971 N.E.2d 690
Ind. Ct. App.2012Background
- Gaither convicted of two counts of child molesting in 1995–1996;
- Statutes enacted in 1999 prohibit sex offenders on probation/parole from living within 1,000 feet of a school;
- Gaither, on parole/probation in 2010, was subject to a 1,000-foot residency restriction;
- Gaither owns property within 1,000 feet of Northside Middle School and seeks to reside there;
- Trial court granted partial summary judgment: statute not enforceable against Gaither for living within 1,000 feet on priors, but residency restriction could be imposed as a probation/parole condition;
- Gaither appeals, asserting the residency restriction violates the Indiana Ex Post Facto Clause and is an improper probation condition
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the residency restriction violates Ex Post Facto | Gaither argues ex post facto violation as statutes enacted after offenses impair his rights | DOC contends restrictions may be imposed as probation/parole conditions and do not violate ex post facto | No ex post facto issue; restriction permissible as probation/parole condition |
| Whether a residency restriction could be imposed by the court as a probation condition | Gaither asserts condition is unduly burdensome and not tied to rehabilitation | DOC/Hevner framework allows conditions reasonably related to rehabilitation and public safety | Restriction reasonably related to rehabilitation and permitted as probation/parole condition |
| Mootness and public-interest exception to review | Parole term expired; issue arises on probation condition still in effect and presents public importance | Issues moot but capable of repetition; public importance justifies review | Issue reviewed as capable of repetition and of great public importance |
| Standard of review for probation/parole condition challenges | Standard should protect constitutional rights against punitive probation terms | Court has broad discretion; must balance purpose, rights, and enforcement needs | Court may uphold probation/parole conditions balancing rehabilitation and public protection |
| Ownership vs residency distinction in evaluating restriction | Owning home for twenty years makes restriction unduly burdensome | Ownership status does not control admissibility; restriction can be permissible if related to rehabilitation | Ownership does not defeat validity; restriction upheld as reasonably related to rehabilitation |
Key Cases Cited
- Hevner v. State, 919 N.E.2d 109 (Ind. 2010) (probation condition may be related to treatment and public protection; ex post facto limitations apply to penalties, not probation decisions)
- Carswell v. State, 721 N.E.2d 1255 (Ind. Ct. App. 1999) (probation conditions restricting access to children may aid rehabilitation; right can be limited in probation context)
- Pollard v. State, 908 N.E.2d 1145 (Ind. 2009) (ex post facto considerations; warning rights of offenders)
- Hale v. State, 888 N.E.2d 314 (Ind. Ct. App. 2008) (probation conditions may be related to treatment and public protection)
- Fitzgerald v. State, 805 N.E.2d 857 (Ind. Ct. App. 2004) (balancing test for intrusion on constitutional rights when imposing probation conditions)