Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2238 | April 7, 2017 Page 1 of 4 

### 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 Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana A TTORNEYS FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
Michael Gene Worden Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Leroy Butler, A

ppellan t -Defendant,

v. 

### State of Indiana, A

ppelle e -Plaintiff April 7, 2017 Court of Appeals Case No. 73A01-1609-CR-2238 Appeal from the Shelby Superior Court The Honorable R. Kent Apsley, Judge Trial Court Cause No. 73D01-1508-F2-8

Vaidik, Chief Judge.Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2238 | April 7, 2017 Page 2 of 4 

# Case Summary

[1] After Leroy Butler was convicted of dealing in methamphetamine and maintaining a common nuisance, the tria l 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

[2] In August 2015, Butler was arrested and charged with three felonies: dealing in methamphetamine, possession of me thamphetamine, and maintaining a common nuisance. Following a jury trial, Butler was found gu ilty on all three charges. At the sentencing hearing, Butler stated that he had a substance-abuse problem, which began when he started drin king alcohol. The trial court merged the possession and dealing charges and se ntenced 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 consum e 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

[3] Butler argues that the probation condition regarding alcohol is unconstitutionally vague or overbroad. “Probation is a criminal sanction whereCourt of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2238 | April 7, 2017 Page 3 of 4 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), trans. denied . A trial court has broad discre tion to impose conditions of probation. Hevner v. State , 919 N.E.2d 109, 113 (I nd. 2010). The court’s discretion is limited by the principl e 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 condit ion, this Court evaluates that claim by balancing the following factors: “(1) th e purpose to be serv ed by probation, (2) the extent to which constitu tional 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

[4] In Collins v. State , the defendant argued that his probation condition that restricted his access to businesses th at 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

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 cr ime.” Sent. Tr. p. 26. He argues that it is unconstitutionally vague or overbroad, but he fails to ci te to any legal authority to support his argument. He also fails to provide an analysis under our law for de termining 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).Court of Appeals of Indiana | Memorandum Decision 73A01-1609-CR-2238 | April 7, 2017 Page 4 of 4 in its application. 911 N.E.2d 700, 714 (Ind. Ct. App. 2009), trans. denied

. Accordingly, we remanded for the tria l court to provide clarification.

[5] Butler’s challenged condition states, “Y ou will not consume alcohol. You will not visit a bar, tavern, any place where al coholic beverages are sold, bartered, or given away.” Sent. Tr. p. 27. Following the same logic as Collins , we conclude that this probation condition is overbroa d. While we agree with the trial court that prohibiting Butler from consuming alcohol is reasonab ly related to his rehabilitation, restrictin g 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 re vised to prevent Butler from entering establishments where alco hol is sold by the drin k for consumption on the premises or the business’ pr imary purpose is the sale of alcohol. This would permit Butler to enter grocery stores, dr ug stores, and conven ience stores while still meeting the goals of probation. See Waters v. State, 65 N.E.3d 613 (Ind. Ct. App. 2016) (holding that probation cond itions 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.

[6] Remanded with instructions.
Bailey, J., and Robb, J., concur.