Kristopher L. Weida Appellant (Defendant below)
State of Indiana Appellee (Plaintiff below)
Argued: December 7, 2017
from the Tippecanoe Superior Court, No. 79D01-1602-F5-13 The
Honorable Randy J. Williams, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Monika Prekopa Talbot Deputy Attorney General
Special Probation Conditions for Adult Sex Offenders impose
significant restrictions on probationers' conduct,
including their internet access and use. As we
increasingly live our lives in cyberspace, probation
conditions limiting internet use must meet the same criteria
as conditions that restrict other conduct. First, they must
adequately inform probationers of what conduct will return
them to jail; second, they must reasonably relate to the
purposes of probation-rehabilitating the probationer and
protecting the public. Here, Kristopher Weida challenges the
propriety of two special sex offender probation conditions,
arguing that they are both unreasonable and unconstitutional.
Because we agree that one probation condition proves
unreasonable as applied to Weida, we affirm in part, reverse
in part, and remand to the trial court.
and Procedural History
March 28, 2015, thirty-four-year-old Kristopher Weida had
sexual intercourse with his sixteen-year-old niece, K.M.
Although Weida and K.M. offered police differing versions of
the encounter, they agreed on some details. Both told police
that before having sex they looked at pictures of K.M. on her
cell phone, they viewed other explicit photos on Weida's
phone, and K.M. showed Weida a website she found about
incest. Weida also admitted using his phone to google
explicit pictures and showing them to K.M. The State
accordingly charged Weida with Level 5 felony incest (Ind.
Code § 35-46-1-3) and he pleaded guilty without an
agreement on sentencing terms.
a sentencing hearing in which Weida and the State each
presented evidence and argument, the trial court sentenced
Weida to three years-one year executed in the Department of
Correction and two years suspended to probation. The court
imposed probation conditions, including Indiana's Special
Probation Conditions for Adult Sex Offenders. Some conditions
limited Weida's internet use.
Condition 8 provided:
You are prohibited from accessing or using certain web sites,
chat rooms, or instant messaging programs frequented by
children. You are prohibited from deleting, erasing, or
tampering with information on your personal computer with
intent to conceal an activity prohibited by this condition.
*Required as a condition of probation by IC
App. Vol. II, p. 48 (emphasis in original). Condition 9
elaborated upon Condition 8, instructing Weida that he
could not use a social networking website, instant
messaging program, or chat room to communicate with
26 imposed a broader internet prohibition. It read:
You shall not access the Internet or any other on-line
service through use of a computer, cell phone, iPod, Xbox,
Blackberry, personal digital assistant (PDA), pagers, Palm
Pilots, televisions, or any other electronic device at any
location (including your place of employment) without 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. You
shall not possess or use any data encryption technique or
Id. at 50. The court discussed these provisions
during sentencing. Referencing Conditions 8 and 9, the court
said, "[T]o the extent that you need to speak with, or
contact your own children, you are able to use a networking
site or the instant messaging for your children. I'm not
going to take that away from you." Tr. at 51,
¶¶ 8-12. Regarding Condition 26's internet
access ban, the court reiterated, "[A]gain, you can have
access for the purpose of contact with your children at any
time." Id. at ¶¶ 16-17.
appealed, raising three arguments. He first argued his
three-year sentence proved inappropriate considering his
character and the nature of the offense. He then challenged
Conditions 8 and 26 as unreasonable and unconstitutional as
applied to him because they created sweeping prohibitions on
internet usage. Finally, Weida challenged Condition 8's
prohibition on "certain web sites . . . frequented by
children" as unconstitutionally vague. A divided Court
of Appeals affirmed, rejecting all three arguments. Weida
v. State, 83 N.E.3d 704 (Ind.Ct.App. 2017).
petitioned for transfer, which we granted, thereby vacating
the Court of Appeals opinion. See Ind. Appellate Rule
courts enjoy broad discretion in fashioning defendants'
probation conditions. Hevner v. State, 919 N.E.2d
109, 113 (Ind. 2010). We will not disturb a court's
probation order absent an abuse of that discretion.
Bailey v. State, 717 N.E.2d 1, 4 (Ind. 1999).
abuses its discretion when the probation conditions imposed
are not reasonably related to rehabilitating the defendant
and protecting the public. Bratcher v. State, 999
N.E.2d 864, 873 (Ind.Ct.App. 2013) (citation omitted). Our
review, therefore, centers around whether imposed probation
conditions "reasonably relate to attaining these
goals." Id. (citation omitted).
to the extent a defendant challenges a probation condition on
constitutional grounds (either a vagueness or as-applied
challenge), our review is de novo. Cf. Smith v.
State, 8 N.E.3d 668, 676 (Ind. 2014).
in the internet age. The internet, cyberspace, the World Wide
Web, whatever moniker you choose, pervades our daily lives.
For many, we even carry the internet around in our pockets or
purses. Our cell phones provide the gateway into
cyberspace's vast domains. Hoosiers accomplish life's
most meaningful and mundane everyday tasks with cyberspace at
our fingertips. We apply for jobs, we file tax returns, we
pay bills, we attend college, we read the news, we navigate,
we communicate, we shop-all online. To be sure, most Hoosiers
don't think twice about googling the answer to a vexing
question, or checking the weather online, or updating their
status on social media. And that's all right-for most
Hoosiers. But probationers are not most Hoosiers.
criminal defendants receive probation, they "agree to
accept conditions upon [their] behavior in lieu of
imprisonment." Bratcher, 999 N.E.2d at 873
(citation omitted). When defendants are sex offenders, those
probation conditions often include internet restrictions like
those imposed here. Although probationers "do not enjoy
the same constitutional protections as law-abiding citizens,
" they may not be subjected to vague probation terms
that require them to acquiesce to unduly intrusive
constitutional violations. Id. Weida calls on us to
decide when ...