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Weida v. State

Supreme Court of Indiana

April 12, 2018

Kristopher L. Weida Appellant (Defendant below)
State of Indiana Appellee (Plaintiff below)

          Argued: December 7, 2017

          Appeal from the Tippecanoe Superior Court, No. 79D01-1602-F5-13 The Honorable Randy J. Williams, Judge

          On Petition to Transfer from the Indiana Court of Appeals, No. 79A02-1608-CR-01760

          ATTORNEY FOR APPELLANT Brian A. Karle Ball Eggleston, PC Lafayette, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana


          GOFF, JUSTICE.

         Indiana's Special Probation Conditions for Adult Sex Offenders impose significant restrictions on probationers' conduct, including their internet access and use.[1] 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.

         Factual and Procedural History

         On 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.[2] 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.

         Following 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.

         Specifically, 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 35-38-2-2.2(4).

         Appellant's 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 children. Id.

         Condition 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 program.

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.

         Weida 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).

         Weida petitioned for transfer, which we granted, thereby vacating the Court of Appeals opinion.[3] See Ind. Appellate Rule 58(A).

         Standard of Review

         Trial 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).

         A court 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).

         However, 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).

         Discussion and Decision

         We live 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.

         When 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 ...

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