*1 BRATCHER, Anthony Scott
Appellant-Defendant, Indiana, Appellee-Plaintiff.
STATE
No. 90A02-1301-CR-3. Appeals of Indiana.
Nov. *3 IN, Attor- Uliana, Bargersville, R.
Stacy ney Appellant. for Zoeller, Attorney General
Gregory F. Babbs, Indiana, Attorney Deputy Eric P. IN, General, Attorneys Indianapolis, Appellee.
OPINION PYLE, Judge. THE CASE
STATEMENT OF ("Bratcher") ap Anthony Seott Bratcher sentence, guilty following his peals his molesting.1 felony B child plea, for Class the sex offender challenges also restrict his ac conditions that limit his internet and that cess to the children, they arguing contact with overbroad, unconstitutional vague, are to him. applied affirm. We 35-42-4-3(a). § 1. Ind.Code
ISSUES later, Two months while still probation, on Bratcher received his second Whether sentence is in- adjudication, this time for Class D felony appropriate pursuant to Ap- Indiana theft if committed an adult. Bratcher 7(B). pellate Rule spent another juvenile month at the cen- 2. Whether the trial court abused its ter, placed on probation for this theft discretion sex imposing adjudication in December and then probation conditions that restrict released from probation in August 2006. Bratcher's access to the internet and One month being after pro- released from his contact with children. *4 bation, Brateher received adju- his second FACTS for felony dication Class D theft if commit- by ted an adult. 4, 2012, On June eighteen-year-old pulled Bratcher down pants the of a five- 2007, In January while on probation for year-old A.E.D., neighbor girl, and then theft, thirteen-year-old Bratcher admitted "pee touched and kissed her pee" vagi- to molesting an eight-year-old neighbor (Tr. 27). nal area. immediately AE.D. boy and adjudicated was delinquent for reported the parents, molestation to her B felony child molesting Class if commit- who called police. the When the police by ted an adult. Bratcher spent the next Bratcher, interviewed he admitted that he plus years four on probation in various had touched and kissed vagina A.E.D.'s juvenile placement facilities for this child and stated that it him" when he "excite[d] molesting adjudication. After two and (Tr. 28). did so. Additionally, Bratcher years one-half in a more restrictive place- police told that he had also kissed A.E.D. ment, Bratcher was transitioned to a less on the lips. group placement. restrictive home How- The State charged Bratcher with Class ever, due interacting to and socializing felony B molesting. 19, child On October problems in this setting, he had to be 2012, pled guilty Bratcher charged with- moved back to a more place- structured plea agreement. out a The trial court held ment to "ensure he danger was not a to a sentencing hearing 10, on December 157). community." the (App. During the 2012. The presentence investigation re- four plus years juvenile of placement, he ("PSI") port Bratcher, revealed that who violated seven times and also years was nineteen old at sentencing, has a received a reprimand for A Class misde- history juvenile adjudications, including battery. meanor An addendum to the PSI adjudication an for B felony Class child reveals that Bratcher violated molesting if committed an adult. writing sexually explicit letter to a teach- juvenile Bratcher's adjudications began at er, pushing school, a duress button at age required twelve and placement in a breaking the leg a chair threatening and
juvenile facility from eigh- thirteen to it, staff with destroying property, engaging teen. behavior, in inappropriate failing Specifically, in August when comply with requests. staff old, Bratcher years was twelve he was adjudicated as delinquent running While Bratcher juvenile was these away facilities, from committing placement home and eriminal he participated in mischief. He spent one month in groups issues, the Allen to address offending "sex ("the County Juvenile Center juvenile cen- anger issues, management, addiction ter") and errors, was then juvenile released to thinking daily living skills." being eight First victim he created.
(Tr. placement, of his part As committed, Phase of Aftercare in the the offense was placed old when In Program. five, Offender it Sex concerns Adolescent second one now this offense within eighteen-year-old the he commits late October placement more, very period from short was released months or six adjudication place- his child molestation released from being from time mother. custody of his ment, to the concerned concerning. was returned Also that's later, Brateh- seven months Approximately presen- I read in the on what that based issue in molestation at er committed Mr. Bratch- investigation report[,] tence appeal. family and social not have er does my con- he is release and support when hearing, the State sentencing During the concerns, cern, one for Mr. I have two testimony from presented exit the going in that he is vari- scores on regarding officer literally support, no gates with prison instruments. ous risk assessment going to exit the concern is he is second explained officer *5 or very with little education prison gates System Assessment Indiana Risk counseling for his offenses training or ("IRAS") assessing an instrument for a categories now have shown by using apparently broad that all offenders here specific my tool concern is he pattern the STATIC 99 was bit of and while little risk of reof- assessing a sex offender's not receive some for reoffend if he does will explained officer fending. The I [Bratcher's] treatment. realize type of the IRAS indicat- Bratcher's score on up that sets him concern that this counsel's his risk to reoffend while a moderate for, given ed if he is up sets him for failure high revealed a on the STATIC 99 score but I also think any probation, time on reoffending on sex offenses. risk of counseling of it type some that without failure and also up him also sets hearing, Bratcher stated During the community at risk because places spent in the of the time he majority who has now have someone now we focused facilities was juvenile placement children and he's twice violated small interaction is- mainly anger on and social he very young man when going to be much on sex offender sues and not as in the placed and will be is released par- claimed that he did not therapy. He support sys- or no community with little therapy until the ticipate in sex offender in place. tem placement. months of his last few following miti- found the The trial court is and I'm The concern to the Court (1) by the moderate risk on surprised immediately not factors: gating (2) crime; and based the IRAS assessment Bratcher's confessed to the from spared the victim guilty plea, which with individuals experience Court's The trial court found testifying at trial. to be a situation charged with sex crimes circumstances: following aggravating no criminal they do have little or where (1) history; delinquent juvenile Bratcher's entirely not history and so the Court's old; (2) five young age victim's of IRAS I with the assessment. surprised (3) history violating juvenile little 99 indicator is a think the STATIC Bratcher, the sentencing probation. When it he as well as shows appropriate more court stated: I trial to reoffend. high be a risk would reflects the position the State's this is think
Concerning the is that Court 1) the De- has has concerns victim [Bratcher] now the second be fendant held accountable for his ac- a computer, iPod, Xbox, cell phone, 2) tions; gives and him potentially Blackberry, personal digital assistant he'll part resources need to be (PDA), Pilots, pagers, televisions, Palm society or ultimately going any because he's other electronic any at device location society (including your be back in in this community place employ- ment) onee he's finished without serving prior approval his sentence your and so officer. hopefully put he can an end to This includes any In- provider, behavior and ternet service stop victimizing bulletin individuals board system, potentially system e-mail productive any become a or other pub- lie or private computer adult and do what he needs to do to network. You shall manage urges possess not or things that he use eneryption - technique program. or apparently has here. rection and five
years executed in the Department of Cor- twenty (Tr. 40). The trial court (20) year sentence, (5) years with fifteen then suspended to imposed a (15) instant messaging programs frequented 28. You are prohibited or using *# certain web [*] *# sites, [*] from chat [*] accessing room, . *t by children. You are prohibited from deleting, erasing, trial court also an or tampering issued Order of with in- your formation on general personal which computer condi- Probation, contained with intent to probation, activity tions of conceal an prohib- an Addendum Or- Probation, ited der of this condition. *Required which as a contained "special *6 condition of probation by of probation "as a IC 35-38-2- result of conditions" 2.2(4). sex offense conviction[.]" [Brateher's] . 39). (App. special These conditions includ- 40-41). (App. The trial court read these ed the following, which Bratcher chal- probation conditions to Bratcher during lenges in appeal: the sentencing hearing, and he did not
15. You shall have no any object did, however, contact with to them. Bratcher person under you of 16 unless ask the trial court if the regard- receive court approval or successfully ing restricted access to the internet was to complete a court-approved sex apply at all times only during probation. or 35- The trial court responded that it applied program, treatment pursuant to IC face-to-face, 38-2-24. Contact includes while he was on probation and instructed written, telephonic, electronic, any or in- him that speak he could to his direct contact . parties. via third officer about obtaining internet access. youth
years the Court. Brownies, 4-H, YMCA, YWCA, sports activity which involves children under 18 17. You shall not participate [*] # groups, Boy teams, age, *# # such unless [*] [*] as, Seouts, given permission by but not limited [*] *# Girl [*] a in Scouts, youth [*] [*] to, tion conditions." and signed the Addendum Order of Probation probation officer because Bratcher would be able to talk with his to Bratcher (Tr. 47). The trial court responded that agreed internet the future[.]" applications replied to comply with for that he would need access about "how (App. employment were "all online now." (Tr. 47). 41). "special Bratcher now [he could] purposes Bratcher proba- do 21. You shall not access the Internet or appeals special his sentence and these pro- any other on-line through service use of bation conditions.
870 sen- appropriate an fashioning to use
DECISION Sharp v. offender." tence for a convicted 1. Sentence (Ind.2012). 647, 650 State, N.E.2d 970 his sentence contends Bratcher sus- include tools"-which "penal These molesting convie- child felony B his Class sentence, portion a of all or pension Bratch- Specifically, inappropriate. tion is detention, community cor- home probation, imposition the trial court's argues er time executed placement, program rections inappro- sentence "maximum" of the facility, con- of Correction Department in a convie- his first adult it was because priate sentences, than consecutive current rather (Bratch- pled guilty. he and tion because an inte- and fines-"form and restitution trial that the suggests also Br. He er's penalty aggregate part of the actual gral his risk assess- considering erred court properly and are thus by defendant faced on the STATIC ment scores subject sentence part as of the considered to revise his sentence to asks this Court (cit- revision." Id. appellate to review (10) with years of ten advisory term N.E.2d v. ing Davidson (4) suspended four (Ind.2010)). if it is revise a sentence mayWe whether a sen determining When of the of the nature light
inappropriate acknowledge inappropriate, tence is the offender. character of and the offense starting "is the 7(B). advisory sentence that the The defendant Rule Appellate Ind. an has selected as Legislature point us that his persuading the burden has crime com for the Childress sentence inappropriate. appropriate is sentence (Ind.2006). Childress, N.E.2d at 1081. mitted." 7(B) review Here, charged role of a Rule principal pled guilty The the outli attempt charge to leaven molesting be to child felony "should B the Class principles ers, identify guiding some agreement2 plea a written without with charged those courts and felony for trial is B range for Class sentencing statutes, sentencing of the improvement (20) (6) years, with twenty between six *7 'correct' perceived a not to achieve (10) but years. being ten advisory sentence the State, v. in each case." Cardwell result imposed § The trial court 35-50-2-5. I.C. (Ind.2008). 1219, Wheth 1225 895 N.E.2d (20) sentence, with fifteen twenty year a ultimately inappropriate is er a sentence (5) (15) years sus and five years executed defendant, of the culpability on "the turns pended probation. to crime, damage done severity of the conten first address Bratcher's We others, other factors myriad and a of to inappropriate be his sentence is tion that ease." Id. at light given in a that come to sentence. We it was a "maximum" cause law, Indiana Additionally, "[uJnder 1224. pur- that "for explained previously trial court have available to the tools are several 1231, (Ind.Ct.App.2013) 1234 n. N.E.2d 35-35-3-3(a) § Indiana Code 2. We note that - agreement felony 256, plea State, on a requires a that (quoting Davis However, writing" and "before the charge made "in ex (Ind.Ct.App.1981)). be we also . Recently, guilty." plea of defendant enters a agreement an plained that "failure to reduce " purpose behind explained '[tlhe that a suffi writing not itself be deemed to need § to insure that 35-35-3-3] Code is [Indiana rejection" a defendant's ground cient for guilty his plea defendant does not base a Gil, 1234 n. 2 guilty plea. 988 N.E.2d at prosecutor promises made certain State, 501 N.E.2d (quoting Centers v. accepted the judge in fact not has where (Ind.1986)). 417-18 v.Gil recommendation.'" [Sitate's 7(B) review, ing sentences to the advisory term based of Rule a maximum poses just sentence is not a sentence maxi- trust, on the lack position defendant's length, fully mum but a executed sentence the lack evidence showing physical foree to length" "[alnything victims, of maximum and that and the defendant's lack of harsh, placement community less be it history criminal for child molesting or any corrections, probation, Tyler, other sex offense. avail- 9038N.E.2d at other prison, able alternative is simply to not a Here, however, Bratcher does have a history eriminal maximum sentence." Jenkins v. specifically involves a 1085-86 (Ind.Ct.App.2009), prior child molesting. Here, trans. demied. the trial court sus- Indeed, in turning our foeus to Bratch- pended portion of Bratcher's sentence character, er's we see from the record that Thus, placed him on Bratcher-who eighteen years was old at Bratcher did not receive a maximum sen- the time of his offense-has amassed a 7(B). purposes tence for of Appellate Rule history criminal consisting of five juvenile See id. adjudications began age at twelve and Moving required placement to juvenile the nature of facility offense to which he from thirteen pled guilty, eighteen. we can see Most trou- bling is that Bratcher has a adju- us, juvenile from the record before which includes police report dication B felony was attached to the Class child molesting, for PSI, that A.E.D. was which is the same playing with other offense he committed here neighbor's against children at a A.F.D. house where When Bratcher was staying. years Bratecher was After thirteen old the other chil and on for theft, he adjudicated a delinquent left, for dren Bratcher went inside the house felony with A.E.D. Class B five-year- Bratcher kissed the child molesting for molest- girl lips, pulled ing eight-year-old old on the an pants, neighbor boy. down her He spent and kissed and touched the rest of vaginal juvenile her area. life in various juvenile placement told police that he thought facilities for this child molesting adjudication. time, AE.D. was eight During or nine old. Bratcher also he violated police told that he was seven going times and re- reprimand touch A.E.D.'s ceived a pants committing butt under her battery. that he As stopped part placement, when of his placed AE.D.'s father he was knocked on the door. Aftercare Phase of the Adolescent Sex Program. Offender Bratcher was released Bratcher attempts to minimize the na- *8 juvenile from placement to the cuétody of ture of his by offenses arguing that his his mother when he eighteen years offense was "not more egregious than the However, old. approximately seven average molest" because he was in not release, months after his he committed the position of trust physically and did not child molestation at issue in appeal. (Bratch- harm or threaten to harm A.E.D. 7). Arguing State, that he is not the worst of the er's Br. Citing to Tyler v. 908 (Ind.2009), N.E.2d offenders, Bratcher ar- worst urges Bratcher this Court to young gues that "the nature of look at his age, willingness his to offense is [his] more in line with the advisory sentence as plead guilty, and his troubled childhood contemplated legislature." when assessing his character. Bratcher (Bratcher's 8). argues guilty plea that his Br. sig Tyler, In our "reflect[ed] Indiana Supreme Court revised nificantly the defendant's on his character" and seems to two enhanced A felony Class child suggest molest- that it given proper was not con in- risk assessment department's bation (Bratcher's court. by the trial
sideration as to serve "are not intended strument however, record, that reveals Br. Bratcher's mitigating cireumstances recognized court aggravating the trial found sentencing specifically him and sen- gross length when to determine the nor to the crime to confess willingness his Malenchik circumstances. mitigating guilty plead (Ind.2010). Instead, "of- these Furthermore, extent that Bratcher to the appro- are assessment instruments fender weight signifi of the challenging the is con- judicial for supplemental tools priate allocated to trial court cance be used sentencing" and can at sideration argument. See reject such guilty plea, formulating the man- "in by the trial court 482, 491 Anglemyer v. is to be served." in which a sentence ner (Ind.2007) the relative (explaining Id. mitigators is not sub assigned to weight review), reh'g, on appellate Here, ject trial court used clarified (Ind.2007). for- reoffending N.E.2d 218 when risk of assessment sentence and decid- mulating Bratcher's the PSI reflects acknowledge that We Thus, Bratcher on ing place a troubled child- that Bratcher has had by considering err did not the trial court reported to hood. Bratcher craft- reoffending when Bratcher's risk of had the PSI that he compiled who officer Indeed, the record be- ing his sentence. mother and abused his physically been just that Bratcher is not fore us indicates that he had been molested stepfather and reoffend. reoffending; he did at a risk eight when he was by his brother Moreover, the current child he committed reported further that he old. Bratcher mere months of molesting atten- offense within taken medication for previously had disorder, conduct hyperactivity deficit juvenile placement tion released from being disorder, Bratcher also depression. molesting. adjudication for child from stepfather mother and reported that his Furthermore, PSI indicates at him that he was not welcome informed therapy, received sex offender incarcer- their home his release from place- juvenile he elaims that his although ation. offender thera- ments did not focus on sex No matter until the last few months. py childhood that Bratcher's troubled
While therapy he intensity or duration what juvenile adjudications resulted received, that he did supports the record juvenile facilities is consid- placement but character, therapy so too indeed receive sex in a review of his eration juvenile in those facil- in effec- is his behavior while treatment did not result that such proba- violated repeatedly ities. Bratcher tive rehabilitation. dispositional orders. tion under his various that his persuaded has not us of all these violations was significant Most Therefore, we inappropriate. is sentence *9 molesting child that Bratcher committed sentence. affirm the trial court's juvenile probation for theft.
while on Finally, reject sug Bratcher's we 2. Probation Conditions erred refer gestion that the trial court contends that four of his sex scores ring to Bratcher's risk assessment conditions are "uncon probation Supreme Our Indiana on the STATIC 99. (Bratcher's to him." applied stitutional as pro- that scores on a explained has
873 Specifically, argues State, Br.3 Taylor valid." v. 756, 820 N.E.2d probation that the conditions that re 761 (Ind.Ct.App.2005) (quoting Johnson v. two strict his contact and interaction with chil State, 194, 659 N.E.2d 200 (Ind.Ct.App. (conditions 17) 1995), denied), vague dren 15 and are reh'g denied. See trams. overbroad and that the two conditions re also Gaither v. Indiana Dep't Correc lating to his usage restrictions internet tion, 690, 971 N.E.2d 695 (Ind.Ct.App. on 23) 21 and 2012) (explaining that "probation condi unduly {conditions are intrusive. Bratcher asks that we the trial court may tions impinge upon probationer's order to vacate these probation four conditions. right to exercise an otherwise constitution ally protected Where, right"). here, "Probation is a criminal sanc defendant contends that a probation condi tion wherein a specifi convicted defendant tion is unduly intrusive upon a constitu cally agrees accept to upon conditions his right, tional the following three factors behavior in imprisonment." lieu of Cars (1) must be balanced: the purpose sought State, (Ind. 1255, well v. 721 N.E.2d 1258 (2) to by probation; be served the extent Ct.App.1999).Trial courts have broad dis- to which rights enjoyed constitutional eretion in determining appropriate law-abiding citizens should be to conditions of a afforded defendant's (8) probationers; and legitimate needs (Ind. 109, Hevner v. 919 N.E.2d 113 State, State, "This discretion is law enforcement. only by limited Smith v. 111, the principle the conditions imposed N.E.2d (Ind.Ct.App.2002), trams. denied. must be reasonably related to the treat
ment of the defendant and protection A. Waiver public State, safety." Stott v. 176, 179-80 (Ind.Ct.App.2005), Before turning to our review Thus, trans. denied. "our review is essen challenged conditions, Bratcher's probation
tially limited to determine whether
the we first address the State's waiver argu
placed
conditions
on the defendant are rea ment. The
argues
State
that Bratcher has
sonably related to attaining
goals."
these
any challenge to
con
waived
Carswell,
conditions that intrude constitutional acknowledge We that our Court has is- ly rights are not necessarily in differing opinions sued protected regarding whether argues case."), While Bratcher that these particular trans. denied. Some of conditions are unconstitutional applied" "as challenged probation conditions him, applied" note that an "as chal- are require based on statutes imposi- lenge generally applies only challenge to a tion of certain restrictions for sex offenders. regulations. statutes or See Harris v. See, 35-38-2-2.2; e.g., §§ Ind.Code 35-38-2- 774 n. (Ind.Ct.App.2013) Bratcher, however, 2.4. challenge does not ("An applied' challenge 'as reviewing asks a underlying the statutes condi- challenged court to declare reg- statute or *10 tions. ulation unconstitutional on the facts of the
874 probation to with Children objection lack of B. Contact
a defendant's waive an level will the trial at conditions two following challenges the those conditions. challenge to appellate limit that conditions probation sex Stoft, panels of Indeed, with children: two his contact in Hale and or restrict defen- any the individual contactwith held that have no 15. You shall our Court appellate waived cases had you in those dants of 16 unless under the person successfully conditions probation their or approval review of court receive conditions sex offender probation a failing object complete to to court-approved ' 35- pursuant to IC program, treatment 888 hearing. sentencing at Hale face-to-face, Stott, 319; at 179. N.E.2d includes at 822 38-2-2.4. Contact N.E.2d written, electronic, or in- telephonic, 511, State, N.E.2d 990 Patton v. See also parties. via third contact direct Hale, 888 (citing (Ind.Ct.App.2013) 514 319). N.E.2d at in any participate shall not 17. You However, 877 v. Piercefield 18 under involves activity which children (Ind.Ct.App.2007), N.E.2d to, as, but not limited age, such Court, denied, panel another of this trans. Scouts, Scouts, Girl Boy youth groups, a defen argument that rejected the State's YWCA, Brownies, 4-H, YMCA, youth challenge proba to a had waived his dant teams, given permission sports unless object to to the by failing tion condition the Court. by signing probation 40). (App. The condition form. Piercefield argues probation these probationary con appeal an analogized overbroad, sug- vague are conditions sentence, "which appeal of a ditions to an sufficiently clear they are not gesting that insisting that the may review 'without we would result him of what conduct to inform the trial to presented claim first be The State con- in a violation " challenge probs- to
judge'
and held that
sufficiently
conditions are
tends that both
be
need not be raised
tionary conditions
conditions
clear and asserts
appellate
permit
court
to
fore the trial
already been
have
with similar restrictions
N.E.2d at 1218
Piercefield, 877
review.
again
be
by this Court and should
upheld
(quoting Kincaid
in this matter.
(Ind.2005)).
Piercefield
ob
previously
has
Our Court
signa
held that the defendant's
Court also
chil
molesters molest
served that "child
did not consti
form
ture on
Smith,
they have access."
to whom
dren
appeal.
Id.
a waiver of the issue on
tute
Corswell,
(citing
Turning to
challenge
Bratcher's
prohibit
strued to
probationer
from inad-
probation
reject
we
Bratch
vertent or unintentional contact with mi-
suggestion
er's
that we should overturn his
nors.
Id. at 178 (citing Smith v.
probation condition as we did the proba
768 (Ind.Ct.App.2000)). Thus,
tion conditions in McVey or
In
Collins.
Rexroot,
we held that
the probation
McVey, we held that
probation
condi
condition prohibiting contact with minors
prohibited
tion that
the defendant from was neither vague nor overbroad. Rex-
being alone with or having contact-in
roat,
Here, however, Bratcher's dren); Stott, (hold- condition 15 at 179-80 prohibition contains no ing that against Instead, "incidental the defendant's probation contact." condi- we find tion that restricted his contact with condition sub- minors stantially similar protective to the was a probation condition measure for children and upheld Rexroat v. 966 N.E.2d would assist the defendant his rehabili- (Ind.Ct.App.2012), trans. denied. In tation). Thus, we conclude that the trial
876 adequate provide is condition] tion by impos- its discretion not abuse
court did
15.
stan-
predictable
condition
with a
ing probation
defendant]
[the
regard.
actions in this
for his
dard
that
the lan
suggests
re
in
Collins,
which
Just as
condition
N.E.2d at
guage
of
restricting
Collins,
that
any
in
we conclude
"participat[ing]
him from
stricts
condition
under 18
language
children
of
which involves
activity
stan
unconstitutionally vague
predictable
him
awith
age,"
provides
of
is
years
vague.5
that it would
impermissibly
contends
not
dard and is
or overbroad
constitutionally-protect Thus,
challenge to condition
him from
Brateher's
prohibit
activities,
ser
attending church
such as
See,
ed
also
eg.,
merit.
id. See
is without
acknowledges, our
Smith,
(upholding pro
As
vices.
779 N.E.2d at
proba
this exact
already upheld
has
that
specifying
probation
bation condition
Collins,
in
that
activities
In
we
participate
er could "not
in
condition
Collins.
tion
language,
that some of
acknowledged
eighteen,
children under
involve
isolation,
vague but ex
in
when take
Girl Scouts" and
Boy Scouts and
such as
was nevertheless
why the condition
plained
that
explaining
acceptable.
measure for children
protective
was a
rehabil
probationer
would assist
probation condi
conclude that
[the
[Wle
somewhat
consists of
issue]
tion at
itation).
result,
conclude that
As a
we
be
might
that
otherwise
vague language
not abuse its discretion
trial court did
sufficiently clari
were it not
inadequate
condition 17.
imposing
While
stipulation.
elsewhere
fied
Usage
C.
Internet
activity which
acknowledge
"any
age"
under 18
involves children
challenges the fol
Bratcher also
would,
alone,
no
provide for
standing
if
probation condi
lowing two sex offender
behavior, the
predictable standard
his internet
limit or restrict
tions
prohib
a list of
stipulation also included
usage:
Scouts,
activities,
"Boy
including
ited
Internet or
not access the
21. You shall
Brownies, 4-H, YMCA, YWCA,
youth
or
use of
through
on-line service
any other
teams[,]"
examples
are all
which
sports
Xbox,
iPod,
computer,
phone,
cell
a
typically
activities
su
organized youth
digital assistant
Blackberry, personal
conclude
by adults We
pervised
televisions,
Pilots,
(PDA),
Palm
pagers,
sufficiently clarifies that Col
list
above
any
device at
any
or
other electronic
in a
not
be one of those adults
lins is
your place
employ-
(including
location
in the named or similar
supervisory role
ment)
your
prior approval of
without
So, contrary to
de-
organizations.
[the
any In-
This includes
probation officer.
assertion,
.
we conclude that
fendant's]}
board
provider, bulletin
ternet service
pre
would not
probation condition]
[the
pub-
other
system
e-mail
or
system,
attending activities such
him from
vent
network. You
private computer
lie or
services,
it would
church
but
any encryption
possess
not
or use
shall
Sunday
teaching
from
prevent him
technique
program.
or
youth group
at
supervising
or
School
proba-
language
[the
the church.
Collins,
vague."
5. We note that
(Crone, J., dissenting).
probation condition in Col-
to the
dissented
lins, concluding
"unconstitutional-
that it was
prohibited
23. You are
from accessing
§
Code
35-42-4-12 as unconstitutional and
sites,
room,
using
certain web
chat
or
seeking permanent
injunction against en
*13
messaging programs
instant
frequented
Doe,
forcement of the statute.
705 F.3d at
by children. You are prohibited from 696. The version of this
in
statute
effect
deleting, erasing,
tampering
or
with in
at the time the defendant class filed its
your personal computer
formation on
provided
suit
that it was a Class A misde
with intent to
activity prohib
conceal an
meanor if a sex
knowingly
or
by
ited
this
*Required
condition.
as a
intentionally
sites,
used
networking
social
835-38-2-2,2(4)
probation by
condition of
IC
instant messaging, or chat room programs
]
[6
that the offender knew were
by
accessible
40-41).
(App.
person
less than eighteen years old. See
35-42-4-12(e).7
Bratcher
§
Ind.Code
contends that these
Applying an
conditions that restrict his
usage
internet
serutiny
intermediate level of
to the con
overbroad,
intrusive,
are
unduly
and vio
statute,
tent neutral
the Seventh Circuit
late his First
rights
Amendment
because Court held that
§
Indiana Code
35-42-4-
they place an
prohibition"
"entire blanket
12 was unconstitutional because it was "not
(Bratcher's
on his access to the internet.
narrowly tailored to serve the state's inter
14).
Br.
acknowledges
that pro
est" as it "broadly prohibitfed] substantial
bation
containing
conditions
a similar in protected speech rather than specifically
ternet
restriction have
upheld
been
in targeting the evil of improper communica
nevertheless,
McVey;
he asserts
tion to minors."
Id. at 695. The Doe
holding McVey
should be "reconsidered" Court, however, cautioned that its opinion
light
of
holdings
in Harris v.
should not
interpreted
be
setting
as
limits
they are reasonably related to attaining CRONE, J., part, concur in dissent goals of rehabilitation and protecting part opinion. with public Indeed, our Court has ex CRONE, Judge, concurring part and plained that because "child molesters mo dissenting part. access[,]" lest children to they whom have conditions of that "reduce the Tconcur in the majority's opinion except potential for access to children are reason for the affirmance of condition Smith, able." 779 N.E.2d at (citing my Consistent with position in Col- Carswell, 721 N.E.2d at Finally, lins, I believe that condition is unconstitu- contrary to Bratcher's argument, neither tionally Therefore, vague. I respectfully imposes complete prohibition dissent as to that issue. on his use of the internet or social net working websites. Condition 21 simply re
quires him to acquire approval of his officer, specifi and condition 23
cally applies to "frequented by websites