FOR PUBLICATION


ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

RONALD K. SMITH                              GREGORY F. ZOELLER
Muncie, Indiana                              Attorney General of Indiana

                                             KATHY BRADLEY
                                             Deputy Attorney General
                                             Indianapolis, Indiana
                                                                           FILED
                                                                       Jul 17 2012, 9:07 am
                            IN THE
                                                                              CLERK
                  COURT OF APPEALS OF INDIANA                               of the supreme court,
                                                                            court of appeals and
                                                                                   tax court




MARK GAITHER,                                )
                                             )
     Appellant-Plaintiff,                    )
                                             )
            vs.                              )      No. 18A02-1111-MI-1073
                                             )
INDIANA DEPARTMENT OF CORRECTION,            )
et al.,                                      )
                                             )
     Appellees-Defendants.                   )


                  APPEAL FROM THE DELAWARE CIRCUIT COURT
                      The Honorable Marianne L. Vorhees, Judge
                           Cause No. 18C01-1008-MI-48



                                   July 17, 2012

                            OPINION – FOR PUBLICATION


BAKER, Judge
       In this case, the Plaintiff was convicted of two counts of child molesting. In 1999,

the General Assembly enacted two statutes requiring that sex offenders on probation

and/or parole be prohibited from living within 1,000 feet of a school. These statutes were

enacted several years after the Plaintiff committed his offenses. Accordingly, Plaintiff

contends that the residency restriction placed on him by the statutes violates the Ex Post

Facto Clause contained in the Indiana Constitution.

       Insofar as conditions of probation must reasonably relate to the offender’s

rehabilitation and the conditions of parole must reasonably relate to the person’s

successful reintegration into the community, the trial court and/or parole board could

have imposed the residency restriction in the absence of the statutes. Consequently, the

residency restriction placed on the Plaintiff presents no ex post facto issue.

       Appellant-plaintiff Mark Gaither appeals the trial court’s order on his Motion for

Partial Summary Judgment, granting summary judgment in favor of appellees-defendants

Indiana Department of Correction, et al. (DOC). Specifically, Gaither argues that the

trial court erred by concluding that a probation rule prohibiting him from living within

1,000 feet of a school is permissible because the statute authorizing the rule was enacted

several years after Gaither committed his offenses. Finding no error, we affirm the

decision of the trial court.

                                          FACTS

       Between June 1, 1995, and August 6, 1996, Gaither committed the offenses of

child molesting, and in August 2008, Gaither was convicted of class B felony child

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molesting and class C felony child molesting and sentenced to ten years of incarceration,

with four years suspended to probation. Gaither was released from incarceration and

placed on parole and probation in April 2010. Gaither’s probation term is for four years,

but his parole term expired in July 2011.

       As a condition of both probation and parole, Gaither was prohibited from residing

within 1,000 feet of school property. Gaither owns property that is within 1,000 feet of

Northside Middle School in Muncie and wishes to reside at this address. Gaither and his

spouse have owned the property for over twenty years.

       In August 2010, Gaither filed a complaint seeking, among other things, to have the

trial court hold the residency restriction within Indiana Code section 35-42-4-11

unconstitutional as applied to him, and further enjoin the Parole Board and the Delaware

County Probation Office from imposing any residency restrictions.

       In February 2011, Gaither filed a motion for partial summary judgment on these

claims.   The DOC conceded that Indiana Code section 35-42-4-11, which imposes

criminal penalties on certain sex offenders for violations of the statute, was

unconstitutional as applied to Gaither based upon our Supreme Court’s holding in Pollard

v. State, 908 N.E.2d 1145 (Ind. 2009). The DOC, however, argued that the same was not

true for the probation and parole conditions restricting Gaither’s ability to reside within

1,000 feet of a school.

       On April 28, 2011, the trial court held a hearing on Gaither’s motion for partial

summary judgment. Following the hearing, the trial court issued an order concluding that

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Gaither could not be criminally prosecuted under Indiana Code section 35-42-4-11 for

living within 1,000 feet of school property. Nevertheless, the trial court cited to our

Supreme Court’s decision in Hevner v. State, 919 N.E.2d 109 (Ind. 2010), for the

proposition that trial courts enjoy a wide latitude in fashioning terms of a defendant’s

probation and that because the trial court could have imposed a residency restriction as a

probation condition at the time Hevner committed the molesting offense, no ex post facto

issue arose. The trial court analogized Hevner to the instant case and determined that “if

Gaither had been arrested and prosecuted for these offenses in 1995 and 1996, the trial

court judge at that time could have imposed these same residency restrictions on him as a

probation condition.” Appellant’s App. p. 74.

      Consequently, the trial court granted partial summary judgment in favor of

Gaither, finding that the provisions of Indiana Code section 35-42-4-11 could not be

enforced against Gaither based on his existing child molestation convictions. The trial

court also granted partial summary judgment in favor of the DOC, finding that the

condition of parole and probation restricting Gaither’s ability to reside within 1,000 feet

of school property while on parole and probation, could lawfully be imposed.           On

November 10, 2011, the trial court issued an order directing final judgment for the DOC.

Gaither now appeals.




                                            4
                             DISCUSSION AND DECISION

                                   I. Standard of Review

       Gaither appeals from the trial court’s grant of summary judgment in favor of the

DOC with respect to the residency restrictions imposed as a condition of parole and

probation. Summary judgment is appropriate only where there are no genuine issues of

material fact, and the moving party is entitled to judgment as a matter of law. Monroe

Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind. 2005); Ind. Trial Rule

56(C). An appellate court applies the same standard as the trial court when reviewing a

motion for summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d

604, 607 (Ind. Ct. App. 2008). We view the designated evidence in the light most

favorable to the nonmoving party. Id. at 608. Nevertheless, the party who lost a motion

for summary judgment has the burden of persuading the appellate court that the trial

court’s decision was erroneous. Ind. Republican State Comm. v. Slaymaker, 614 N.E.2d

981, 983 (Ind. Ct. App. 1993).

                                       II. Mootness

       As an initial matter, Gaither notes that his term of parole expired in July 2011 and

seems to only challenge the remaining probation condition restricting his residency.

Indeed, the parole condition limiting Gaither’s residency no longer applies to him and is

therefore moot.

       Generally, an issue is moot and this Court lacks jurisdiction when no effective

relief can be granted to the parties. Irwin R. Evens & Son, Inc. et al. v. Bd. of Indianpolis

                                             5
Airport Authority et al., 584 N.E.2d 576, 581 (Ind. Ct. App. 1992). “However, even

when the requested relief is unavailable, this court will review issues under an exception

to the general rule when the case involves questions of great public importance.” Id.

       In this case, whether a residency restriction can be a condition of a convicted child

molester’s parole, when the statute authorizing the imposition of that condition was not in

effect at the time he committed the offense is a question of great public importance.

Furthermore, it is an issue that is capable of repetition but likely to evade review as

defendants complete their parole before their cases ever reach the appellate court. See

Horseman v. Keller, 841 N.E.2d 164, 170 (Ind. 2006) (reaching the merits of a moot

elections issue because it was “capable of repetition, yet evading review”). Moreover,

because parole and probation conditions are viewed similarly by the courts, judicial

efficiency suggests that they be addressed together.

            III. Residency Restriction as a Condition of Probation and Parole

       Gaither argues that a trial court may not impose a punitive condition of probation

that is inconsistent with the ex post facto prohibition contained in the Indiana

Constitution. Gaither maintains that the condition of his probation prohibiting him from

living within 1,000 feet of a school, which prevents him from residing in the home he has

owned for twenty-four years, violates this prohibition.

       The Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be

passed.” Ind. Const. art. 1, § 24. Our Supreme Court has stated that the “underlying

purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that

                                             6
persons have a right to fair warning of that conduct which will give rise to criminal

penalties.” Hevner, 919 N.E.2d at 111.

      As stated above, Gaither challenges a condition of his probation and parole.

Probation is a criminal sanction where the convicted offender agrees to accept conditions

upon his behavior in lieu of incarceration. Carswell v. State, 721 N.E.2d 1255, 1258

(Ind. Ct. App. 1999).     A trial court has broad discretion to impose conditions of

probation, with the only limitation being that the conditions have a reasonable

relationship to the treatment of the accused and the protection of the public. Id. The

reviewing court is limited to considering whether the conditions imposed by the court on

the accused aid in the furtherance of the goal of “assuring that the probation serves as a

period of genuine rehabilitation and that the community is not harmed by a probationer

being at large.” Fitzgerald v. State, 805 N.E.2d 857, 864 (Ind. Ct. App. 2004). We will

not set aside terms of probation unless the trial court abused its discretion. Collins v.

State, 911 N.E.2d 700, 707 (Ind. Ct. App. 2009).

      Parole and probation conditions may be viewed together because “a person on

probation occupies a status similar to that of a person on parole.” Carswell, 721 N.E.2d

at 1262. The Indiana Parole Board is given authority to impose conditions beyond the

standard conditions for a person on parole if the conditions are reasonably related to the

parolee’s successful reintegration into the community and do not unduly restrict a

fundamental right. Weiss v. Ind. Parole Bd., 838 N.E.2d 1048, 1051 (Ind. Ct. App.

2005). “[T]he only practical difference between the two is that ‘probation’ relates to

                                            7
judicial action taken before the prison door is closed, whereas ‘parole’ relates to

executive action taken after the door has closed on a convict.” Carswell, 721 N.E.2d at

1262.

        In Hevner, a convicted sex offender challenged his requirement to register as a sex

offender on the basis that such a requirement was an ex post facto violation under the

Indiana Constitution. 919 N.E.2d at 110. Our Supreme Court held that Hevner was not

required to register as a sex offender and, for the same reason, could not be subject to

prosecution for violating the statute that prevented him from residing within 1,000 feet

from a school. Id. at 112-13.

        Hevner also challenged the condition of his probation requiring that he not live

within 1,000 feet of a school. Id. at 113. Our Supreme Court reached a different result

on this issue, concluding that “having been convicted of . . . a sex offense at the time

Hevner committed his crime, he is subject to conditions of probation that ‘have a

reasonable relationship to the treatment of the accused and protection of the public.’” Id.

(quoting Hale v. State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008)).

        Gaither attempts to distinguish Hevner on two grounds. The first one is somewhat

convoluted; however, Gaither seems to argue that Carswell, a decision that the Hevner

Court cited as support, was itself supported by a statute authorizing the probation rule.

This statute was in effect when Hevner committed his offenses but not when Gaither

committed his offenses. This argument is misplaced, inasmuch as the Hevner Court

specifically held that because Hevner had been convicted of a sex offense, he was subject

                                             8
to conditions of probation that were reasonably related to his treatment and protection of

the public, which included being prohibited from residing within 1,000 feet of a school.

Hevner, 919 N.E.2d at 113. Thus, this argument fails.

       Gaither also attempts to distinguish Hevner by highlighting the fact that he owned

his home before he committed his offenses.          Accordingly, Gaither claims that his

probation condition restricting his residency is unduly restrictive on his property interests

in his home.

       First, the Hevner Court made no distinction between ownership and mere

residency, and the fact that an offender owns a home in which he is not allowed to reside

during his term of probation or parole is immaterial in determining whether a condition of

probation or parole is related to an offender’s rehabilitation, while protecting the public.

       Notwithstanding the above, when an offender claims that a probation condition is

unduly intrusive on a constitutional right, the court must balance the following factors:

(1) the purpose to be served by placing the offender on probation; (2) the extent to which

constitutional rights enjoyed by law-abiding citizens should be afforded to those on

probation; and (3) the legitimate needs of law enforcement. Fitzgerald, 805 N.E.2d at

865.

       Carswell is instructive in balancing these factors in the instant case. Carswell

argued that a condition of his probation forbidding him from living within two blocks of

a school, playground, or any area where children congregate was an “exaggerated

response” to the State’s concerns. 721 N.E.2d at 1259. A panel of this Court disagreed,

                                              9
concluding that “[t]his type of condition is a protective measure for children who go to

such places and it will assist Carswell in his rehabilitation.” Id. The panel reasoned that

“[c]hild molesters molest children to whom they have access. . . . Conditions of probation

that reduce the potential for access to children are reasonable.” Id.

       Moreover, probation conditions may impinge upon a probationer’s right to

exercise an otherwise constitutionally protected right. Purdy v. State, 708 N.E.2d 20, 22

(Ind. Ct. App. 1999) (stating that “probationers simply do not enjoy the freedoms to

which ordinary citizens are entitled”).

       Here, Gaither is a convicted child molester. Although limiting Gaither’s residency

will not limit his access to all children, it will certainly reduce such access. And home

ownership does not determine whether a condition restricting residency is permissible.

Rather, to be permissible, the condition restricting residency must be reasonably related

to the offender’s rehabilitation. And as discussed above, Indiana courts have held that

prohibiting a sex offender from living within 1000 feet of a school as a condition of

probation is reasonably related to the offender’s rehabilitation and is permissible.

Consequently, Gaither’s argument fails, and we affirm the decision of the trial court.

       The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.




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