Antonio Waters v. State of Indiana , 2016 Ind. App. LEXIS 444 ( 2016 )

FILED
Dec 12 2016, 7:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah K. Smith Gregory K. Zoeller
Sugar Creek Law Attorney General of Indiana
Thorntown, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio Waters, December 12, 2016
Appellant-Defendant, Court of Appeals Case No.
06A05-1604-CR-863
v. Appeal from the Boone Circuit
Court
State of Indiana, The Honorable J. Jeffrey Edens,
Appellee-Plaintiff. Judge
Trial Court Cause No.
06C01-0809-FA-244
Vaidik, Chief Judge.
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Case Summary
[1] Antonio Waters pled guilty to criminal deviate conduct, battery resulting in
bodily injury, and strangulation after assaulting a woman in 2008. The trial
court entered a sentence of imprisonment to be followed by probation. The
court imposed the standard probation conditions but said that it would consider
sex-offender conditions at a date closer to Waters’ release from prison. Waters
did not object to this procedure. The day before Waters was released from
prison in 2016, the court held a hearing and imposed twenty-six sex-offender
conditions. Waters appeals the imposition of those conditions, arguing that
holding the delayed second hearing violated Indiana law and that, in the
alternative, seventeen of the twenty-six conditions are unnecessary and
inappropriate.
[2] We agree with the State that Waters waived any objection to the bifurcation of
the sentencing hearing. However, probation conditions must be reasonably
related to the defendant’s treatment and the protection of public safety. Several
of Waters’ conditions fall short of this standard. Applying our Supreme Court’s
holding in Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014), we conclude that the
trial court erred when it imposed four conditions that restrict Waters’ contact
with minors even though his offenses did not involve minors. Furthermore,
condition 26, which restricts Waters’ access to the internet, is overly broad in its
application. Waters’ internet restriction should be limited to websites that are
related to his offenses—such as dating websites and websites with sexually
explicit material—because the internet has become increasingly pervasive in our
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daily lives, and Waters did not use the internet to commit his crimes. We
affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[3] In September 2008, Waters went with S.C. to a bar, where they both consumed
several alcoholic drinks. They left the bar and went back to S.C.’s house.
Upon entering her home, Waters punched S.C. in the face, knocking her to the
ground. Waters locked the front door, straddled S.C. on the ground, and
continued punching her in the face and abdomen. S.C. fought to get Waters off
of her and repeatedly told him to stop. Waters removed S.C.’s pants and
underwear and attempted to penetrate S.C. but failed. Instead, he forced his
penis into her mouth. Waters also placed his hands around S.C.’s neck and
squeezed so hard that he left marks. S.C. was eventually able to break free and
run to a neighbor’s house, where she called police. S.C. told police she thought
Waters was going to kill her by strangulation. Waters was charged with
attempted rape, criminal deviate conduct, criminal confinement, battery
resulting in bodily injury, and strangulation.
[4] In October 2009, Waters reached a plea agreement with the State and pled
guilty to criminal deviate conduct, battery resulting in bodily injury, and
strangulation. As a condition of the plea agreement, the State dismissed the
charges for attempted rape and criminal confinement, and the parties agreed
that sentencing would be at the trial court’s discretion. In sentencing Waters,
the court found several aggravating factors: Waters was discharged from the
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military for “alcohol rehab failure,” Waters was convicted of assaulting another
female one month before attacking S.C., and Waters’ crimes against S.C.
occurred while he was on probation. Tr. p. 32. The court sentenced Waters to
twenty-one-and-a-half years with sixteen years to be served at the Indiana
Department of Correction (“DOC”) and five-and-a-half years to be suspended
to probation. The trial court prepared an Order of Probation, instructed Waters
to review it with his attorney, and informed Waters that he would “be on
probation while [he was] at the Department of Correction.” Id. at 37. The
court also told Waters it was imposing the standard conditions of probation but
delaying the imposition of sex-offender conditions, which would be “addressed
at a hearing to be held within thirty days of release.” Id. Waters did not object
to the trial court revisiting the issue of sex-offender conditions at a date closer to
his release from prison.
[5] On March 22, 2016, the day before Waters was released, the court held a
hearing to address his sex-offender conditions. Waters objected for the first
time to the bifurcation of his sentencing, which he said violated Indiana law.
The State noted that Waters waived this argument by failing to object when the
court explained this procedure in 2009. The State further argued that the court
properly bifurcated the sentencing hearing because it “wanted to see [Waters’]
prison progress report to see what he had done at the DOC before specifying
the terms of his probation” and that this delay was to Waters’ benefit.
Appellant’s App. p. 49. The court acknowledged that Waters waived any
objection to bifurcation and ruled that, in any event, the bifurcation was
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permissible. The court imposed eight mandatory conditions (conditions 1 and
3–9) and eighteen discretionary conditions (conditions 10–27).
[6] Waters now appeals.
Discussion and Decision
[7] Waters raises three issues on appeal. He makes two arguments as for why the
2016 hearing should not have been held. First, he notes that the trial court said
at the 2009 hearing that he would be “on probation” while incarcerated and
that the imposition of sex-offender conditions in 2016 therefore violated
Indiana Code section 35-38-2-2.3(b), which requires that the conditions of
probation be provided when a defendant is “placed on probation[.]” In the
alternative, Waters asserts that the six-and-a-half-year delay in sentencing
violated Indiana Criminal Procedure Rule 11, which provides that a defendant
shall be sentenced within thirty days of conviction. In his third argument,
Waters contends that even if the 2016 hearing was proper, the court erred when
it imposed seventeen of the eighteen discretionary sex-offender conditions.
I. March 2016 Hearing
[8] Waters’ first argument is based on Indiana Code section 35-38-2-2.3(b), which
provides, “When a person is placed on probation, the person shall be given a
statement specifying: the conditions of probation . . . .” (emphasis added).
Waters notes that the trial court told him during the 2009 hearing, “[Y]ou’ll be
on probation while you’re at the Department of Correction.” Tr. p. 37
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(emphasis added). Waters argues that the court placed him “on probation” in
2009 and that the subsequent imposition of the sex-offender conditions was
therefore barred by Section 35-38-2-2.3(b).
[9] Because Waters did not make this objection at the 2009 hearing, it is waived.
See Bogner v. Bogner, 29 N.E.3d 733 (Ind. 2015) (finding that a party waived his
argument on appeal when he did not object to the trial court’s decision to
proceed summarily rather than to hold a full evidentiary hearing); Bah v. Mac’s
Convenience Stores, LLC, 37 N.E.3d 539 (Ind. Ct. App. 2015) (holding that a
party waived her procedural and substantive arguments regarding a motion to
strike because she failed to object on either basis at trial and she specifically
consented to the court’s procedure), trans. denied. Waiver notwithstanding,
Waters’ argument still fails. When the trial court said that Waters would be
“on probation” while incarcerated, it was simply referencing the well-
established principle of Indiana law that a defendant can have his probation
revoked prospectively and his suspended time imposed even before he begins
the probation phase of his sentence. See Gardner v. State, 678 N.E.2d 398, 401
(Ind. Ct. App. 1997); Johnson v. State, 606 N.E.2d 881, 882 (Ind. Ct. App. 1993);
Ashba v. State, 570 N.E.2d 937, 940 (Ind. Ct. App. 1991), aff’d, 580 N.E.2d 244
(Ind. 1991). The court was not saying that Waters’ probation would begin
while he was still incarcerated. Probation is an alternative to incarceration.
McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007). The court
imposed all of Waters’ probation conditions, including the sex-offender
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conditions, before he was released to probation. There was no violation of
Indiana Code section 35-38-2-2.3(b).1
[10] Waters next argues that even if there was no statutory violation, the March
2016 hearing violated Indiana Criminal Procedure Rule 11, which states that a
defendant shall be sentenced within thirty days after conviction unless an
extension is granted. As with his first argument, Waters waived this objection
by failing to make it when the trial court said that it was delaying imposition of
his sex-offender conditions to a date closer to his release from prison. When a
defendant fails to object to the scheduling of a sentencing hearing for a day
beyond the thirty-day deadline, “[h]e cannot later claim error on appeal.”
Dudley v. State, 480 N.E.2d 881, 905 (Ind. 1985) (quoting Murphy v. State, 447
N.E.2d 1148, 1149 (Ind. Ct. App. 1983)).
II. Sex-Offender Probation Conditions
[11] Waters’ last argument is that even if the 2016 hearing was properly held, the
trial court should not have imposed seventeen of the discretionary sex-offender
probation conditions. A review of his brief, however, reveals that he only
challenges five of the conditions. The first four conditions explicitly restrict
1
We acknowledge that this Court has explained that “a defendant’s probationary period begins immediately
after sentencing.” Baker v. State, 894 N.E.2d 594, 597 (Ind. Ct. App. 2008); see also Rosa v. State, 832 N.E.2d
1119, 1122 (Ind. Ct. App. 2005); Crump v. State, 740 N.E.2d 564, 568 (Ind. Ct. App. 2000), trans. denied;
Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999), reh’g denied. This does not mean that a defendant is
“on probation” when he is incarcerated; it is simply another way of saying that a defendant’s probation can
be revoked prospectively while he is incarcerated, before he begins the probation phase of his sentence.
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Waters’ contact with minors: 17 (shall not engage in a sexual relationship with
any person who has a child under the age of sixteen), 20 (shall have no contact
with any person under the age of sixteen), 21 (shall not be present at schools,
playgrounds, or day-care centers), and 22 (shall not participate in any activity
that involves children under the age of eighteen). Waters contends that because
his victim was over the age of eighteen, any conditions that restrict his contact
with minors are unnecessary and inappropriate. Waters also challenges
condition 26 (shall not access the internet without prior approval from his
probation officer).2
[12] “Probation is a criminal sanction where 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.
2
Waters also contends that the trial court did not take into consideration the restrictions that the
discretionary conditions placed on his constitutional rights. He states, “The constitutional rights restricted by
the discretionary terms are broad and include free speech (term 26 relative to internet access) as well as the
right to avoid self-incrimination (term 24 relative to polygraph testing); the right to travel and free access
without state interference (term 16 which sets a curfew) . . . .” Appellant’s Br. p. 24. He does not support
these arguments with cogent reasoning or citations to relevant legal authority, so they are waived. See Ind.
Appellate Rule 46(A)(8)(a); City of Indianapolis v. Buschman, 988 N.E.2d 791, 795 (Ind. 2013). Waters also
argues that the court failed to consider his behavior while incarcerated and the programs he completed in
prison. Waters’ brief, however, does nothing more than list the programs he completed (SOMM Medium
Risk program, educational classes, anger management and relapse prevention classes, and 12-Steps Thinking
for a Change Program). Waters does not explain what these programs are or how they are relevant to his
probation conditions. Accordingly, this argument is also waived.
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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). “An abuse of discretion occurs when the decision is
clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id.
[13] As to the four conditions addressing minors—17, 20, 21, and 22—we agree
with Waters. The State does not cite any authority that supports the imposition
of these conditions in this case. Nor does it cite any evidence in the record that
supports the presumption that Waters is a particular threat to minors. Our
Supreme Court held in Bleeke v. Lemmon that because the defendant’s sex crime
was not against a minor and because there was no evidence that the defendant
posed a threat to children, parole conditions that restricted his contact with
children could not be viewed as “reasonably related to [his] successful
reintegration into the community.” 6 N.E.3d 907, 919 (Ind. 2014) (citations
omitted). We note that Bleeke was on parole and Waters is on probation and
that there is a difference between the two. Nevertheless, the Court’s rationale
can be applied to Waters: without any evidence that Waters poses a particular
threat to children, conditions 17, 20, 21, and 22 cannot be said to be reasonably
related to the treatment of the defendant and the protection of public safety. As
such, the trial court erred when it imposed these four conditions.
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[14] Waters also argues that the trial court erred when it imposed condition 26,
which would restrict his access to the internet.3 Waters’ argument relies on
Bratcher, where the defendant was convicted of child molesting and appealed, in
part, the sex-offender conditions that restricted his access to the internet. This
Court upheld the restrictions because they were not overbroad or vague, were
reasonably related to attaining rehabilitation goals and protecting the public,
and because “child molesters molest children to whom they have access.”
Bratcher, 999 N.E.2d at 879. Waters argues that Bratcher stands for the
proposition that only defendants who are convicted of a sexual offense against a
minor should have probation conditions that restrict their internet use. We did
not reach that conclusion in Bratcher nor do we reach it in this case. Restricting
someone’s access to the internet does more than prevent them from contacting
minors; it prevents them from contacting adults as well. However, we conclude
that as it is currently imposed, condition 26 is overly broad in its restrictions.
[15] The internet has become increasingly pervasive in our daily lives; we use it to
pay bills, order food, get directions, communicate with friends and colleagues,
and file taxes, among other things. Other courts have recognized that a sex
3
The condition states, “You shall not access the Internet or any other on-line service through use
of a computer, cell phone, iPod, Xbox, Blackberry, personal digital assistant (PDA), pagers, Palm
Pilots, televisions, or any other electronic device at any location (including your place of
employment) without prior approval of your probation officer. This includes any Internet service
provider, bulletin board system, e-mail system or any other public or private computer network.
You shall not possess or use any data encryption technique or program.” Appellant’s App. p. 40.
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offender who has no history of illegal internet use and did not use the internet
as an instrument in his crime should not have a total ban on his internet access
but rather a narrowly tailored restriction. See, e.g., United States v. Perazza-
Mercado, 553 F.3d 65, 72-73 (1st Cir. 2009) (holding that defendant did not use
the internet to engage in sexual conduct with a minor and that a total ban on
defendant’s internet use at home was inconsistent with the goals of supervised
release but a “narrowly tailored condition” would meet that goal); United States
v. Neeley, 675 F. Supp. 2d 655, 658 (W.D. Va. 2009) (holding that a total ban on
electronic devices was unreasonable for a child molester who violated probation
because he did not use the internet to find his victims or violate probation), aff’d
420 F. App’x 228 (4th Cir. 2011); State v. Cornell, 146 A.3d 895, 910-11 (Vt.
2016) (holding that a child molester who did not use the computer to commit
his crime should not have a ban on his internet use subject to the approval of his
probation officer because such a restriction creates a “greater deprivation of
liberty than is reasonably necessary to deter illegal conduct and protect the
public”) (citation omitted).
[16] Here, there is no evidence in the record to show that Waters used the internet to
commit his attack on S.C. or that he has a history of illegal internet use. The
trial court noted that Waters has “issues with respect to women,” not issues
with the internet. Tr. p. 33. In light of this observation, we acknowledge that
the internet has become a popular medium for people to meet, and it is one way
Waters could meet women. Modern technology affords the court the tools to
limit Waters’ access to certain dating websites and phone applications, as well
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as websites with sexually explicit materials—restrictions that are reasonably
related to his rehabilitation and the protection of public safety.4 For example,
the court can order that the parental controls on Waters’ phone be turned on,
can order that software be downloaded to Waters’ computer to block specific
websites, and can identify the category of websites to be blocked. On remand,
the trial court should impose a narrower internet restriction that is more in line
with Waters’ conviction and “issues with women.”
[17] Affirmed in part, reversed in part, and remanded with instructions.
Baker, J., and Najam, J., concur.
4
Condition 12 prohibits Waters from possessing any obscene matter as defined by statute and from visiting
establishments like strip clubs, adult bookstores, and businesses that sell sexually explicit devices. The
restrictions on Waters’ internet access should complement condition 12 by restricting his access to view
sexually explicit material online.
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