Court of Appeals of Indiana | Memorandum Decision 71A03

- 1711

- CR

- 2739 | April 26, 2018 Page 1 of 5



### 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 Marielena Duerring South Bend, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Kody Russell Oliver , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. A pril 26, 2018 Court of Appeals Ca se No. 71A03

- 1711

- CR

- 2739 Appeal from the St. Joseph Superior Court The Honorable Elizabeth C. Hurley, Judge Trial Court Cause No. 71D08

- 1112

- FB

- 209

Bailey , Judge
.Court of Appeals of Indiana | Memorandum Decision 71A03

- 1711

- CR

- 2739 | April 26, 2018 Page 2 of 5 

# Case Summary

[1] Kody Russell Oliver (“Oliver”) challenges the revocation of his probation, arguing that the terms of his probation were unenforceable against him.

[2] We affirm. 

# Facts and Procedural History

[3] In August of 2012, Oliver pleaded guilty to Child Molesting, as a Class C felony . Thereafter, the trial court sentenced Oliver to six years of incarceration, with all six years suspended to probation. The court’s written sentencing order specifie d that Oliver was “ told that he must register as a sex offender and sign sex offender special conditions.” Appellant’ s App. Vol. II at 73. 1

[4] At some point, Oliver signed a document titled “Terms of Probation of the St. Joseph Circuit and Superior Courts.” Id. at 152. The document contains handwritten conditions , with lines that appear to state : “Obey Sex Off Spec Cond.” Id. Oliver also signed a document titled “Conditions of Probation for Adult Sex Offenders,” an d initialed conditions throughout the document. Id. at 153

- 156. One of the initialed conditions obligates Oliver to “attend, actively participate in and successfully complete a court

- ordered sex offender treatment

1 We have not received a transcript of the sentencing hearing.Court of Appeals of Indiana | Memorandum Decision 71A03

- 1711

- CR

- 2739 | April 26, 2018 Page 3 of 5

program as directed by the court.” Id. at 154. Another initialed condition provides that Oliver must “submit to random drug/alcohol testing.” Id. at 155.

[5] On September 1, 2016, the State filed a petition to revoke Oliver’s probation , which it later supplemented with an addendum

. The petition alleged, inter alia , that Oliver had failed to complete a sex offender treatment program and had failed to submit to a drug screen. After holding a hearing, the court determined that Oliver had violated the se two conditions of probation, and ordered Oliv er to serve two years of his sentence in the Indiana Department of Correction

.

[6] Oliver now appeals.



# Discussion and Decision

[7] The trial court “may revoke a person’s probation if

. . . the person has violated a condition of probation during the probationary p eriod.” Ind. Code § 35

- 38

- 2

- 3. The court’s “probation decision is subject to review for abuse of discretion,” which occurs when the decision is clearly against the logic and effect of the facts and circumstances. Smith v. State , 963 N.E.2d 1110, 1112 (I nd. 2012).

[8] Oliver does not dispute that he failed to complete sex offender treatment and failed to submit to a drug screen. He instead argues that these were not

en forceable conditio ns of his probation. 2 In so arguing, Oliver appears to

2 The State argues that Oliver has waived this argument; we elect to address the merits of Oliver’s appeal.Court of Appeals of Indiana | Memorandum Decision 71A03

- 1711

- CR

- 2739 | April 26, 2018 Page 4 of 5

chiefly rely on I ndiana Code Section 35

- 38

- 2

- 2.3 (b) , 3 which provides that “[w]hen a person is placed on probation, the person shall be given a written statement specifying

. . . the conditions of probation.” According to Oliver, the court failed to give a proper written s tatement at the time he was placed on probation. Oliver also asserts in a footnote that being told to sign conditions “is not the same as being advised” of the conditions. Appellant’s Br. at 7.

[9] However , even assuming arguendo that t he court failed to comply with the probation statute, any error “is harmless if there is otherwise substantial compliance with the intent of the statute.” Menifee v. State , 600 N.E.2d 967, 969 (Ind. Ct. App. 1992) , clar’d on denial of reh’g

. We have concluded that the inte nt behind the “ statutory requirement of a written statement

. . . is to ‘provide a defendant with prospective notice of the standard of conduct required of him or her while on probation and to prohibit the imposition of additional conditions after sentenci ng.’” Seals v. State , 700 N.E.2d 1189, 1191 (Ind. Ct. App. 1998) (quoting Kerrigan v. State , 540 N.E.2d 1251, 1252 (Ind. Ct. App. 1989)).

[10] Here , the written sentencing order indicates that Oliver was “told that he must register as a sex offender and sign s ex offender special conditions.” Appellant’s App. Vol. II at 73 . At some point thereafter, Oliver signed two documents

— one indicating that he was to obey sex offender special conditions, and another setting forth those conditions. Thus, the record befor e us indicates that Oliver

3 Oliver directs us to Indiana Code Section 35

- 38

- 2

- 2(b), which has been repealed.Court of Appeals of Indiana | Memorandum Decision 71A03

- 1711

- CR

- 2739 | April 26, 2018 Page 5 of 5

was adequately apprised of the conditions of his probation, and he has at most directed us to harmless error. See Ind. Trial Rule 61. We accordingly conclude that the trial court did not abuse its discretion in revoking Oliver’ s probation.

[11] Affirmed.

C rone, J., and Brown, J., concur

.