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Waters v. State

Court of Appeals of Indiana

December 12, 2016

Antonio Waters, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Boone Circuit Court The Honorable J. Jeffrey Edens, Judge. Trial Court Cause No. 06C01-0809-FA-244

          Attorney for Appellant Deborah K. Smith Sugar Creek Law Thorntown, Indiana

          Attorneys for Appellee Gregory K. Zoeller Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] Antonio Waters pled guilty to criminal deviate conduct, battery resulting in bodily injury, and strangulation after assaulting a woman in 2008. The trial court entered a sentence of imprisonment to be followed by probation. The court imposed the standard probation conditions but said that it would consider sex-offender conditions at a date closer to Waters' release from prison. Waters did not object to this procedure. The day before Waters was released from prison in 2016, the court held a hearing and imposed twenty-six sex-offender conditions. Waters appeals the imposition of those conditions, arguing that holding the delayed second hearing violated Indiana law and that, in the alternative, seventeen of the twenty-six conditions are unnecessary and inappropriate.

         [¶2] We agree with the State that Waters waived any objection to the bifurcation of the sentencing hearing. However, probation conditions must be reasonably related to the defendant's treatment and the protection of public safety. Several of Waters' conditions fall short of this standard. Applying our Supreme Court's holding in Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014), we conclude that the trial court erred when it imposed four conditions that restrict Waters' contact with minors even though his offenses did not involve minors. Furthermore, condition 26, which restricts Waters' access to the internet, is overly broad in its application. Waters' internet restriction should be limited to websites that are related to his offenses-such as dating websites and websites with sexually explicit material-because the internet has become increasingly pervasive in our daily lives, and Waters did not use the internet to commit his crimes. We affirm in part, reverse in part, and remand with instructions.

         Facts and Procedural History

         [¶3] In September 2008, Waters went with S.C. to a bar, where they both consumed several alcoholic drinks. They left the bar and went back to S.C.'s house. Upon entering her home, Waters punched S.C. in the face, knocking her to the ground. Waters locked the front door, straddled S.C. on the ground, and continued punching her in the face and abdomen. S.C. fought to get Waters off of her and repeatedly told him to stop. Waters removed S.C.'s pants and underwear and attempted to penetrate S.C. but failed. Instead, he forced his penis into her mouth. Waters also placed his hands around S.C.'s neck and squeezed so hard that he left marks. S.C. was eventually able to break free and run to a neighbor's house, where she called police. S.C. told police she thought Waters was going to kill her by strangulation. Waters was charged with attempted rape, criminal deviate conduct, criminal confinement, battery resulting in bodily injury, and strangulation.

         [¶4] In October 2009, Waters reached a plea agreement with the State and pled guilty to criminal deviate conduct, battery resulting in bodily injury, and strangulation. As a condition of the plea agreement, the State dismissed the charges for attempted rape and criminal confinement, and the parties agreed that sentencing would be at the trial court's discretion. In sentencing Waters, the court found several aggravating factors: Waters was discharged from the military for "alcohol rehab failure, " Waters was convicted of assaulting another female one month before attacking S.C., and Waters' crimes against S.C. occurred while he was on probation. Tr. p. 32. The court sentenced Waters to twenty-one-and-a-half years with sixteen years to be served at the Indiana Department of Correction ("DOC") and five-and-a-half years to be suspended to probation. The trial court prepared an Order of Probation, instructed Waters to review it with his attorney, and informed Waters that he would "be on probation while [he was] at the Department of Correction." Id. at 37. The court also told Waters it was imposing the standard conditions of probation but delaying the imposition of sex-offender conditions, which would be "addressed at a hearing to be held within thirty days of release." Id. Waters did not object to the trial court revisiting the issue of sex-offender conditions at a date closer to his release from prison.

         [¶5] On March 22, 2016, the day before Waters was released, the court held a hearing to address his sex-offender conditions. Waters objected for the first time to the bifurcation of his sentencing, which he said violated Indiana law. The State noted that Waters waived this argument by failing to object when the court explained this procedure in 2009. The State further argued that the court properly bifurcated the sentencing hearing because it "wanted to see [Waters'] prison progress report to see what he had done at the DOC before specifying the terms of his probation" and that this delay was to Waters' benefit. Appellant's App. p. 49. The court acknowledged that Waters waived any objection to bifurcation and ruled that, in any event, the bifurcation was permissible. The court imposed eight mandatory conditions (conditions 1 and 3-9) and eighteen discretionary conditions (conditions 10-27).

         [¶6] Waters now appeals.

         Discussion and Decision

         [¶7] Waters raises three issues on appeal. He makes two arguments as for why the 2016 hearing should not have been held. First, he notes that the trial court said at the 2009 hearing that he would be "on probation" while incarcerated and that the imposition of sex-offender conditions in 2016 therefore violated Indiana Code section 35-38-2-2.3(b), which requires that the conditions of probation be provided when a defendant is "placed on probation[.]" In the alternative, Waters asserts that the six-and-a-half-year delay in sentencing violated Indiana Criminal Procedure Rule 11, which provides that a defendant shall be sentenced within thirty days of conviction. In his third ...


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