

      transport McCarty to jail. After McCarty spit on the officer a second time,

      Officer Ralston pulled his vehicle over and two officers arrived to assist him.


[5]   McCarty began to struggle when the officers attempted to remove him from the

      vehicle. The officers eventually removed McCarty from the car and put him on

      the ground. McCarty continued to struggle and kick, but the officers were able

      to get McCarty under control before the mobile incarceration unit arrived.


[6]   The State charged McCarty with Class D felony battery by bodily waste and

      Class A misdemeanor resisting law enforcement. A jury trial was held on May

      11, 2017, and McCarty was found guilty as charged.


      Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018   Page 2 of 11
[7]   The trial court ordered McCarty to serve an aggregate two-and-one-half-year

      sentence. He was given credit for 290 days served, and the remainder of his

      sentence was suspended to probation. The trial court ordered the standard

      terms of probation and that McCarty “shall submit to a drug and alcohol

      evaluation and remain compliant with their recommendations.” Appellant’s

      App. pp. 103–4.


[8]   Four days after he was sentenced, McCarty met with a probation officer, and he

      signed a form acknowledging the conditions of his probation. The probationary

      terms at issue in this appeal are:


              2. You will avoid persons and places of harmful character, or a
              person who is likely to influence you to commit a crime.


                                                       ***


              7. You will (not) consume alcohol in a lawful manner unless
              ordered to abstain by the Court or any alcohol rehabilitation
              program.


      Id. at 107. The word “not” in the condition concerning alcohol use was

      handwritten on the form. McCarty now appeals.


                                      Discussion and Decision
[9]   First, McCarty argues that the trial court was required, but failed to, provide

      him with the specific terms of his probation at the sentencing hearing. Next,

      McCarty claims that the probationary term restricting his alcohol use is not

      reasonably related to his rehabilitation. And, finally, he argues that the
      Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018    Page 3 of 11
       probationary term concerning with whom and where he may associate with is

       unconstitutionally vague or overly broad.


[10]   “Probation is a criminal sanction wherein 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. Trial courts

       have broad discretion in establishing conditions of probation to safeguard the

       general public and to create law-abiding citizens. Patton v. State, 990 N.E.2d

       511, 514 (Ind. Ct. App. 2013). “Conditions of probation should effectuate the

       supervision required to achieve probation goals and, therefore, must be

       functionally and rationally related to the probationer’s rehabilitative needs and

       to society’s interests.” Id. We will only set aside a trial court’s terms of

       probation when the court has abused its discretion. Id. An abuse of discretion

       occurs when the decision is clearly against the logic and effect of the facts and

       circumstances before it, or the reasonable, probable, and actual deductions to be

       drawn therefrom. Id.


       A. Written Conditions of Probation

[11]   McCarty argues that the trial court erred when it failed to specify the terms of

       his probation at the sentencing hearing and did not provide him with a written

       copy of the conditions of his probation. Because McCarty did not receive the

       specific terms of his probation until he met with his probation officer four days

       after the sentencing hearing, he argues that “it appears that it was the probation

       officer, and not the court, that determined the specific terms of McCarty’s

       probation.” Appellant’s Br. at 9.
       Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018      Page 4 of 11
[12]   Indiana Code section 35-38-2-1 provides that “[w]henever it places a person on

       probation, the court shall . . . specify in the record the conditions of the

       probation[.]” And “[w]hen a person is placed on probation, the person shall be

       given a written statement specifying . . . the conditions of probation[.]” 1 I.C. §

       35-38-2-2.3(b). The intent behind Indiana Code section 35-38-2-2.3 is “to

       provide a defendant with prospective notice of the standard of conduct required

       of him or her while on probation and to prohibit the imposition of additional

       conditions after sentencing.” Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind. Ct.

       App. 1989) (analyzing the predecessor to I.C. § 35-38-2-2.3). Although the trial

       court errs by failing to provide the defendant with a written statement of the

       conditions, the error is harmless if there is otherwise substantial compliance

       with the intent of providing a defendant with prospective notice of the standard

       of conduct required of him while on probation and prohibiting the imposition

       of additional conditions after sentencing. Id.; see also White v. State, 560 N.E.2d

       45, 48 (Ind. 1990) (finding no reversible error where substantial compliance

       occurred, and defendant received written probation instructions three weeks

       after his sentencing, thus “having ample time to comply with them”).


[13]   At his sentencing hearing, McCarty was ordered to comply with the standard

       conditions of his probation and undergo an alcohol and drug evaluation.

       However, the trial court did not specifically state the standard terms of




       1
        The statute requires written notice, but it does not specifically require the trial court to provide written
       notice.

       Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018                             Page 5 of 11
       probation, and McCarty was not advised of the specific terms of his probation

       until he met with his probation officer four days after his sentencing hearing.


[14]   We can reasonably assume that the trial court is well aware of the standard

       terms and conditions of probation. Indiana Code section 35-38-2-1 requires the

       trial court to have specified the terms of McCarty’s probation on the date of

       sentencing. However, McCarty has not established any general harm in the

       four-day delay between his sentencing hearing and his receipt of the specific

       terms of his probation.


[15]   On the other hand, we can infer that McCarty’s probation officer altered

       condition number 7, which in the original read: “You will consume alcohol in a

       lawful manner unless ordered to abstain by the Court or any alcohol

       rehabilitation program.” Appellant’s App. p. 107. McCarty’s probation officer

       inserted the word “not” before the word consume. Id. The trial court did not

       order McCarty to abstain from consuming alcoholic beverages. The court only

       ordered an alcohol and drug evaluation and compliance with any resulting

       recommendations.


[16]   The probation officer’s unilateral and unauthorized alteration of a condition of

       McCarty’s probation is precisely why it is important for the trial court to specify

       the terms of probation and give a written statement of the conditions of

       probation to the defendant at the sentencing hearing as is required by Indiana

       Code sections 35-38-2-1 and -2.3. On remand, we direct the trial court to correct




       Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018   Page 6 of 11
       condition number 7 so that it does not need to be altered by probation

       personnel in the future.


[17]   Next, we address McCarty’s argument concerning the condition that he

       undergo a drug and alcohol evaluation. At the sentencing hearing, the trial

       court orally ordered McCarty to undergo an alcohol and drug evaluation.

       However, this orally imposed condition of probation was not included in the

       written statement listing the terms of McCarty’s probation.


[18]   A trial court’s failure to provide written probation terms may be harmless if the

       defendant has been orally advised of the condition and acknowledges that he

       understand the condition. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App.

       2013). In Gil, the trial court did not provide the defendant with a written

       statement of the conditions of probation. The court stated that no contact with

       the victim was a condition of probation, but the defendant never acknowledged

       that he understood this as a term of his probation. Therefore, we concluded that

       the court’s error in failing to provide written terms of probation was not

       harmless and remanded the case to the trial court with instructions to provide

       written terms of probation to Gil. Id.


[19]   In this case, the trial court ordered McCarty to undergo an alcohol and drug

       evaluation but never asked him to acknowledge that he understood that

       condition of his probation. Sentencing Tr. p. 8. As the trial court continued its

       sentencing statement and during its advisement of the right to appeal, the court

       asked, “Mr. McCarty, are you listening to me?” Id. McCarty later


       Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018   Page 7 of 11
       acknowledged his right to appeal, but never indicated that he understood that

       he was to undergo a drug and alcohol evaluation as a condition of his

       probation. Therefore, on remand, we instruct the trial court to provide McCarty

       with written terms of his probation which include a requirement that McCarty

       undergo a drug and alcohol evaluation.


       B. Whether the Drug and Alcohol Evaluation is Reasonably Related to McCarty’s
          Rehabilitation

[20]   McCarty also claims that the drug and alcohol evaluation is not reasonably

       related to his rehabilitation because his offenses did not involve alcohol or

       drugs. A trial court has broad discretion to impose conditions of probation, but

       the conditions imposed must be reasonably related to the defendant’s treatment

       and protection of the public. Slott v. State, 822 N.E.2d 176, 179–80 (Ind. Ct.

       App. 2005), trans. denied.


[21]   The officer arrested McCarty because there was an outstanding warrant for his

       arrest. The warrant was issued because McCarty had been charged with

       misdemeanor public intoxication and he failed to attend a court hearing. Tr. p.

       42. McCarty was agitated when he was arrested and “appeared to be under the

       influence” of something.2 Id. at 22. Approximately one week after he was




       2
        However, McCarty testified that he was not under the influence of alcohol or drugs at the time of arrest. Tr.
       pp. 46–47.

       Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018                         Page 8 of 11
       arrested in this case, McCarty pleaded guilty to Class B misdemeanor public

       intoxication endangering a person’s life. Appellant’s App. p. 94.


[22]   Because there is evidence in the record that McCarty was recently convicted of

       an alcohol-related offense, ordering him to complete a drug and alcohol

       evaluation is reasonably related to his rehabilitation. Moreover, our General

       Assembly has specifically authorized trial courts to order convicted persons to

       participate in treatment programs or addiction counseling as a condition of

       probation. See I.C. § 35-38-2-2.3(a).


       C. Is the condition that McCarty must avoid persons and places of harmful character

       impermissibly vague?


[23]   Finally, we consider McCarty’s claim that the following probationary term is

       unconstitutionally vague or overly broad. The condition provides that McCarty

       “will avoid persons and places of harmful character, or a person who is likely to

       influence you to commit a crime.” Appellant’s App. p. 107.


[24]   “A probationer has a due process right to conditions of supervised release that

       are sufficiently clear to inform him of what conduct will result in his being

       returned to prison.” McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007)

       (citation omitted), trans. denied. To avoid being unconstitutionally vague, the

       condition must be clear enough so that individuals of ordinary intelligence

       would be adequately informed of the general conduct that is proscribed. Patton,

       990 N.E.2d at 516. The condition “need not list, with itemized exactitude,

       every item of conduct that is prohibited.” Id.

       Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018    Page 9 of 11
[25]   Our court reviewed a similar probation condition for vagueness in Clemons v.

       State, 83 N.E.3d 104 (Ind. Ct. App. 2017), trans. denied. In that case, the

       defendant argued that the following condition was impermissibly vague: “You

       shall not associate with any person of bad character or reputation or with any

       person who is likely to influence you to commit a crime or crimes.” Id. at 107

       (record citation omitted). Our court agreed that the condition was vague and

       stated:


                 The condition does not define what “associate” or “bad character
                 or reputation” mean in this context, nor is it clear how to identify
                 a person who could “influence” Clemons to commit a crime.
                 Because each of the terms in this condition is subjective, the
                 condition fails to inform Clemons what conduct would subject
                 her to revocation of her probation.


       Id. at 109.


[26]   “Persons and places of harmful character” are subjective terms that are not

       readily defined. And what constitutes a place of harmful character is possibly

       even more difficult to define than a person of harmful character. The only

       objective example of a place of harmful character that readily comes to mind is

       a known “crack” or drug house.


[27]   For all of these reasons, we agree with McCarty that this condition of his

       probation is impermissibly vague. On remand, we direct the trial court to clarify

       this condition of McCarty’s probation so he is adequately informed of the

       general conduct that is proscribed. See id.; Patton, 990 N.E.2d at 516.


       Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018   Page 10 of 11
                                                  Conclusion
[28]   Although the trial court erred when it failed to provide McCarty with written

       conditions of probation at sentencing, the record does not indicate that

       McCarty violated, or was arrested and charged with violating, any terms of that

       probation in the four-day period between sentencing and his first appointment

       with the probation department. For this reason, we can find that error to be

       harmless error. But this case demonstrates the problems that can arise when a

       defendant is not provided with clear and accurate written conditions of his or

       her probation at sentencing. On remand, the trial court is instructed to (1)

       correct the probation term that was altered by the probation officer; (2) provide

       McCarty with written terms of his probation, which includes each condition of

       probation; and (3) clarify and make more specific the probationary term that

       McCarty is to “avoid persons and places of harmful character, or a person who

       is likely to influence you to commit a crime” because this condition of

       probation is impermissibly vague.


[29]   Reversed and remanded for proceedings consistent with this opinion.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018   Page 11 of 11
