Carswell v. State

• Decision Date: 27 December 1999
• Docket Number: No. 52A02-9901-CR-69.,52A02-9901-CR-69.
• Citation: 721 N.E.2d 1255
• Parties: Donald G. CARSWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

721 N.E.2d 1255

Donald G. CARSWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 52A02-9901-CR-69.

Court of Appeals of Indiana.

December 27, 1999.

Susan K. Carpenter, Public Defender of Indiana, Lorraine L. Rodts, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Michael R. McLaughlin, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

SHARPNACK, Chief Judge

Donald Carswell appeals his sentence for two counts of child molesting, class C felonies.¹ Carswell raises five issues, which we restate as:

1) whether the trial court erroneously required him to pay for any counseling expenses the victims may incur related to the molest as a condition of his probation;

2) whether the trial court erroneously forbade him from residing within two blocks of a school, playground or any area where children congregate as a condition of his probation;

3) whether the trial court erroneously required him to submit to warrantless searches of his person and property by his probation officer as a condition of his probation;

4) whether the trial court erroneously required him to submit to alcohol/drug detection tests as a condition of his probation; and

5) whether the trial court erroneously imposed upon him two different polygraph provisions.

We affirm in part, reverse in part, and remand.

The facts most favorable to the judgment follow. On June 17, 1998, Carswell was charged with two counts of child molesting. Carswell pled guilty, pursuant to a plea agreement, on November 6, 1998. The trial court sentenced Carswell to four years in prison on both counts with said sentences to run concurrently. The trial court then suspended three years of the sentence and placed Carswell on probation for three years. Among other things, the trial court ordered Carswell, as conditions of his probation, to pay for any counseling expenses his victims may incur related to the molestation; not to reside within two blocks of a school, playground, or any area where children congregate; to undergo psychophysiological polygraph testing for treatment purposes; to submit to warrantless searches of his person and property by his probation officer as a condition of his probation; and to submit to lie detector tests and alcohol/drug detection tests.

Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment. Rivera v. State, 667 N.E.2d 764, 766 (Ind.Ct.App. 1996), trans. denied. Thus, probation is a conditional liberty dependent upon the observance of certain restrictions. Id. These restrictions are designed to ensure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by a probationer being at large. Id. When granting probation, the trial court is vested with broad discretion in establishing conditions. Gordy v. State, 674 N.E.2d 190, 191 (Ind.Ct.App.1996). The only limitation placed on this discretion is that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public. Id. at 191-192. Therefore, due to the broad discretion granted the trial court, our review is essentially limited to determining whether the conditions placed upon the defendant are reasonably related to attaining these goals. Id. at 192. However, where a defendant contends that a probation condition is unduly intrusive on a constitutional right, the following three factors must be balanced: (1) the purpose sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law abiding citizens should be afforded to probationers; and (3) the legitimate needs of law enforcement. Id. at n. 3; Johnson v. State, 659 N.E.2d 194, 199 (Ind.Ct.App.1995), reh'g denied.

I.

Carswell first contends that the condition of probation requiring him to "[p]ay for any counseling expenses his victims may incur related to the molestation" is erroneous because it is not limited to the actual loss incurred by the victims and therefore exceeds statutory authority. Record, p. 156. Under Indiana law, a trial court has the authority to order a defendant convicted of a crime to make restitution to the victims. See Ind.Code §§ 35-38-2-2.3; XX-XX-X-X. The purpose behind an order of restitution is to impress upon the criminal defendant the magnitude of the loss he has caused and to defray costs to the victim caused by the offense. Wilson v. State, 688 N.E.2d 1293, 1295-1296 (Ind.Ct.App.1997). However, the trial court may consider only those expenses incurred by the victim prior to the date of sentencing in formulating its restitution order. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind.Ct.App.1995), reh'g denied, trans. denied.

Here, the victims were not in counseling at the date of the sentencing, nor had they ever been. Therefore, the victims had incurred no expenses in relation to the molest at the date of Carswell's sentencing. Thus, the trial court's order requiring Carswell to "[p]ay for any counseling expenses his victims may incur related to the molestation" is based upon a future expense that may or may not actually be incurred. Record, p. 156 (emphasis added). Therefore, it was erroneous. See Kotsopoulos, 654 N.E.2d at 44

; cf. Roach v. State, 695 N.E.2d 934, 943-944 (Ind. 1998),

rev'd on other grounds,

711 N.E.2d 1237 (restitution order requiring defendant convicted of murder to pay for the victim's burial monument, which had not yet been purchased, was properly part of the funeral and burial expenses authorized by the restitution statute because the monument was not some nebulous future expense that might not actually be incurred). Accordingly, the portion of Carswell's probation requiring him to pay for any counseling expenses his victims may incur is reversed. See id.

II.

Carswell next contends that the trial court erroneously forbade him from residing within two blocks of a school, playground or any area where children congregate as a condition of his probation. Carswell argues that this restriction is "neither minimally necessary nor reasonably related to the State's interests in rehabilitation and public safety." Appellant's Brief, pp. 25-26. According to Carswell, other safety restrictions in place, such as that he not have contact with a child under the age of eighteen unless a parent is present and that he not commit another criminal offense, adequately protect the public, and therefore, the residency requirement is an "exaggerated response" to the State's concerns. Appellant's Brief, p. 22.

Child molesters molest children to whom they have access. Carswell, so far as the record shows, used his relationship to the victims as a way to gain access to them. Conditions of probation that reduce the potential for access to children are reasonable. See, e.g., Gordy v. State, 674 N.E.2d 190, 191 (Ind.Ct.App.1996)

. Preventing Carswell from residing within two blocks of places were children are known to congregate, such as schools, playgrounds, and the YMCA near his former residence, will not eliminate Carswell's potential access to children, but will certainly reduce such access. This type of condition is a protective measure for children who go to such places and it will assist Carswell in his rehabilitation.

Our conclusion that the restriction is reasonable is supported, as a matter of policy, by the amendment to Ind.Code § 35-38-2-2.3 which became effective July 1, 1999. That amendment makes mandatory, as a condition of probation for a sex offender, that the court "prohibit the offender from residing within one thousand (1,000) feet of school property ... for the period of probation." I.C. § 35-38-2-2.3. Clearly, by enacting this statute, the legislature has recognized the value of restricting child molester's access to children, thereby reducing the opportunity for convicted molesters to continue offending.

Carswell further argues that the condition as written is void for vagueness because it fails to provide any ascertainable standard of guilt. Specifically, Carswell contends that the phrase "area where children congregate" results in a "total absence of any predictable standard for identifying in advance the places near which [he] is forbidden to locate."² Appellant's Brief, p. 14. We agree that this portion of the condition is too vague. See, e.g., Dulin v. State, 169 Ind.App. 211, 223, 346 N.E.2d 746, 753 (Ind.Ct.App.1976)

(holding that condition of probation that required the defendant, in essence, to maintain good behavior was unreasonably vague). Children congregate where they want to, in many cases. Carswell's place of residence should not be subject to the whim of where local children might choose to gather. The condition should be more precise and cover specific places such as schoolyards, playgrounds and the like where children can be expected to congregate as a usual thing. Therefore, we remand to the trial court for reconsideration of this condition in the light of our discussion.

III.

Carswell next argues that the imposition of a requirement that he submit to warrantless searches of his person and his property as a condition of his probation constitutes an unreasonable invasion of his Fourth Amendment Rights.³ The challenged provision is as follows: "You will permit the probation officer, in conjunction with other law officers, to enter your residence and make reasonable inquiry into your activities and you will submit to a search of your person and/or property by such officers, without a warrant." Record, p. 158.

The State's operation of the probation system presents a special situation beyond the normal need for law enforcement that justifies a departure from the usual warrant and probable cause requirements imposed by the Fourth Amendment. Rivera v. State, 667 N.E.2d 764, 766 (Ind.Ct.App.1996), trans. denied. Because conditions of probation...