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).

      Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2238 | April 7, 2017               Page 3 of 4
      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
