                                                                  FILED
                                                             Dec 12 2016, 7:23 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Deborah K. Smith                                          Gregory K. Zoeller
Sugar Creek Law                                           Attorney General of Indiana
Thorntown, Indiana
                                                          James B. Martin
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Antonio Waters,                                           December 12, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          06A05-1604-CR-863
        v.                                                Appeal from the Boone Circuit
                                                          Court
State of Indiana,                                         The Honorable J. Jeffrey Edens,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          06C01-0809-FA-244



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016             Page 1 of 12
                                           Case Summary
[1]   Antonio Waters pled guilty to criminal deviate conduct, battery resulting in

      bodily injury, and strangulation after assaulting a woman in 2008. The trial

      court entered a sentence of imprisonment to be followed by probation. The

      court imposed the standard probation conditions but said that it would consider

      sex-offender conditions at a date closer to Waters’ release from prison. Waters

      did not object to this procedure. The day before Waters was released from

      prison in 2016, the court held a hearing and imposed twenty-six sex-offender

      conditions. Waters appeals the imposition of those conditions, arguing that

      holding the delayed second hearing violated Indiana law and that, in the

      alternative, seventeen of the twenty-six conditions are unnecessary and

      inappropriate.

[2]   We agree with the State that Waters waived any objection to the bifurcation of

      the sentencing hearing. However, probation conditions must be reasonably

      related to the defendant’s treatment and the protection of public safety. Several

      of Waters’ conditions fall short of this standard. Applying our Supreme Court’s

      holding in Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014), we conclude that the

      trial court erred when it imposed four conditions that restrict Waters’ contact

      with minors even though his offenses did not involve minors. Furthermore,

      condition 26, which restricts Waters’ access to the internet, is overly broad in its

      application. Waters’ internet restriction should be limited to websites that are

      related to his offenses—such as dating websites and websites with sexually

      explicit material—because the internet has become increasingly pervasive in our

      Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016   Page 2 of 12
      daily lives, and Waters did not use the internet to commit his crimes. We

      affirm in part, reverse in part, and remand with instructions.



                             Facts and Procedural History
[3]   In September 2008, Waters went with S.C. to a bar, where they both consumed

      several alcoholic drinks. They left the bar and went back to S.C.’s house.

      Upon entering her home, Waters punched S.C. in the face, knocking her to the

      ground. Waters locked the front door, straddled S.C. on the ground, and

      continued punching her in the face and abdomen. S.C. fought to get Waters off

      of her and repeatedly told him to stop. Waters removed S.C.’s pants and

      underwear and attempted to penetrate S.C. but failed. Instead, he forced his

      penis into her mouth. Waters also placed his hands around S.C.’s neck and

      squeezed so hard that he left marks. S.C. was eventually able to break free and

      run to a neighbor’s house, where she called police. S.C. told police she thought

      Waters was going to kill her by strangulation. Waters was charged with

      attempted rape, criminal deviate conduct, criminal confinement, battery

      resulting in bodily injury, and strangulation.

[4]   In October 2009, Waters reached a plea agreement with the State and pled

      guilty to criminal deviate conduct, battery resulting in bodily injury, and

      strangulation. As a condition of the plea agreement, the State dismissed the

      charges for attempted rape and criminal confinement, and the parties agreed

      that sentencing would be at the trial court’s discretion. In sentencing Waters,

      the court found several aggravating factors: Waters was discharged from the

      Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016   Page 3 of 12
      military for “alcohol rehab failure,” Waters was convicted of assaulting another

      female one month before attacking S.C., and Waters’ crimes against S.C.

      occurred while he was on probation. Tr. p. 32. The court sentenced Waters to

      twenty-one-and-a-half years with sixteen years to be served at the Indiana

      Department of Correction (“DOC”) and five-and-a-half years to be suspended

      to probation. The trial court prepared an Order of Probation, instructed Waters

      to review it with his attorney, and informed Waters that he would “be on

      probation while [he was] at the Department of Correction.” Id. at 37. The

      court also told Waters it was imposing the standard conditions of probation but

      delaying the imposition of sex-offender conditions, which would be “addressed

      at a hearing to be held within thirty days of release.” Id. Waters did not object

      to the trial court revisiting the issue of sex-offender conditions at a date closer to

      his release from prison.

[5]   On March 22, 2016, the day before Waters was released, the court held a

      hearing to address his sex-offender conditions. Waters objected for the first

      time to the bifurcation of his sentencing, which he said violated Indiana law.

      The State noted that Waters waived this argument by failing to object when the

      court explained this procedure in 2009. The State further argued that the court

      properly bifurcated the sentencing hearing because it “wanted to see [Waters’]

      prison progress report to see what he had done at the DOC before specifying

      the terms of his probation” and that this delay was to Waters’ benefit.

      Appellant’s App. p. 49. The court acknowledged that Waters waived any

      objection to bifurcation and ruled that, in any event, the bifurcation was


      Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016   Page 4 of 12
      permissible. The court imposed eight mandatory conditions (conditions 1 and

      3–9) and eighteen discretionary conditions (conditions 10–27).

[6]   Waters now appeals.



                                 Discussion and Decision
[7]   Waters raises three issues on appeal. He makes two arguments as for why the

      2016 hearing should not have been held. First, he notes that the trial court said

      at the 2009 hearing that he would be “on probation” while incarcerated and

      that the imposition of sex-offender conditions in 2016 therefore violated

      Indiana Code section 35-38-2-2.3(b), which requires that the conditions of

      probation be provided when a defendant is “placed on probation[.]” In the

      alternative, Waters asserts that the six-and-a-half-year delay in sentencing

      violated Indiana Criminal Procedure Rule 11, which provides that a defendant

      shall be sentenced within thirty days of conviction. In his third argument,

      Waters contends that even if the 2016 hearing was proper, the court erred when

      it imposed seventeen of the eighteen discretionary sex-offender conditions.



                                   I. March 2016 Hearing
[8]   Waters’ first argument is based on Indiana Code section 35-38-2-2.3(b), which

      provides, “When a person is placed on probation, the person shall be given a

      statement specifying: the conditions of probation . . . .” (emphasis added).

      Waters notes that the trial court told him during the 2009 hearing, “[Y]ou’ll be

      on probation while you’re at the Department of Correction.” Tr. p. 37
      Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016   Page 5 of 12
      (emphasis added). Waters argues that the court placed him “on probation” in

      2009 and that the subsequent imposition of the sex-offender conditions was

      therefore barred by Section 35-38-2-2.3(b).


[9]   Because Waters did not make this objection at the 2009 hearing, it is waived.

      See Bogner v. Bogner, 29 N.E.3d 733 (Ind. 2015) (finding that a party waived his

      argument on appeal when he did not object to the trial court’s decision to

      proceed summarily rather than to hold a full evidentiary hearing); Bah v. Mac’s

      Convenience Stores, LLC, 37 N.E.3d 539 (Ind. Ct. App. 2015) (holding that a

      party waived her procedural and substantive arguments regarding a motion to

      strike because she failed to object on either basis at trial and she specifically

      consented to the court’s procedure), trans. denied. Waiver notwithstanding,

      Waters’ argument still fails. When the trial court said that Waters would be

      “on probation” while incarcerated, it was simply referencing the well-

      established principle of Indiana law that a defendant can have his probation

      revoked prospectively and his suspended time imposed even before he begins

      the probation phase of his sentence. See Gardner v. State, 678 N.E.2d 398, 401

      (Ind. Ct. App. 1997); Johnson v. State, 606 N.E.2d 881, 882 (Ind. Ct. App. 1993);

      Ashba v. State, 570 N.E.2d 937, 940 (Ind. Ct. App. 1991), aff’d, 580 N.E.2d 244

      (Ind. 1991). The court was not saying that Waters’ probation would begin

      while he was still incarcerated. Probation is an alternative to incarceration.

      McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007). The court

      imposed all of Waters’ probation conditions, including the sex-offender




      Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016   Page 6 of 12
       conditions, before he was released to probation. There was no violation of

       Indiana Code section 35-38-2-2.3(b).1

[10]   Waters next argues that even if there was no statutory violation, the March

       2016 hearing violated Indiana Criminal Procedure Rule 11, which states that a

       defendant shall be sentenced within thirty days after conviction unless an

       extension is granted. As with his first argument, Waters waived this objection

       by failing to make it when the trial court said that it was delaying imposition of

       his sex-offender conditions to a date closer to his release from prison. When a

       defendant fails to object to the scheduling of a sentencing hearing for a day

       beyond the thirty-day deadline, “[h]e cannot later claim error on appeal.”

       Dudley v. State, 480 N.E.2d 881, 905 (Ind. 1985) (quoting Murphy v. State, 447

       N.E.2d 1148, 1149 (Ind. Ct. App. 1983)).



                     II. Sex-Offender Probation Conditions
[11]   Waters’ last argument is that even if the 2016 hearing was properly held, the

       trial court should not have imposed seventeen of the discretionary sex-offender

       probation conditions. A review of his brief, however, reveals that he only

       challenges five of the conditions. The first four conditions explicitly restrict




       1
        We acknowledge that this Court has explained that “a defendant’s probationary period begins immediately
       after sentencing.” Baker v. State, 894 N.E.2d 594, 597 (Ind. Ct. App. 2008); see also Rosa v. State, 832 N.E.2d
       1119, 1122 (Ind. Ct. App. 2005); Crump v. State, 740 N.E.2d 564, 568 (Ind. Ct. App. 2000), trans. denied;
       Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999), reh’g denied. This does not mean that a defendant is
       “on probation” when he is incarcerated; it is simply another way of saying that a defendant’s probation can
       be revoked prospectively while he is incarcerated, before he begins the probation phase of his sentence.

       Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016                       Page 7 of 12
       Waters’ contact with minors: 17 (shall not engage in a sexual relationship with

       any person who has a child under the age of sixteen), 20 (shall have no contact

       with any person under the age of sixteen), 21 (shall not be present at schools,

       playgrounds, or day-care centers), and 22 (shall not participate in any activity

       that involves children under the age of eighteen). Waters contends that because

       his victim was over the age of eighteen, any conditions that restrict his contact

       with minors are unnecessary and inappropriate. Waters also challenges

       condition 26 (shall not access the internet without prior approval from his

       probation officer).2


[12]   “Probation is a criminal sanction where 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.



       2
         Waters also contends that the trial court did not take into consideration the restrictions that the
       discretionary conditions placed on his constitutional rights. He states, “The constitutional rights restricted by
       the discretionary terms are broad and include free speech (term 26 relative to internet access) as well as the
       right to avoid self-incrimination (term 24 relative to polygraph testing); the right to travel and free access
       without state interference (term 16 which sets a curfew) . . . .” Appellant’s Br. p. 24. He does not support
       these arguments with cogent reasoning or citations to relevant legal authority, so they are waived. See Ind.
       Appellate Rule 46(A)(8)(a); City of Indianapolis v. Buschman, 988 N.E.2d 791, 795 (Ind. 2013). Waters also
       argues that the court failed to consider his behavior while incarcerated and the programs he completed in
       prison. Waters’ brief, however, does nothing more than list the programs he completed (SOMM Medium
       Risk program, educational classes, anger management and relapse prevention classes, and 12-Steps Thinking
       for a Change Program). Waters does not explain what these programs are or how they are relevant to his
       probation conditions. Accordingly, this argument is also waived.

       Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016                         Page 8 of 12
       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). “An abuse of discretion occurs when the decision is

       clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id.


[13]   As to the four conditions addressing minors—17, 20, 21, and 22—we agree

       with Waters. The State does not cite any authority that supports the imposition

       of these conditions in this case. Nor does it cite any evidence in the record that

       supports the presumption that Waters is a particular threat to minors. Our

       Supreme Court held in Bleeke v. Lemmon that because the defendant’s sex crime

       was not against a minor and because there was no evidence that the defendant

       posed a threat to children, parole conditions that restricted his contact with

       children could not be viewed as “reasonably related to [his] successful

       reintegration into the community.” 6 N.E.3d 907, 919 (Ind. 2014) (citations

       omitted). We note that Bleeke was on parole and Waters is on probation and

       that there is a difference between the two. Nevertheless, the Court’s rationale

       can be applied to Waters: without any evidence that Waters poses a particular

       threat to children, conditions 17, 20, 21, and 22 cannot be said to be reasonably

       related to the treatment of the defendant and the protection of public safety. As

       such, the trial court erred when it imposed these four conditions.




       Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016   Page 9 of 12
[14]   Waters also argues that the trial court erred when it imposed condition 26,

       which would restrict his access to the internet.3 Waters’ argument relies on

       Bratcher, where the defendant was convicted of child molesting and appealed, in

       part, the sex-offender conditions that restricted his access to the internet. This

       Court upheld the restrictions because they were not overbroad or vague, were

       reasonably related to attaining rehabilitation goals and protecting the public,

       and because “child molesters molest children to whom they have access.”

       Bratcher, 999 N.E.2d at 879. Waters argues that Bratcher stands for the

       proposition that only defendants who are convicted of a sexual offense against a

       minor should have probation conditions that restrict their internet use. We did

       not reach that conclusion in Bratcher nor do we reach it in this case. Restricting

       someone’s access to the internet does more than prevent them from contacting

       minors; it prevents them from contacting adults as well. However, we conclude

       that as it is currently imposed, condition 26 is overly broad in its restrictions.

[15]   The internet has become increasingly pervasive in our daily lives; we use it to

       pay bills, order food, get directions, communicate with friends and colleagues,

       and file taxes, among other things. Other courts have recognized that a sex




       3
         The condition states, “You shall not access the Internet or any other on-line service through use
       of a computer, cell phone, iPod, Xbox, Blackberry, personal digital assistant (PDA), pagers, Palm
       Pilots, televisions, or any other electronic device at any location (including your place of
       employment) without prior approval of your probation officer. This includes any Internet service
       provider, bulletin board system, e-mail system or any other public or private computer network.
       You shall not possess or use any data encryption technique or program.” Appellant’s App. p. 40.




       Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016                      Page 10 of 12
       offender who has no history of illegal internet use and did not use the internet

       as an instrument in his crime should not have a total ban on his internet access

       but rather a narrowly tailored restriction. See, e.g., United States v. Perazza-

       Mercado, 553 F.3d 65, 72-73 (1st Cir. 2009) (holding that defendant did not use

       the internet to engage in sexual conduct with a minor and that a total ban on

       defendant’s internet use at home was inconsistent with the goals of supervised

       release but a “narrowly tailored condition” would meet that goal); United States

       v. Neeley, 675 F. Supp. 2d 655, 658 (W.D. Va. 2009) (holding that a total ban on

       electronic devices was unreasonable for a child molester who violated probation

       because he did not use the internet to find his victims or violate probation), aff’d

       420 F. App’x 228 (4th Cir. 2011); State v. Cornell, 146 A.3d 895, 910-11 (Vt.

       2016) (holding that a child molester who did not use the computer to commit

       his crime should not have a ban on his internet use subject to the approval of his

       probation officer because such a restriction creates a “greater deprivation of

       liberty than is reasonably necessary to deter illegal conduct and protect the

       public”) (citation omitted).

[16]   Here, there is no evidence in the record to show that Waters used the internet to

       commit his attack on S.C. or that he has a history of illegal internet use. The

       trial court noted that Waters has “issues with respect to women,” not issues

       with the internet. Tr. p. 33. In light of this observation, we acknowledge that

       the internet has become a popular medium for people to meet, and it is one way

       Waters could meet women. Modern technology affords the court the tools to

       limit Waters’ access to certain dating websites and phone applications, as well


       Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016   Page 11 of 12
       as websites with sexually explicit materials—restrictions that are reasonably

       related to his rehabilitation and the protection of public safety.4 For example,

       the court can order that the parental controls on Waters’ phone be turned on,

       can order that software be downloaded to Waters’ computer to block specific

       websites, and can identify the category of websites to be blocked. On remand,

       the trial court should impose a narrower internet restriction that is more in line

       with Waters’ conviction and “issues with women.”

[17]   Affirmed in part, reversed in part, and remanded with instructions.

       Baker, J., and Najam, J., concur.




       4
         Condition 12 prohibits Waters from possessing any obscene matter as defined by statute and from visiting
       establishments like strip clubs, adult bookstores, and businesses that sell sexually explicit devices. The
       restrictions on Waters’ internet access should complement condition 12 by restricting his access to view
       sexually explicit material online.

       Court of Appeals of Indiana | Opinion 06A05-1604-CR-863 | December 12, 2016                    Page 12 of 12
