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. 

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke 

Wieneke Law Office, LLC 

Brooklyn, Indiana 

ATTORNEYS FOR APPELLEE

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, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-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 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 

[2] 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 

[3] Butler argues that the probation condition regarding alcohol is 

unconstitutionally vague or overbroad. “Probation is a criminal sanction where 
Court 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 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

 

[4] 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 

 

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). 
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 trial court to provide clarification. 

[5] 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. 

[6] Remanded with instructions. 

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