Adam Anthony Howe v. State of Indiana
25 N.E.3d 210
| Ind. Ct. App. | 2015Background
- In Jan 2005 Howe entered his former wife's home; during a physical altercation over a gun M.'s (then 3) grandmother was shot; M. witnessed the events.
- In June 2006 Howe pled guilty to multiple offenses; court sentenced with ten years of probation and a special condition: no direct or indirect contact with “the victims.”
- Howe sent a birthday card to M.; probation department letters (2008, 2013) told him children were included in the no-contact order and he could request modification.
- In Oct 2013 Howe petitioned to modify the no-contact condition to allow correspondence and visitation with his then-12-year-old daughter M.; he sought parenting-time arrangements.
- The State and M.’s mother opposed modification, citing M.’s trauma from witnessing the shooting and sole custody of the mother; trial court denied the petition and Howe appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused its discretion in denying petition to modify probation no-contact condition | Howe: M. is not a victim of the crime and court should allow contact/parenting time; best interest of child not considered | State: No-contact condition is authorized by statute, M. witnessed the crime and suffers trauma; court acted within discretion | Court: No abuse of discretion; nexus exists between crimes and protecting M.; denial affirmed |
| Whether child-witness qualifies as an "individual" protected by a probation no-contact order | Howe: Child should not be included | State: Child witnessed violent crime and is affected; qualifies for protection | Court: Child is an individual protected under statute given nexus to offense |
| Whether trial court should have questioned M. about her wishes | Howe: Court failed to inquire into M.’s desires | State: Not required in this criminal-probation context; mother’s statement sufficed | Court: Howe did not request such inquiry; absence of questioning did not make denial an abuse of discretion |
| Whether the no-contact restriction applies prior to actual start of probation | Howe: Implied challenge that order should not bar contact now while incarcerated | State: Probation condition remains until probation ends per letters | Court: Majority treats order as valid condition of probation and denies modification; concurrence notes arguable point that condition applies only once probation begins, but result same |
Key Cases Cited
- Bratcher v. State, 999 N.E.2d 864 (Ind. Ct. App. 2013) (trial courts have broad discretion over probation conditions)
- Jarrett v. State, 829 N.E.2d 930 (Ind. 2005) (court may condition suspended sentence on no-contact)
- Kopkey v. State, 743 N.E.2d 331 (Ind. Ct. App. 2001) (a defendant's probationary period begins immediately after sentencing)
- Crump v. State, 740 N.E.2d 564 (Ind. Ct. App. 2000) (probationary period can commence at sentencing)
- Gardner v. State, 678 N.E.2d 398 (Ind. Ct. App. 1997) (court may revoke or modify probation before completion of probationary period)
- Johnson v. State, 606 N.E.2d 881 (Ind. Ct. App. 1993) (trial court did not abuse discretion revoking probation before executed sentence completed)
- Nash v. State, 881 N.E.2d 1060 (Ind. Ct. App. 2008) (no-contact order must have nexus to the crime)
- Hines v. State, 856 N.E.2d 1275 (Ind. Ct. App. 2006) (court has discretion to prohibit contact or proximity to protected individuals under probation conditions)