Dustin McCarty v. State of Indiana ( 2018 )

FILED
Mar 20 2018, 9:41 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin McCarty, March 20, 2018
Appellant-Defendant, Court of Appeals Case No.
84A04-1707-CR-1599
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D01-1406-FD-1533
Mathias, Judge.
[1] Dustin McCarty was convicted in Vigo Superior Court of Class D felony
battery by bodily waste and Class A misdemeanor resisting law enforcement.
The trial court sentenced McCarty to two and one-half years with 290 days
executed and the remainder suspended to probation. McCarty appeals and
argues that the trial court erred by failing to provide him with written
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conditions of probation at sentencing and by imposing conditions that are
impermissibly vague and not reasonably related to his rehabilitation.
[2] We reverse and remand for proceedings consistent with this opinion.
Facts and Procedural History
[3] On June 3, 2014, Terre Haute Police Officer Philip Ralston (“Officer Ralston”)
was responding to a call that a woman was urinating in public when he
encountered McCarty. After checking his identification, the officer discovered
that McCarty had an outstanding arrest warrant. McCarty was arrested and
placed in handcuffs, and the officer began to transport him to the Vigo County
Jail.
[4] During the drive to the jail, McCarty spit on Officer Ralston. The officer
warned McCarty to stop or he would call for the mobile incarceration unit to
transport McCarty to jail. After McCarty spit on the officer a second time,
Officer Ralston pulled his vehicle over and two officers arrived to assist him.
[5] McCarty began to struggle when the officers attempted to remove him from the
vehicle. The officers eventually removed McCarty from the car and put him on
the ground. McCarty continued to struggle and kick, but the officers were able
to get McCarty under control before the mobile incarceration unit arrived.
[6] The State charged McCarty with Class D felony battery by bodily waste and
Class A misdemeanor resisting law enforcement. A jury trial was held on May
11, 2017, and McCarty was found guilty as charged.
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[7] The trial court ordered McCarty to serve an aggregate two-and-one-half-year
sentence. He was given credit for 290 days served, and the remainder of his
sentence was suspended to probation. The trial court ordered the standard
terms of probation and that McCarty “shall submit to a drug and alcohol
evaluation and remain compliant with their recommendations.” Appellant’s
App. pp. 103–4.
[8] Four days after he was sentenced, McCarty met with a probation officer, and he
signed a form acknowledging the conditions of his probation. The probationary
terms at issue in this appeal are:
2. You will avoid persons and places of harmful character, or a
person who is likely to influence you to commit a crime.
***
7. You will (not) consume alcohol in a lawful manner unless
ordered to abstain by the Court or any alcohol rehabilitation
program.
Id. at 107. The word “not” in the condition concerning alcohol use was
handwritten on the form. McCarty now appeals.
Discussion and Decision
[9] First, McCarty argues that the trial court was required, but failed to, provide
him with the specific terms of his probation at the sentencing hearing. Next,
McCarty claims that the probationary term restricting his alcohol use is not
reasonably related to his rehabilitation. And, finally, he argues that the
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probationary term concerning with whom and where he may associate with is
unconstitutionally vague or overly broad.
[10] “Probation is a criminal sanction wherein 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. Trial courts
have broad discretion in establishing conditions of probation to safeguard the
general public and to create law-abiding citizens. Patton v. State, 990 N.E.2d
511, 514 (Ind. Ct. App. 2013). “Conditions of probation should effectuate the
supervision required to achieve probation goals and, therefore, must be
functionally and rationally related to the probationer’s rehabilitative needs and
to society’s interests.” Id. We will only set aside a trial court’s terms of
probation when the court has abused its discretion. Id. An abuse of discretion
occurs when the decision is clearly against the logic and effect of the facts and
circumstances before it, or the reasonable, probable, and actual deductions to be
drawn therefrom. Id.
A. Written Conditions of Probation
[11] McCarty argues that the trial court erred when it failed to specify the terms of
his probation at the sentencing hearing and did not provide him with a written
copy of the conditions of his probation. Because McCarty did not receive the
specific terms of his probation until he met with his probation officer four days
after the sentencing hearing, he argues that “it appears that it was the probation
officer, and not the court, that determined the specific terms of McCarty’s
probation.” Appellant’s Br. at 9.
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[12] Indiana Code section 35-38-2-1 provides that “[w]henever it places a person on
probation, the court shall . . . specify in the record the conditions of the
probation[.]” And “[w]hen a person is placed on probation, the person shall be
given a written statement specifying . . . the conditions of probation[.]” 1 I.C. §
35-38-2-2.3(b). The intent behind Indiana Code section 35-38-2-2.3 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.” Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind. Ct.
App. 1989) (analyzing the predecessor to I.C. § 35-38-2-2.3). Although the trial
court errs by failing to provide the defendant with a written statement of the
conditions, the error is harmless if there is otherwise substantial compliance
with the intent of providing a defendant with prospective notice of the standard
of conduct required of him while on probation and prohibiting the imposition
of additional conditions after sentencing. Id.; see also White v. State, 560 N.E.2d
45, 48 (Ind. 1990) (finding no reversible error where substantial compliance
occurred, and defendant received written probation instructions three weeks
after his sentencing, thus “having ample time to comply with them”).
[13] At his sentencing hearing, McCarty was ordered to comply with the standard
conditions of his probation and undergo an alcohol and drug evaluation.
However, the trial court did not specifically state the standard terms of
1
The statute requires written notice, but it does not specifically require the trial court to provide written
notice.
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probation, and McCarty was not advised of the specific terms of his probation
until he met with his probation officer four days after his sentencing hearing.
[14] We can reasonably assume that the trial court is well aware of the standard
terms and conditions of probation. Indiana Code section 35-38-2-1 requires the
trial court to have specified the terms of McCarty’s probation on the date of
sentencing. However, McCarty has not established any general harm in the
four-day delay between his sentencing hearing and his receipt of the specific
terms of his probation.
[15] On the other hand, we can infer that McCarty’s probation officer altered
condition number 7, which in the original read: “You will consume alcohol in a
lawful manner unless ordered to abstain by the Court or any alcohol
rehabilitation program.” Appellant’s App. p. 107. McCarty’s probation officer
inserted the word “not” before the word consume. Id. The trial court did not
order McCarty to abstain from consuming alcoholic beverages. The court only
ordered an alcohol and drug evaluation and compliance with any resulting
recommendations.
[16] The probation officer’s unilateral and unauthorized alteration of a condition of
McCarty’s probation is precisely why it is important for the trial court to specify
the terms of probation and give a written statement of the conditions of
probation to the defendant at the sentencing hearing as is required by Indiana
Code sections 35-38-2-1 and -2.3. On remand, we direct the trial court to correct
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condition number 7 so that it does not need to be altered by probation
personnel in the future.
[17] Next, we address McCarty’s argument concerning the condition that he
undergo a drug and alcohol evaluation. At the sentencing hearing, the trial
court orally ordered McCarty to undergo an alcohol and drug evaluation.
However, this orally imposed condition of probation was not included in the
written statement listing the terms of McCarty’s probation.
[18] A trial court’s failure to provide written probation terms may be harmless if the
defendant has been orally advised of the condition and acknowledges that he
understand the condition. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App.
2013). In Gil, the trial court did not provide the defendant with a written
statement of the conditions of probation. The court stated that no contact with
the victim was a condition of probation, but the defendant never acknowledged
that he understood this as a term of his probation. Therefore, we concluded that
the court’s error in failing to provide written terms of probation was not
harmless and remanded the case to the trial court with instructions to provide
written terms of probation to Gil. Id.
[19] In this case, the trial court ordered McCarty to undergo an alcohol and drug
evaluation but never asked him to acknowledge that he understood that
condition of his probation. Sentencing Tr. p. 8. As the trial court continued its
sentencing statement and during its advisement of the right to appeal, the court
asked, “Mr. McCarty, are you listening to me?” Id. McCarty later
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acknowledged his right to appeal, but never indicated that he understood that
he was to undergo a drug and alcohol evaluation as a condition of his
probation. Therefore, on remand, we instruct the trial court to provide McCarty
with written terms of his probation which include a requirement that McCarty
undergo a drug and alcohol evaluation.
B. Whether the Drug and Alcohol Evaluation is Reasonably Related to McCarty’s
Rehabilitation
[20] McCarty also claims that the drug and alcohol evaluation is not reasonably
related to his rehabilitation because his offenses did not involve alcohol or
drugs. A trial court has broad discretion to impose conditions of probation, but
the conditions imposed must be reasonably related to the defendant’s treatment
and protection of the public. Slott v. State, 822 N.E.2d 176, 179–80 (Ind. Ct.
App. 2005), trans. denied.
[21] The officer arrested McCarty because there was an outstanding warrant for his
arrest. The warrant was issued because McCarty had been charged with
misdemeanor public intoxication and he failed to attend a court hearing. Tr. p.
42. McCarty was agitated when he was arrested and “appeared to be under the
influence” of something.2 Id. at 22. Approximately one week after he was
2
However, McCarty testified that he was not under the influence of alcohol or drugs at the time of arrest. Tr.
pp. 46–47.
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arrested in this case, McCarty pleaded guilty to Class B misdemeanor public
intoxication endangering a person’s life. Appellant’s App. p. 94.
[22] Because there is evidence in the record that McCarty was recently convicted of
an alcohol-related offense, ordering him to complete a drug and alcohol
evaluation is reasonably related to his rehabilitation. Moreover, our General
Assembly has specifically authorized trial courts to order convicted persons to
participate in treatment programs or addiction counseling as a condition of
probation. See I.C. § 35-38-2-2.3(a).
C. Is the condition that McCarty must avoid persons and places of harmful character
impermissibly vague?
[23] Finally, we consider McCarty’s claim that the following probationary term is
unconstitutionally vague or overly broad. The condition provides that McCarty
“will avoid persons and places of harmful character, or a person who is likely to
influence you to commit a crime.” Appellant’s App. p. 107.
[24] “A probationer has a due process right to conditions of supervised release that
are sufficiently clear to inform him of what conduct will result in his being
returned to prison.” McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007)
(citation omitted), trans. denied. To avoid being unconstitutionally vague, the
condition must be clear enough so that individuals of ordinary intelligence
would be adequately informed of the general conduct that is proscribed. Patton,
990 N.E.2d at 516. The condition “need not list, with itemized exactitude,
every item of conduct that is prohibited.” Id.
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[25] Our court reviewed a similar probation condition for vagueness in Clemons v.
State, 83 N.E.3d 104 (Ind. Ct. App. 2017), trans. denied. In that case, the
defendant argued that the following condition was impermissibly vague: “You
shall not associate with any person of bad character or reputation or with any
person who is likely to influence you to commit a crime or crimes.” Id. at 107
(record citation omitted). Our court agreed that the condition was vague and
stated:
The condition does not define what “associate” or “bad character
or reputation” mean in this context, nor is it clear how to identify
a person who could “influence” Clemons to commit a crime.
Because each of the terms in this condition is subjective, the
condition fails to inform Clemons what conduct would subject
her to revocation of her probation.
Id. at 109.
[26] “Persons and places of harmful character” are subjective terms that are not
readily defined. And what constitutes a place of harmful character is possibly
even more difficult to define than a person of harmful character. The only
objective example of a place of harmful character that readily comes to mind is
a known “crack” or drug house.
[27] For all of these reasons, we agree with McCarty that this condition of his
probation is impermissibly vague. On remand, we direct the trial court to clarify
this condition of McCarty’s probation so he is adequately informed of the
general conduct that is proscribed. See id.; Patton, 990 N.E.2d at 516.
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Conclusion
[28] Although the trial court erred when it failed to provide McCarty with written
conditions of probation at sentencing, the record does not indicate that
McCarty violated, or was arrested and charged with violating, any terms of that
probation in the four-day period between sentencing and his first appointment
with the probation department. For this reason, we can find that error to be
harmless error. But this case demonstrates the problems that can arise when a
defendant is not provided with clear and accurate written conditions of his or
her probation at sentencing. On remand, the trial court is instructed to (1)
correct the probation term that was altered by the probation officer; (2) provide
McCarty with written terms of his probation, which includes each condition of
probation; and (3) clarify and make more specific the probationary term that
McCarty is to “avoid persons and places of harmful character, or a person who
is likely to influence you to commit a crime” because this condition of
probation is impermissibly vague.
[29] Reversed and remanded for proceedings consistent with this opinion.
Najam, J., and Barnes, J., concur.
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