Campbell v. State
| Decision Date | 20 July 2015 |
| Docket Number | No. 73A01–1502–CR–46.,73A01–1502–CR–46. |
| Citation | 38 N.E.3d 226 (Table) |
| Parties | Paul Scott CAMPBELL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Cara Schaefer Wieneke, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
[1] Paul Campbell entered a plea of guilty to two counts of child molesting and was sentenced to sixteen years of imprisonment followed by eight years of probation, subject to the standard conditions of probation as well as terms of probation specific to sex offenders. In this belated appeal,1 Campbell contends the trial court erred in imposing certain sex offender conditions of probation. The State concedes, and we agree, that two of the challenged conditions of probation are impermissibly vague, and we remand to the trial court to clarify Campbell's sex offender conditions of probation.
[2] In August 2011, the State charged Campbell with one count of Class A felony child molesting and one count of Class C felony child molesting. In February 2012, the State and Campbell entered into a plea agreement pursuant to which Campbell entered a plea of guilty to Class B felony child molesting as a lesser included offense of the Class A felony charge and also entered a plea of guilty to Class C felony child molesting. The plea agreement provided that Campbell would be sentenced to sixteen years for the Class B felony, all executed, and eight years for the Class C felony, to be served consecutively to the Class B felony sentence but all suspended to probation. The plea agreement contained several specific conditions of probation, as well as the additional term that “sex offender terms of probation shall apply.” Appellant's Appendix at 27.
[3] In April 2012, Campbell was sentenced pursuant to the plea agreement to sixteen years executed and eight years suspended to probation. Campbell signed off on the standard and special conditions of probation and also on twenty-nine “recommended special probation conditions for adult sex offenders.” Id. at 35–38. Included among those special sex offender probation conditions were the following:
Id. at 35–37 (emphasis added). Campbell now appeals these three special sex offender conditions of probation, contending they are impermissibly vague or overbroad.
[4] “Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment.” Carswell v. State, 721 N.E.2d 1255, 1258 (Ind.Ct.App.1999). A trial court has broad discretion to determine appropriate conditions of a defendant's probation, although the conditions must be “reasonably related to the treatment of the defendant and the protection of public safety.” Bratcher v. State, 999 N.E.2d 864, 873 (Ind.Ct.App.2013) (quotation omitted), trans. denied. The conditions must also be sufficiently clear so that they “describe with clarity and particularity the misconduct that will result in penal consequences.” Id. at 874–75 (quotation omitted).
[5] Sex Offender Probation Condition 11 prohibits Campbell from, in part, visiting a business that sells sexual devices or aids. In Collins v. State, 911 N.E.2d 700 (Ind.Ct.App.2009), trans. denied, this court considered a challenge to a condition of probation that also included the prohibition against visiting “businesses that sell sexual devices or aids.” Id. at 714. Noting that as written, the term was vague and broad enough to extend to drug stores, we remanded for the trial court to clarify this condition of the defendant's probation. Id.; see also Bleeke v. State, 982 N.E.2d 1040, 1051–52 (Ind.Ct.App.2013), summarily aff'd on this ground, 6 N.E.3d 907 (Ind.2014). Likewise, Campbell notes that a “sexual aid” could include, for instance, a condom, which is sold in businesses such as drug stores, groceries, and convenience stores. The State concedes that precedent from this court holds that Condition 11 of Campbell's probation is impermissibly vague and should be remanded to the trial court for clarification. See Brief of Appellee at 3.
[6] Sex Offender Probation Condition 16 requires Campbell to notify his probation officer of any intimate or sexual relationship into which he enters. In Bleeke, the defendant challenged a condition of probation prohibiting him from establishing an intimate or sexual relationship with any adult without prior approval from his parole officer. 982 N.E.2d at 1052. Noting the definitions of “intimate” as “marked by close acquaintance, association, or familiarity,” or “a close friend or confidant,” we held that the term “intimate” was impermissibly vague because it did not indicate how such a relationship would be measured or when a casual relationship would cross into an intimate relationship. Id. The supreme court summarily affirmed this decision, noting the condition was impermissible “[w]ithout further clarification or specificity as to what conduct would result in [defendant's] return to prison for violating [the condition] in accordance with the Court of Appeals decision below....” 6 N.E.3d at 921–22. Again, the State concedes that precedent indicates Condition 16 is impermissibly vague and should be remanded to the trial court for clarification. See Brief of Appellee at 4.
[7] Finally, Sex Offender Probation Condition 19 prohibits Campbell from ever being alone with or having contact with any person under eighteen years old. Campbell contends this condition, too, is impermissibly vague and overbroad, citing Hunter v. State, 883 N.E.2d 1161 (Ind.2008), and McVey v. State, 863 N.E.2d 434 (Ind.Ct.App.2007), trans. denied. The State disagrees, citing Bratcher, 999 N.E.2d 864 ; Rexroat v. State, 966 N.E.2d 165 (Ind.Ct.App.2012), trans. denied; and Smith v. State, 727 N.E.2d 763 (Ind.Ct.App.2000), as authority for upholding this condition.
[8] In general, when this type of probation condition specifically includes “incidental contact,” it has been held to be overbroad. See McVey, 863 N.E.2d at 449 () (emphasis added); see also Hunter, 883 N.E.2d at 1164 ().
[9] On the other hand, when the condition does not explicitly include incidental contact, we have held that it...
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