MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Sep 16 2016, 8:20 am
regarded as precedent or cited before any                               CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Gregory F. Zoeller
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart LLP
                                                         J.T. Whitehead
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Johnathan L. Bean,                                       September 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A01-1603-CR-641
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable Christopher L.
Appellee-Plaintiff.                                      Isom, Judge Pro Tem
                                                         Trial Court Cause No.
                                                         30C01-1503-F3-332



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016    Page 1 of 9
                                          Case Summary
[1]   Johnathan L. Bean (“Bean”) pled guilty to Rape, as a Level 3 felony.1 He now

      appeals, challenging certain conditions of sex offender probation restricting his

      access to children, use of internet websites, and employment in private

      residences. He presents the sole issue of whether the trial court abused its

      discretion by imposing those restrictions. The State responds that Bean agreed

      to the imposition of such restrictions, subject to subsequent review after a

      psycho-sexual evaluation was completed. We affirm.



                                   Facts and Procedural History
[2]   On January 26, 2016, Bean pled guilty to Rape. He admitted that he had, on

      February 1, 2015, digitally penetrated G.W.’s vagina, when G.W. was unaware

      that the sexual conduct was occurring. G.W. was eighteen years old.


[3]   On February 25, 2016, in accordance with a plea agreement between the State

      and Bean, the trial court sentenced Bean to six years imprisonment. Two years

      were to be executed in the Indiana Department of Correction and four years

      were suspended to probation with twenty-six sex offender conditions. The

      twenty-six conditions were enumerated in a document entitled “Indiana Special




      1
          Ind. Code § 35-42-4-1.


      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016   Page 2 of 9
      Probation Conditions for Adult Sex Offenders,” referenced in the plea

      agreement between the State and Bean. (App. at 27.) This appeal ensued.



                                 Discussion and Decision
[4]   We review a trial court’s sentencing decisions for an abuse of discretion.

      McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007). Sentencing decisions include

      the imposition of fines, costs, and fees, and the conditions of a defendant’s

      probation. Meunier-Short v. State, 52 N.E.3d 927, 930 (Ind. Ct. App. 2016). The

      trial court has broad discretion in determining the appropriate conditions of a

      defendant’s probation. Id. at 936. Our review of the trial court’s discretion is

      limited to whether the conditions are reasonably related to the defendant’s

      treatment and the protection of public safety. Id. When the defendant

      challenges a probationary condition on the basis that it is unduly intrusive on a

      constitutional right, we evaluate 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. McVey v. State, 863 N.E.2d 434,

      447 (Ind. Ct. App. 2007).


[5]   Among the twenty-six restrictions placed upon Bean as part of his sex offender

      probation, conditions 8, 9, 17, 20, 21, and 22 were restrictions involving access

      to minors, either personally or via websites. Condition 18 prohibited certain

      employment within private residences of other persons and Condition 26

      restricted internet or electronic device use without approval. Bean observes that

      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016   Page 3 of 9
      his eighteen-year-old victim had attained adulthood, and argues that restrictions

      related to the protection of children do not further his treatment or protect

      public safety. He also argues that limitations upon employment in private

      residences and access to internet websites are so vague that he does not know

      what behavior is prohibited and thus the restrictions are unconstitutionally

      vague.


[6]   The State responds that appellate review of these conditions is not warranted

      because Bean entered into a plea agreement that contemplated those conditions,

      he agreed not to appeal his sentence, he did not specifically object at the

      sentencing hearing, and, moreover, Bean affirmed in open court, by counsel,

      that the conditions were appropriately imposed pending sex offender evaluation

      and potential for revision.


[7]   In Meunier-Short, a panel of this Court recognized the split of authority on the

      necessity of objecting to probation conditions at the sentencing hearing:

               We note there appears to be a division of authority among the
               panels of this court regarding whether a defendant must object to
               his probation conditions in order to preserve the issue for appeal.
               In some cases we have held the defendant’s failure to object
               waived appellate review of his probation conditions. Patton v.
               State, 990 N.E.2d 511, 514 (Ind. Ct. App. 2013); Hale v. State, 888
               N.E.2d 314, 319 (Ind. Ct. App. 2008), trans. denied; Stott v. State,
               822 N.E.2d 176, 179 (Ind. Ct. App. 2005), trans. denied. But in
               Piercefield v. State, 877 N.E.2d 1213 (Ind. Ct. App. 2007), trans.
               denied, we rejected the State’s argument that a defendant waives
               review of his probation conditions by failing to object at
               sentencing and then signing a form listing the conditions. In so
               holding, we analogized “the appeal of [a] probation condition to
      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016   Page 4 of 9
               an appeal of a sentence, which we may review ‘without insisting
               that the claim first be presented to the trial judge.’” Id. at 1218
               (quoting Kincaid v. State, 837 N.E.2d 1008, 1010 (Ind. 2005));
               accord Bratcher v. State, 999 N.E.2d 864, 873-74 (Ind. Ct. App.
               2013), trans. denied. We find the reasoning of Piercefield
               persuasive and conclude Meunier—Short has not waived
               appellate review of this issue.


      52 N.E.3d at 936.


[8]   Here, however, probationary conditions were not imposed upon Bean at the

      sentencing hearing without prior notice and opportunity for negotiation or

      objection.2 Indeed, the plea agreement between the State and Bean provided in

      relevant part:

               [F]our years shall be suspended and served on sex offender
               probation. Conditions of sex offender probation are to include
               any special conditions that the Judge and Probation may elect. A
               list of special probation conditions for sex offenders is attached as
               an example. Conditions may be chosen from that list, and there
               also may be conditions that are not on the list.


      App. at 21-22. The attached document was the “Indiana Special Probation

      Conditions for Adult Sex Offenders,” specifying twenty-six conditions. (App.

      at 27.) The plea agreement also provided that Bean had a right to appeal his

      sentence “if there is an open plea,” defined as “an agreement which leaves the

      sentence entirely to the Judge’s discretion, without any limitations or the



      2
        We note that the trial court did not include a sex offender condition other than the twenty-six enumerated
      in the attachment to the plea agreement.

      Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016           Page 5 of 9
       dismissal of any charges.” (Tr. at 24.) The plea agreement specified that Bean

       had not entered into an open plea.


[9]    After having signed the plea agreement giving up his right to appeal and

       providing for the inclusion of special conditions for adult sex offenders, Bean

       appeared at the sentencing hearing and advised the trial court that his

       understanding was there were no changes to the plea agreement other than the

       insertion of the language “defendant shall be released directly to Community

       Corrections.” (Tr. at 17.) Bean was afforded the opportunity to present

       evidence, and counsel responded: “No evidence Your Honor, only discussion

       about the presentence for the purpose of certain aspects of the Probation terms

       for the record.” (Tr. at 18.) Counsel then argued that the presentence

       investigation report omitted appropriate mitigating factors.


[10]   Counsel continued:


               I also note that as a term and condition of the defendant’s plea of
               guilty which he has accepted responsibility for and entered into
               freely, knowingly and voluntarily, the Plea Agreement itself
               specifies that he may be subject to certain sex offender or special
               conditions of probation which can be applied. I would note that
               a general list of them are provided with the Plea Agreement and
               constitute the set Indiana Special Probation Conditions for adult
               sex offenders located on the back. … I note that some of the
               conditions of probation are other special conditions of which
               some of them apply to individuals in other types of sex offenses,
               but not necessarily the type of sexual offense contemplated here.
               The type of sex offense contemplated here does not involve the
               defendant’s family, it does not involve the defendant’s children or
               siblings, it does not involve minors, it does not involve

       Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016   Page 6 of 9
               playgrounds, schools, churches, parks, it did not involve the
               internet, it did not involve the use of the internet, it did not
               involve pornography. I understand that certain terms must be
               rationally related and I would only take issue with a handful of
               them. … Namely the provision regarding minors and
               playgrounds as my client has juvenile family member[s].


       (Tr. at 19-20.) Counsel stopped short of lodging an objection or asking that a

       specific restriction among the twenty-six be omitted. He explained that he

       expected that the Probation Department would request the imposition and later

       “lifting” of certain restrictions, and he did not want his client to have waived

       “any issue he might have with those terms.” (Tr. at 20.) A discussion ensued

       between the trial court, defense counsel, and a probation department

       representative.


[11]   The probation employee advised the trial court of the probation department’s

       anticipated procedure as follows:

               Because the sex offender conditions are decided now in Court,
               they come with him when he comes to us to probation. We
               don’t decide those when he comes to meet with us. The Court
               has taken the stance that it assigns all sex offender specific
               conditions. Once that specific offender has their sex offender
               specific evaluation with one of the three agencies that this Court
               accepts, if that evaluator says there is no risk and puts that in
               writing we submit that to the Court at that time for the Court to
               lift those specific conditions. But the cherry picking of conditions
               is not something that the Court has entertained before so I’m not
               sure if you’re wanting him to undergo an evaluation at his own
               cost and have that person appear in Court to testify as to this.
               Because he will have time between now and when he starts
               Probation if the Plea Agreement is accepted.

       Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016   Page 7 of 9
       (Tr. at 21-22.) Defense counsel expressed his “belief” that some terms could

       not be applied consistent with legal precedent or “sufficiently enforced.” (Tr. at

       22.) However, counsel ultimately represented to the trial court that he “didn’t

       have a problem if we can revisit them later if Probation thought that they were

       rationally related[.]” (Tr. at 22.) The trial court imposed all twenty-six

       conditions, with the proviso: “My understanding is the examiner can come

       back and say some conditions are not needed.” (Tr. at 23.)


[12]   As previously observed, this is not a situation where Bean was first confronted

       with specific conditions of sex offender probation when probation was ordered.

       Bean entered into a plea agreement specifying that he was waiving his right to

       appeal his sentence and was to be subject to special probation conditions for

       adult sex offenders; at sentencing, defense counsel generically referenced child-

       related provisions and expressed some misgivings; ultimately, however, counsel

       had “no problem” if conditions could be revisited after a psycho-sexual

       evaluation. (Tr. at 22.) Essentially, Bean has sought to preserve all benefits of

       his plea agreement with the State, yet not be held to the provision for waiving

       his right to appeal his sentence.


[13]   In his appellant’s brief, Bean cites Creech v. State, 887 N.E.2d 73, 75 (Ind. 2008)

       for the proposition that “a defendant may waive their right to appeal as a part of

       a written plea agreement, [but] the record must clearly demonstrate that it was

       knowing[] and voluntary.” Appellant’s Brief at 12. He then summarily argues

       that, in light of the plea agreement language and “the discussion with the court

       concerning whether certain terms of the sentence were appropriate,” the record

       Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016   Page 8 of 9
       does not demonstrate a knowing and voluntary waiver. Appellant’s Brief at 12.

       Our review of the record indicates that Bean executed a plea agreement with

       the State, personally advised the trial court that the only change was one of

       more favorable placement, and, by counsel, acknowledged that he entered into

       the agreement “freely, knowingly, and voluntarily.” (Tr. at 19.) We agree with

       the State that Bean waived his right to appeal the trial court’s sentencing

       decision, which includes the conditions of probation. Meunier-Short, 52 N.E.3d

       at 930.



                                               Conclusion
[14]   Bean waived appellate review of the conditions of his sex offender probation.


[15]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A01-1603-CR-641 | September 16, 2016   Page 9 of 9
