MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                       Apr 26 2018, 9:13 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   CLERK
                                                                        Indiana Supreme Court
court except for the purpose of establishing                               Court of Appeals
                                                                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kody Russell Oliver,                                     April 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1711-CR-2739
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1112-FB-209



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018           Page 1 of 5
                                               Case Summary
[1]   Kody Russell Oliver (“Oliver”) challenges the revocation of his probation,

      arguing that the terms of his probation were unenforceable against him.


[2]   We affirm.



                                Facts and Procedural History
[3]   In August of 2012, Oliver pleaded guilty to Child Molesting, as a Class C

      felony. Thereafter, the trial court sentenced Oliver to six years of incarceration,

      with all six years suspended to probation. The court’s written sentencing order

      specified that Oliver was “told that he must register as a sex offender and sign

      sex offender special conditions.” Appellant’s App. Vol. II at 73.1


[4]   At some point, Oliver signed a document titled “Terms of Probation of the St.

      Joseph Circuit and Superior Courts.” Id. at 152. The document contains

      handwritten conditions, with lines that appear to state: “Obey Sex Off Spec

      Cond.” Id. Oliver also signed a document titled “Conditions of Probation for

      Adult Sex Offenders,” and initialed conditions throughout the document. Id. at

      153-156. One of the initialed conditions obligates Oliver to “attend, actively

      participate in and successfully complete a court-ordered sex offender treatment




      1
          We have not received a transcript of the sentencing hearing.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018   Page 2 of 5
      program as directed by the court.” Id. at 154. Another initialed condition

      provides that Oliver must “submit to random drug/alcohol testing.” Id. at 155.


[5]   On September 1, 2016, the State filed a petition to revoke Oliver’s probation,

      which it later supplemented with an addendum. The petition alleged, inter alia,

      that Oliver had failed to complete a sex offender treatment program and had

      failed to submit to a drug screen. After holding a hearing, the court determined

      that Oliver had violated these two conditions of probation, and ordered Oliver

      to serve two years of his sentence in the Indiana Department of Correction.


[6]   Oliver now appeals.



                                     Discussion and Decision
[7]   The trial court “may revoke a person’s probation if . . . the person has violated a

      condition of probation during the probationary period.” Ind. Code § 35-38-2-3.

      The court’s “probation decision is subject to review for abuse of discretion,”

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

      and circumstances. Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012).


[8]   Oliver does not dispute that he failed to complete sex offender treatment and

      failed to submit to a drug screen. He instead argues that these were not

      enforceable conditions of his probation.2 In so arguing, Oliver appears to




      2
          The State argues that Oliver has waived this argument; we elect to address the merits of Oliver’s appeal.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018                 Page 3 of 5
       chiefly rely on Indiana Code Section 35-38-2-2.3(b),3 which provides that

       “[w]hen a person is placed on probation, the person shall be given a written

       statement specifying . . . the conditions of probation.” According to Oliver, the

       court failed to give a proper written statement at the time he was placed on

       probation. Oliver also asserts in a footnote that being told to sign conditions “is

       not the same as being advised” of the conditions. Appellant’s Br. at 7.


[9]    However, even assuming arguendo that the court failed to comply with the

       probation statute, any error “is harmless if there is otherwise substantial

       compliance with the intent of the statute.” Menifee v. State, 600 N.E.2d 967, 969

       (Ind. Ct. App. 1992), clar’d on denial of reh’g. We have concluded that the intent

       behind the “statutory requirement of a written statement . . . 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.’” Seals v. State, 700 N.E.2d 1189, 1191 (Ind. Ct. App. 1998)

       (quoting Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind. Ct. App. 1989)).


[10]   Here, the written sentencing order indicates that Oliver was “told that he must

       register as a sex offender and sign sex offender special conditions.” Appellant’s

       App. Vol. II at 73. At some point thereafter, Oliver signed two documents—

       one indicating that he was to obey sex offender special conditions, and another

       setting forth those conditions. Thus, the record before us indicates that Oliver




       3
           Oliver directs us to Indiana Code Section 35-38-2-2(b), which has been repealed.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018   Page 4 of 5
       was adequately apprised of the conditions of his probation, and he has at most

       directed us to harmless error. See Ind. Trial Rule 61. We accordingly conclude

       that the trial court did not abuse its discretion in revoking Oliver’s probation.


[11]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018   Page 5 of 5
