Kody Russell Oliver v. State of Indiana (mem. dec.) ( 2018 )

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.
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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.
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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.
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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.
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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.
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