Leroy Butler v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 07 2017, 9:58 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leroy Butler, April 7, 2017
Appellant-Defendant, Court of Appeals Case No.
73A01-1609-CR-2238
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable R. Kent Apsley,
Appellee-Plaintiff Judge
Trial Court Cause No.
73D01-1508-F2-8
Vaidik, Chief Judge.
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Case Summary
[1] After Leroy Butler was convicted of dealing in methamphetamine and
maintaining a common nuisance, the trial court sentenced him to eighteen
years in prison to be followed by a term of probation. On appeal, he argues that
the probation condition that he not enter any establishment that sells alcohol is
overbroad. We agree and remand for further proceedings.
Facts and Procedural History
[2] In August 2015, Butler was arrested and charged with three felonies: dealing in
methamphetamine, possession of methamphetamine, and maintaining a
common nuisance. Following a jury trial, Butler was found guilty on all three
charges. At the sentencing hearing, Butler stated that he had a substance-abuse
problem, which began when he started drinking alcohol. The trial court merged
the possession and dealing charges and sentenced Butler to a total of twenty
years, with eighteen years to be served in the Indiana Department of Correction
and two years suspended to probation. Among the conditions for probation
was the following: “You will not consume alcohol. You will not visit a bar,
tavern, any place where alcoholic beverages are sold, bartered, or given away.”
Sent. Tr. p. 27. Butler appeals the imposition of that condition.
Discussion and Decision
[3] Butler argues that the probation condition regarding alcohol is
unconstitutionally vague or overbroad. “Probation is a criminal sanction where
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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. 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). When a defendant challenges
the constitutionality of a probation condition, this Court evaluates that claim by
balancing the following factors: “(1) the purpose to be served by probation, (2)
the extent to which constitutional rights enjoyed by law-abiding citizens should
be enjoyed by probationers, and (3) the legitimate needs of law enforcement.”
Id. at 515 (citing McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007)).1
[4] In Collins v. State, the defendant argued that his probation condition that
restricted his access to businesses that sell sexual devices or aids was
unconstitutionally vague or overbroad. We held that the condition restricted
the defendant’s ability to visit businesses like drug stores and was unfairly broad
1
Butler also challenges the condition that he “not associate with any person of bad character or reputation.
Anyone who’s likely to influence you to commit a crime.” Sent. Tr. p. 26. He argues that it is
unconstitutionally vague or overbroad, but he fails to cite to any legal authority to support his argument. He
also fails to provide an analysis under our law for determining whether this condition is unconstitutionally
vague or overbroad. See Patton, 990 N.E.2d at 515. As such, he has waived this argument. See Ind.
Appellate Rule 46(A)(8)(a).
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in its application. 911 N.E.2d 700, 714 (Ind. Ct. App. 2009), trans. denied.
Accordingly, we remanded for the trial court to provide clarification.
[5] Butler’s challenged condition states, “You will not consume alcohol. You will
not visit a bar, tavern, any place where alcoholic beverages are sold, bartered, or
given away.” Sent. Tr. p. 27. Following the same logic as Collins, we conclude
that this probation condition is overbroad. While we agree with the trial court
that prohibiting Butler from consuming alcohol is reasonably related to his
rehabilitation, restricting Butler from entering any establishment where
alcoholic beverages are sold would prevent him from entering a grocery store,
convenience store, and drug store and is unfairly broad. Accordingly, we
remand so that the condition may be revised to prevent Butler from entering
establishments where alcohol is sold by the drink for consumption on the
premises or the business’ primary purpose is the sale of alcohol. This would
permit Butler to enter grocery stores, drug stores, and convenience stores while
still meeting the goals of probation. See Waters v. State, 65 N.E.3d 613 (Ind. Ct.
App. 2016) (holding that probation conditions should be narrowly tailored to
the rehabilitation of the defendant but still protect the public). The State
concedes that this remedy is appropriate. See Appellee’s Br. p. 12.
[6] Remanded with instructions.
Bailey, J., and Robb, J., concur.
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