Collins v. State

• Decision Date: 21 August 2009
• Docket Number: No. 35A02-0902-CR-162.,35A02-0902-CR-162.
• Citation: 911 N.E.2d 700
• Parties: Kenneth L. COLLINS, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.
• Court: Indiana Appellate Court

911 N.E.2d 700

Kenneth L. COLLINS, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.

No. 35A02-0902-CR-162.

Court of Appeals of Indiana.

August 21, 2009.

[911 N.E.2d 704]

Matthew G. Grantham, Bowers, Brewer, Garrett & Wiley, LLP, Huntington, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

Appellant/Defendant Kenneth Collins appeals from the trial court's alteration of the terms of his probation, which was originally imposed following his February of 2000 guilty plea to Class B felony Rape. We affirm in part and remand in part.

FACTS AND PROCEDURAL HISTORY

A panel of this Court set forth the underlying facts of Collins's conviction as follows:

The factual basis for Collins' guilty plea reveals that on June 30, 1999, he went to the residence of seventeen-year-old C.G., his ex-girlfriend. Collins looked inside the house and saw C.G. asleep on a couch. He then entered the house without permission, took off C.G.'s clothes while she slept, and began having sexual intercourse with her. When C.G. woke up, she tried to get Collins off of her, but he refused. After the sexual act was complete, Collins picked up a knife he had carried into the house and threatened to kill C.G. if she pressed charges. At the time of this incident, a protective order was in effect against Collins to prohibit any contact with C.G. Collins was charged with rape, a Class A felony, invasion of privacy, a Class B misdemeanor, and burglary, a Class B felony. He agreed to plead guilty to rape, on the condition that it was reduced to a class B felony, and to burglary; the invasion of privacy charge was dismissed. Because the plea agreement did not address Collins' sentence, the trial court conducted a sentencing hearing after it accepted the plea. It sentenced Collins to eighteen-year terms of imprisonment for both the rape and burglary convictions, representing the presumptive ten-year term for a Class B felony plus eight years for aggravating circumstances. It ordered that those terms be served consecutively for a total executed sentence of thirty-six years, though it suspended ten years of that sentence.

Collins v. State, 740 N.E.2d 143, 145-46 (Ind.Ct.App.2000) (footnotes omitted). Collins's plea agreement with the State, as embodied in his "Motion to Enter a Plea of Guilty" and "Written Advisement and Waiver of Rights," explained that the maximum penalty for a Class B felony was a twenty-year sentence and that "[i]f the Court suspends any part of your sentence, you must be put on probation." Appellant's App. p. 80. On direct appeal, this Court affirmed his convictions but remanded for resentencing. Id. at 149. On January 22, 2001, the trial court again imposed a sentence of thirty-six years of incarceration with ten years suspended to probation.

In October of 2008, the State orally moved the trial court to hold a hearing regarding the terms of Collins's probation. On January 12, 2009, soon after Collins's release from prison, the trial court held a hearing regarding Collins's probation, and he appeared pro se. Collins objected to the State's proposed addition of special sex offender probation terms on the bases that his probation could not be altered without a violation of its original terms and that the trial court may not impose terms of probation that are not required by statute. At a second hearing on January 20, 2009, the trial court imposed new terms of probation, including standard terms and the special sex offender terms ("Special Stipulations") to which Collins objected.

The Special Stipulations imposed were as follows:

1. You shall attend and complete Sexual Perpetrator's Counseling with Ed Pereira of the Family Service Society, Inc. in Marion, Indiana, at your own expense. This also includes the payment of an annual maintenance polygraph test. You must maintain steady progress towards all treatment goals and may not change treatment providers without prior approval of your Probation Officer.

2. You shall have no contact (direct or indirect) with any child, including the victim(s) or any member of the victim(s) family. Nor shall you attempt to contact, except under circumstances approved in advance and in writing by your Probation Officer in consultation with your treatment provider. You must report any incidental contact with children to your Probation Officer within 24 hours of the contact.

3. You shall be required to inform all persons living at the same residence as you of current and previous sex related convictions prior to establishing residency, as verified by your Probation Officer. You shall notify your Probation Officer of any change in home situation or marital status within 24 hours. You shall have only one residence and mailing address at a time.

4. You shall not reside within one thousand (1,000) feet of school property in accordance with IC 35-38-2-2.2 and IC35-41-1-24.7.[sic] (Required as a condition of probation by statute).

5. You shall register at the Sheriff's Department in the county in which you reside and are employed in, as a Sex Offender within seven (7) days of being released from custody to probation supervision in accordance with IC 5-2-12-5. (Required as a condition of probation by statute). You shall be under intense supervision and report to your probation officer as directed.

6. You shall notify your probation officer of your establishment of a dating, intimate, and/or sexual relationship. You must report whether the person you are having a relationship with has children under the age of 18 years and whether the children reside in the person's home. You shall notify any person with whom you are engaged in a dating, intimate or sexual relationship of your sex-related conviction(s).

7. You shall refrain from "cruising" activity, frequenting areas where potential victims can be encountered.

8. You shall not hitchhike or pick-up hitchhikers. You shall not travel alone after 10 p.m. (including but not limited to: driving, walking, bicycling, etc.) unless given permission by your probation officer.

9. You shall not use your employment as a means to acquire new victims. Your Probation Officer may contact your employer at any time. You will not work in certain occupations that involve being in the private residences of others, such as, but not limited [to]: door-to-door sales, soliciting, or delivery. Your Probation Officer must first approve any employment that you do engage in.

10. You shall not possess any items on your person, in your vehicle, in your place of residence or as a part of your personal effects, that attract children or that may be used to coerce children to engage in inappropriate or illegal sexual activities. You will not engage in any activities that could be construed as enticing children.

11. You shall not possess any sexually arousing materials, to include, but not limited to: videos, magazines, books, internet web sites, games, sexual devices or aids, or any material which depicts partial or complete nudity or sexually explicit language or any other materials related to illegal or deviant interests or behaviors. You shall not visit strip clubs, adult bookstores, ordering of adult movies through cable TV pay-per-view network, peep shows, bars where topless or exotic dancers perform or businesses that sell sexual devices or aids. You shall not possess personal contact materials (i.e.: magazines or papers) that contain information about persons who desire to have personal relationships of any kind with others, nor will you place any ads that are sexual in content or respond by computer, telephone or Internet web sites, to any sexually solicitous ads.

12. You shall not use any computer with access to any "on-line computer service" at any location (including place of employment) without the prior approval of your Probation Officer. This includes any Internet Service Provider, Bulletin Board System, E-Mail System, or any other public or private computer network.

13. You shall allow your Probation Officer and/or computer service representative to conduct periodic, unannounced examination of your computer(s) equipment that may include retrieval and copying of all files from your computer(s) and any internal or external peripherals to ensure compliance with your stipulations. This may require removal of such equipment for the purpose of conducting a more thorough inspection. Your Probation Officer may have installed on your computer(s), at your own expense any hardware or software systems to monitor your computer usage.

14. You shall not reside within one (1) mile of the victim as a condition of probation or parole.

15. You must never be alone or have contact with any person under the age of 18. Any contact with a person under the age of 18 must be supervised by an adult or approved by the Court. You must report any incidental contact with persons under age 18 to your probation officer with[in] 24 hours of contact.

16. You shall not be present at parks, schools, playgrounds, day care centers, or other specific locations where children are known to congregate in your community.

17. You shall not participate in any activity which involves children under 18 years of age, such as, but not limited to, youth groups, Boy Scouts, Brownies, 4-H, YMCA, YWCA, or youth sports teams, unless given permission by the Court.

Appellant's App. p. 21.

DISCUSSION AND DECISION

On appeal, Collins challenges the Special Stipulations that were added to his probation. First, Collins contends that the trial court abused its discretion in imposing Special Stipulations without evidence of a probation violation. Second, Collins contends that the trial court abused its discretion in imposing the Special Stipulations when the plea agreement did not give the trial court that discretion. Third, Collins contends that the imposition of the...