Mark GAITHER, Appellant-Plaintiff, v. INDIANA DEPARTMENT OF CORRECTION, et al., Appellees-Defendants.
No. 18A02-1111-MI-1073.
Court of Appeals of Indiana.
July 17, 2012.
971 N.E.2d 690
While properly setting forth the “difference” as $8,147, the order at issue does not state in imperative form that Husband must pay that amount to Wife. Rather, the order awards Wife a sum of $12,664. As Wife agrees with the amount owed, in the interest of judicial economy and in accordance with Indiana Appellate Rule 66(C)(7), we order correction of the judgment to show an award of $8,107 in favor of Wife and instruct the trial court to amend its records accordingly.
Conclusion
The dissolution court did not abuse its discretion when it included Husband‘s IRA in the marital estate and then equally divided that estate. Likewise, the court did not abuse its discretion in denying Husband‘s motion to correct error on that basis. Because the court‘s order does not clearly state the judgment amount in imperative form, we order correction of the judgment to show an award of $8,107 in favor of Wife and instruct the trial court to amend its records accordingly.
Affirmed with instruction.
ROBB, C.J., and MATHIAS, J., concur.
Gregory F. Zoeller, Attorney General of Indiana, Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BAKER, Judge.
In this case, the Plaintiff was convicted of two counts of child molesting. In 1999, the General Assembly enacted two statutes requiring that sex offenders on probation and/or parole be prohibited from living within 1,000 feet of a school. These statutes were enacted several years after the Plaintiff committed his offenses. Accordingly, Plaintiff contends that the residency restriction placed on him by the statutes violates the Ex Post Facto Clause contained in the Indiana Constitution.
Insofar as conditions of probation must reasonably relate to the offender‘s rehabilitation and the conditions of parole must reasonably relate to the person‘s successful reintegration into the community, the trial court and/or parole board could have imposed the residency restriction in the absence of the statutes. Consequently, the residency restriction placed on the Plaintiff presents no ex post facto issue.
Appellant-plaintiff Mark Gaither appeals the trial court‘s order on his Motion for Partial Summary Judgment, granting summary judgment in favor of appellees-defendants Indiana Department of Correction, et al. (DOC). Specifically, Gaither argues that the trial court erred by concluding that a probation rule prohibiting him from living within 1,000 feet of a school is permissible because the statute authorizing the rule was enacted several years after Gaither committed his offenses. Finding no error, we affirm the decision of the trial court.
FACTS
Between June 1, 1995, and August 6, 1996, Gaither committed the offenses of child molesting, and in August 2008, Gaither was convicted of class B felony child molesting and class C felony child molesting and sentenced to ten years of incarceration, with four years suspended to probation. Gaither was released from incarceration and placed on parole and probation in April 2010. Gaither‘s probation term is for four years, but his parole term expired in July 2011.
As a condition of both probation and parole, Gaither was prohibited from residing within 1,000 feet of school property. Gaither owns property that is within 1,000 feet of Northside Middle School in Muncie and wishes to reside at this address. Gaither and his spouse have owned the property for over twenty years.
In August 2010, Gaither filed a complaint seeking, among other things, to have the trial court hold the residency restriction within
In February 2011, Gaither filed a motion for partial summary judgment on these claims. The DOC conceded that
On April 28, 2011, the trial court held a hearing on Gaither‘s motion for partial summary judgment. Following the hearing, the trial court issued an order concluding that Gaither could not be criminally prosecuted under
Consequently, the trial court granted partial summary judgment in favor of Gaither, finding that the provisions of
DISCUSSION AND DECISION
I. Standard of Review
Gaither appeals from the trial court‘s grant of summary judgment in favor of the DOC with respect to the residency restrictions imposed as a condition of parole and probation. Summary judgment is appropriate only where there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind. 2005); Ind. Trial Rule 56(C). An appellate court applies the same standard as the trial court when reviewing a motion for summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008). We view the designated evidence in the light most favorable to the nonmoving party. Id. at 608. Nevertheless, the party who lost a motion for summary judgment has the burden of persuading the appellate court that the trial court‘s decision was erroneous. Ind. Republican State Comm. v. Slaymaker, 614 N.E.2d 981, 983 (Ind.Ct.App.1993).
II. Mootness
As an initial matter, Gaither notes that his term of parole expired in July 2011 and seems to only challenge the remaining probation condition restricting his residency. Indeed, the parole condition limiting Gaither‘s residency no longer applies to him and is therefore moot.
Generally, an issue is moot and this Court lacks jurisdiction when no effective relief can be granted to the parties. Irwin R. Evens & Son, Inc. v. Bd. of Indianapolis Airport Authority et al., 584 N.E.2d 576, 581 (Ind. Ct.App.1992). “However, even when the requested relief is
In this case, whether a residency restriction can be a condition of a convicted child molester‘s parole, when the statute authorizing the imposition of that condition was not in effect at the time he committed the offense is a question of great public importance. Furthermore, it is an issue that is capable of repetition but likely to evade review as defendants complete their parole before their cases ever reach the appellate court. See Horseman v. Keller, 841 N.E.2d 164, 170 (Ind.2006) (reaching the merits of a moot elections issue because it was “capable of repetition, yet evading review“). Moreover, because parole and probation conditions are viewed similarly by the courts, judicial efficiency suggests that they be addressed together.
III. Residency Restriction as a Condition of Probation and Parole
Gaither argues that a trial court may not impose a punitive condition of probation that is inconsistent with the ex post facto prohibition contained in the Indiana Constitution. Gaither maintains that the condition of his probation prohibiting him from living within 1,000 feet of a school, which prevents him from residing in the home he has owned for twenty-four years, violates this prohibition.
The Indiana Constitution provides that “[n]o ex post facto law ... shall ever be passed.”
As stated above, Gaither challenges a condition of his probation and parole. Probation is a criminal sanction where the convicted offender agrees to accept conditions upon his behavior in lieu of incarceration. Carswell v. State, 721 N.E.2d 1255, 1258 (Ind.Ct.App.1999). A trial court has broad discretion to impose conditions of probation, with the only limitation being that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. Id. The reviewing court is limited to considering whether the conditions imposed by the court on the accused aid in the furtherance of the goal of “assuring that the probation serves as a period of genuine rehabilitation and that the community is not harmed by a probationer being at large.” Fitzgerald v. State, 805 N.E.2d 857, 864 (Ind.Ct.App.2004). We will not set aside terms of probation unless the trial court abused its discretion. Collins v. State, 911 N.E.2d 700, 707 (Ind.Ct.App.2009).
Parole and probation conditions may be viewed together because “a person on probation occupies a status similar to that of a person on parole.” Carswell, 721 N.E.2d at 1262. The Indiana Parole Board is given authority to impose conditions beyond the standard conditions for a person on parole if the conditions are reasonably related to the parolee‘s successful reintegration into the community and do not unduly restrict a fundamental right. Weiss v. Ind. Parole Bd., 838 N.E.2d 1048, 1051 (Ind.Ct.App.2005). “[T]he only practical difference between the two is that ‘probation’ relates to judicial action taken before the prison door is closed, whereas ‘parole’ relates to executive action taken after the door has closed on a convict.” Carswell, 721 N.E.2d at 1262.
Hevner also challenged the condition of his probation requiring that he not live within 1,000 feet of a school. Id. at 113. Our Supreme Court reached a different result on this issue, concluding that “having been convicted of ... a sex offense at the time Hevner committed his crime, he is subject to conditions of probation that ‘have a reasonable relationship to the treatment of the accused and protection of the public.‘” Id. (quoting Hale v. State, 888 N.E.2d 314, 319 (Ind.Ct.App.2008)):
Gaither attempts to distinguish Hevner on two grounds. The first one is somewhat convoluted; however, Gaither seems to argue that Carswell, a decision that the Hevner Court cited as support, was itself supported by a statute authorizing the probation rule. This statute was in effect when Hevner committed his offenses but not when Gaither committed his offenses. This argument is misplaced, inasmuch as the Hevner Court specifically held that because Hevner had been convicted of a sex offense, he was subject to conditions of probation that were reasonably related to his treatment and protection of the public, which included being prohibited from residing within 1,000 feet of a school. Hevner, 919 N.E.2d at 113. Thus, this argument fails.
Gaither also attempts to distinguish Hevner by highlighting the fact that he owned his home before he committed his offenses. Accordingly, Gaither claims that his probation condition restricting his residency is unduly restrictive on his property interests in his home.
First, the Hevner Court made no distinction between ownership and mere residency, and the fact that an offender owns a home in which he is not allowed to reside during his term of probation or parole is immaterial in determining whether a condition of probation or parole is related to an offender‘s rehabilitation, while protecting the public.
Notwithstanding the above, when an offender claims that a probation condition is unduly intrusive on a constitutional right, the court must balance the following factors: (1) the purpose to be served by placing the offender on probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be afforded to those on probation; and (3) the legitimate needs of law enforcement. Fitzgerald, 805 N.E.2d at 865.
Carswell is instructive in balancing these factors in the instant case. Carswell argued that a condition of his probation forbidding him from living within two blocks of a school, playground, or any area where children congregate was an “exaggerated response” to the State‘s concerns. 721 N.E.2d at 1259. A panel of this Court disagreed, concluding that “[t]his type of condition is a protective measure for children who go to such places and it will assist Carswell in his rehabilitation.” Id. The panel reasoned that “[c]hild molesters molest children to whom they have access.... Conditions of probation that reduce the potential for access to children are reasonable.” Id.
Moreover, probation conditions may impinge upon a probationer‘s right to exercise an otherwise constitutionally protected right. Purdy v. State, 708 N.E.2d 20, 22 (Ind.Ct.App.1999)
Here, Gaither is a convicted child molester. Although limiting Gaither‘s residency will not limit his access to all children, it will certainly reduce such access. And home ownership does not determine whether a condition restricting residency is permissible. Rather, to be permissible, the condition restricting residency must be reasonably related to the offender‘s rehabilitation. And as discussed above, Indiana courts have held that prohibiting a sex offender from living within 1000 feet of a school as a condition of probation is reasonably related to the offender‘s rehabilitation and is permissible. Consequently, Gaither‘s argument fails, and we affirm the decision of the trial court.
The judgment of the trial court is affirmed.
KIRSCH, J., and BROWN, J., concur.
BAKER
JUDGE
Anthony W. BROWNING, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
No. 49A05-1110-CR-540.
Court of Appeals of Indiana.
July 17, 2012.
971 N.E.2d 696
Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
ROBB, Chief Judge.
Case Summary and Issue
After a jury trial, Anthony Browning was found guilty and convicted of five counts of child exploitation, all Class C felonies. Browning raises one issue for our review: whether sufficient evidence supports his convictions. Concluding the evidence is sufficient, we affirm.