MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Feb 11 2020, 8:40 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Darren Bedwell                                          Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Tiffany A. McCoy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Deondre D. Langston,                                    February 11, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1451
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Barbara Crawford,
Appellee-Plaintiff,                                     Judge
                                                        Trial Court Cause Nos.
                                                        49G01-1902-F5-5863
                                                        49G01-1807-F3-22213



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020              Page 1 of 9
                                 Case Summary and Issue
[1]   Armed with a knife, Deondre Langston robbed a Family Dollar store in Marion

      County during business hours and was charged with robbery, a Level 3 felony.

      While incarcerated awaiting disposition of that charge, he was involved in an

      incident that led to a charge of battery by bodily waste, a Level 5 felony. In a

      single proceeding, Langston pleaded guilty to both offenses as charged, leaving

      his sentences open to the trial court’s discretion. Langston was sentenced to

      consecutive terms of ten years in the Indiana Department of Correction

      (“DOC”) with three years suspended for the robbery conviction, and four years

      in the DOC with one year to be served in community corrections and one year

      suspended to probation for the battery conviction. He was also ordered to stay

      away from all Family Dollar stores in Marion County. Langston now appeals

      that condition of his probation, raising one issue for our review: whether the

      trial court abused its discretion in imposing a condition of probation that he

      claims is overly broad.1 Concluding the condition is not overly broad as it is

      reasonably related to his rehabilitation and public safety, we affirm.



                             Facts and Procedural History



      1
        The robbery and battery cases were consolidated for appeal on Langston’s motion. Several documents had
      already been filed in the individual appellate cause numbers and so the consolidated cause number contains
      separate documents for each trial court cause number. Where appropriate, we have designated the record
      materials by the corresponding trial court cause number: “Cause 22213” for the robbery case; “Cause 5863”
      for the battery case.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020               Page 2 of 9
[2]   Around noon on July 6, 2018, James Wheeler and two other people were

      working at the Family Dollar store on German Church Road in Indianapolis.

      Wheeler observed a man, later identified as Langston, walking through the

      aisles of the store putting items in an open bag. Wheeler made an

      announcement that customers found stealing would be arrested. Langston then

      approached the front door to leave. Wheeler confronted Langston, asking to

      check his bag. Langston refused and pulled out a knife. He told Wheeler not to

      be a hero and said if employees called the police, he would come back and kill

      them. Langston then went back into the store and retrieved a cart with a tote

      full of laundry detergent from an aisle. As he wheeled the cart out of the store,

      Langston again told Wheeler not to be a hero. Langston got into a waiting

      vehicle being driven by a female. One of the store employees was able to get

      the license plate number of the vehicle as it left the parking lot and reported the

      robbery to the police. When police stopped the suspect vehicle a short time

      later, they found a female driving, with Langston in the passenger seat and a

      tote full of laundry detergent in the back seat. Langston told police, “No matter

      how many times I get caught, I’m gonna go steal. That’s what I do. You can

      give me 20 years in prison, I’m gonna go steal when I get out.” Appellant’s

      Appendix [Cause 22213], Volume II at 20.


[3]   The State charged Langston with robbery, a Level 3 felony. While incarcerated

      awaiting disposition of that charge, he was involved in an altercation with

      another inmate at the jail and ultimately bit a correctional officer who was




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020   Page 3 of 9
      trying to stop the altercation. The State charged Langston with battery by

      bodily waste, a Level 5 felony.2


[4]   Langston entered an open plea agreement with the State, agreeing to plead

      guilty in both cases as charged and leaving all terms of his sentence to the trial

      court’s discretion. The trial court sentenced Langston to ten years in the DOC

      with three years suspended for robbery; a consecutive term of four years at the

      DOC with one year to be served in community corrections and one year

      suspended to probation for battery; entered no contact orders for the three

      Family Dollar employees present on the day of Langston’s offense “for the

      length of the sentences[; and] then stay away from the Family Dollar as well.”

      Transcript of Evidence, Volume II at 29. The written sentencing order stated

      there was a “Stay Away Order” for “All Family Dollar Stores in Marion

      County[.]” Appellant’s App. [Cause 5863], Volume II at 10.3 Langston now

      appeals this condition of his sentence.



                                  Discussion and Decision                              4




      2
       The State alleged both that Langston knew the bodily fluid was infected with HIV, Ind. Code § 35-42-2-
      1(h)(1), and that Langston committed the battery upon a public safety official, Ind. Code § 35-42-2-1(h)(2).
      Either of these conditions increase the offense to a Level 5 felony. Ind. Code § 35-42-2-1(h).
      3
        The trial court entered a written sentencing order in each case. The sentencing order in the robbery case
      states there is a “Stay Away Order . . . From Family Dollar.” Appellant’s App. [Cause 22213], Volume II at
      14.
      4
       The State argues Langston has not preserved this issue by failing to make a record at the sentencing hearing.
      Whether or not a probation condition can generally be challenged for the first time on appeal, see Meunier-
      Short v. State, 52 N.E.3d 927, 936 (Ind. Ct. App. 2016) (noting an apparent split of authority on the issue),


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020                  Page 4 of 9
[5]   The fashioning of probation conditions, assigned in lieu of imprisonment, are a

      matter entrusted to the discretion of the trial court. Bleeke v. Lemmon, 6 N.E.3d

      907, 918 (Ind. 2014). Probation is “simply one point . . . on a continuum of

      possible punishments,” meant to “assure that the probation serves as a period of

      genuine rehabilitation and that the community is not harmed by the

      probationer’s being at large” when the offender would otherwise be imprisoned

      and away from the public. Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 874-

      75 (1987)). We will not disturb a trial court’s probation order absent an abuse

      of discretion, which occurs “when the probation conditions imposed are not

      reasonably related to rehabilitating the defendant and protecting the public.”

      Weida v. State, 94 N.E.3d 682, 687 (Ind. 2018). Accordingly, our review centers

      around whether imposed probation conditions “reasonably relate[] to attaining

      these goals.” Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans.

      denied.


[6]   At the sentencing hearing, the trial court acknowledged that Langston “has a

      pretty significant history of mental health challenges.” Tr., Volume II at 26.

      The pre-sentence investigation report indicated that Langston was diagnosed

      with schizophrenia, bi-polar disorder, ADHD, and depression as a child. The

      trial court also noted his ongoing and consistent criminal activity. “And my




      the trial court in this case stated at the sentencing hearing that Langston was to stay away from “the” Family
      Dollar. Tr., Vol. II at 29. It was only when the trial court entered its written sentencing orders that the trial
      court’s intention for the stay away order to apply to all Family Dollar stores in Marion County became
      apparent. Thus, Langston did not have a fair opportunity to object to the actual probation condition during
      the sentencing hearing.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020                     Page 5 of 9
      concern is that that is not — that is not going to stop if — or be interrupted even

      if we send you back into the community.” Id. at 27. Langston’s criminal

      activity began as a juvenile, and he has eleven prior felony convictions and

      several misdemeanor convictions, many for theft-related offenses. The trial

      court found the aggravator of Langston’s criminal history outweighed the

      mental health mitigator – although not “by a whole lot.” Id. at 27.

      Accordingly, the trial court gave him a slightly aggravated sentence in each case

      and ordered the sentences to be served consecutively but offered some leniency

      at the end of his sentence in the form of community corrections and probation.

      As for the conditions of his probation, the trial court ordered him to stay away

      from the three Family Dollar employees on duty at the time of the robbery and

      also to stay away from all Family Dollar stores in Marion County for the length

      of his sentence.


[7]   Langston concedes that a stay away order from the Family Dollar location he

      robbed would be a reasonable probation condition, see Brief of Appellant at 11,

      but argues that ordering him to stay away from all Family Dollar stores in

      Marion County is an overly broad condition not reasonably related to his

      rehabilitation and the protection of the public. In support of his argument,

      Langston cites Hurd v. State, 9 N.E.3d 720 (Ind. Ct. App. 2014). In Hurd, the

      defendant was convicted of battering a woman leaving a bus stop near her

      home at 38th Street and College Avenue in Indianapolis. The thirty-five-year-

      old defendant had been diagnosed with paranoid schizophrenia and lived with

      his mother, who was also his guardian, on the east side of the city but often


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020   Page 6 of 9
      took the bus to visit and stay with friends in the area of 38th and College. The

      trial court gave him a suspended sentence of 178 days with non-reporting

      probation, ordered him to comply with his mental health treatment plan, and

      ordered him to stay away from the victim. The trial court also ordered him to

      stay away from an area bordered by 28th Street to the south, 48th Street to the

      north, Martin Luther King, Jr. Street to the west and Fall Creek Parkway to the

      east. This was roughly a one-mile radius in all directions from 38th and College

      in the heart of downtown Indianapolis. The defendant appealed this condition

      of his probation, arguing it was not reasonably related to his rehabilitation and

      public safety. We agreed, noting it was reasonable for the trial court to express

      concern for the defendant’s mental health and therefore order him to comply

      with his treatment. It was also reasonable for the trial court to express concern

      for the victim of his crime and order the defendant to stay away from her.

      “However, prohibiting [the defendant] from entering a significant area of the

      central part of Indianapolis is not tailored to his rehabilitation or public safety.”

      Id. at 726.5


[8]   This case is distinguishable from Hurd. Whereas in Hurd, the defendant was

      prevented by the stay away order from entering a large area of the city with

      little to no showing of why that was necessary, here, Langston’s freedom of

      movement is not inhibited, he is simply prohibited from entering individual



      5
       The trial court initially entered a stay away order for a five-block radius from 38th and College, but the
      victim’s boyfriend, who also happened to be a police officer, objected and requested the stay away order
      cover the larger area.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020                    Page 7 of 9
locations of a store brand he not only robbed on this occasion, but that his

criminal history shows he has robbed before. In October 2004 and June 2018,

Langston was charged with theft and ultimately ordered to stay away from all

Family Dollar stores in Marion County as a condition of his probation in those

cases. See Appellant’s App. [Cause 22213], Vol. II at 91, 97. We note, as the

trial court did, that Langston suffers from a mental illness and that he either

does not understand or does not care about the wrongfulness of his conduct.

Langston stated at the time of his arrest that stealing is what he does, indicating

he has no intention of stopping. And his criminal history bears this out.

Family Dollar is not the only retail establishment Langston has been ordered to

stay away from. In 2010, as part of a sentence for criminal trespass, Langston

was ordered to stay away from Castleton Square Mall. Also in 2010, as part of

a sentence for battery and battery resulting in bodily injury, Langston was

ordered to stay away from all Safeway Stores in Marion County. And in 2013,

as part of a community corrections sentence for theft, Langston was ordered to

stay away from IU Health/Methodist Hospital, Carson Pirie Scott, and all

Dollar General stores in Marion County. Thus, although the probation

condition in this case is broad and unlikely to be effective in stemming

Langston’s tendency to steal, it is not overly broad, as it is reasonably related to

rehabilitating this particular defendant and protecting the public that works and

shops in Indianapolis-area Family Dollar stores.



                                        Conclusion

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020   Page 8 of 9
[9]    The condition of Langston’s probation requiring that he stay away from all

       Family Dollar locations in Marion County is not overly broad and the trial

       court therefore did not abuse its discretion in imposing this condition. The

       judgment of the trial court is affirmed.


[10]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020   Page 9 of 9
