Case Information

*1 MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE 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 I N T H E

COURT OF APPEALS OF INDIANA Leroy Butler, April 7, 2017 Court of Appeals Case No. Appellant-Defendant,

73A01-1609-CR-2238 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable R. Kent Apsley, Judge Appellee-Plaintiff

Trial Court Cause No. 73D01-1508-F2-8

Vaidik, Chief Judge.

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 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 Butler argues that the probation condition regarding alcohol is

unconstitutionally vague or overbroad. “Probation is a criminal sanction where *3 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), . 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] 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 *4 in its application. 911 N.E.2d 700, 714 (Ind. Ct. App. 2009), . Accordingly, we remanded for the trial court to provide clarification. 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. Remanded with instructions.

Bailey, J., and Robb, J., concur.

[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).