Adam Anthony Howe v. State of Indiana

25 N.E.3d 210, 2015 Ind. App. LEXIS 44, 2015 WL 402780
CourtIndiana Court of Appeals
DecidedJanuary 30, 2015
Docket12A02-1405-CR-320
StatusPublished
Cited by6 cases

This text of 25 N.E.3d 210 (Adam Anthony Howe v. State of Indiana) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adam Anthony Howe v. State of Indiana, 25 N.E.3d 210, 2015 Ind. App. LEXIS 44, 2015 WL 402780 (Ind. Ct. App. 2015).

Opinions

BROWN, Judge.

[1] Adam Anthony Howe appeals the trial court’s order denying his petition to modify a condition of his probation. Howe raises two issues which we revise and restate as whether the court abused its discretion in denying his petition. We affirm.

Facts and Procedural History

[2] In January 2005, Howe entered the home of his former wife and M., their [212]*212three-year-old daughter where M.’s grandmother was also present. Howe had a physical altercation with M.’s mother, they struggled over Howe’s gun, and at some point M.’s grandmother was struck by a bullet. M. observed the altercation. In June 2006, Howe pled guilty to the offenses of battery by means of a deadly weapon as a class C felony, unlawful possession of a firearm by a serious violent felon as a class B felony, invasion of privacy as a class A misdemeanor, aggravated battery as a class B felony, and residential entry as a class D felony. In July 2006, the court sentenced Howe to eight years for battery by means of a deadly weapon, twenty years with ten years suspended for unlawful possession of a firearm, stating “and the defendant is placed on probation for a period of ten (10) years,” one year for invasion of privacy, twenty years for aggravated battery, and three years for residential entry. Appellant’s Appendix at 8. The chronological case summary entry setting forth Howe’s sentence also provides: “As a special condition of probation, the defendant shall not have any contact, direct or indirect, with the victims.” Id.

[3]On October 8, 2013, Howe filed a Petition for Modification of an Order of Protection. In the petition, he indicated that he had sent a birthday card to M., that in response he received a letter dated January 8, 2008, from the Clinton Circuit Court Probation Department, and that he received an additional letter dated February 22, 2013, from the Probation Department, and he attached the letters to his Petition. The January 8, 2008 letter stated that, “[p]er court order, you are not allowed any direct or indirect contact with the victims in this case,” and the February 22, 2013 letter reiterated that Howe was prohibited from having any contact with the victims and stated that “it was the Court’s opinion that any children would be included in the no contact order. This stipulation will remain in effect until probation ends. You may request a modification to the terms; however; the Court may or may not grant it.” Id. at 23, 25. In his petition, Howe argued in part that the crime was not against M., that she was not a victim, and that he believes he has a right to care for his minor child while he is in prison and “is taking the necessary steps to protect his parental rights, as a father, wanting to establish a relationship with his 12-year old daughter.” Id. at 15. Howe requested that the court hold a hearing on his petition and “modify an order for protection to specify arrangement for Parenting time of a minor child.” Id. at 16.

[4] On March 17, 2014, the court held a hearing on Howe’s petition at which he appeared by telephone. The court elicited testimony from Howe that his earliest possible release date was 2023, that he wanted to be able to correspond with M. and have her visit him, and that M. was twelve years old. When asked by the prosecutor how he knew M. wanted to see him, Howe stated “through her brother ..., my son” and that his son' told him that M. had “been crying and wanting to see” him and that “there’s been a conflict between her and her mother because she’s wanting to ... have contact with me.” Transcript at 5. Howe was informed that the court could not order visitation, that “all that the judge through the criminal case can do is indicate whether or not there’s a No Contact,” and that “[wjhether or not the mother would choose ... to authorize visits or facilitate in those, that’s really a matter through the divorce court that as judge in this case ... [the court does not] have the authority to order.” Id. at 9. Howe stated that he understood and the court took the matter under advisement.

[5] On March 26, 2014, the State filed a response to Howe’s petition stating that it [213]*213had consulted with M.’s mother regarding Howe’s request, that “[s]he is adamantly opposed [to] the request,” that “[t]he child was a witness to the defendant’s shooting spree,” that M. “is a minor in the sole custody” of M.’s mother, and that Howe “has no business having contact with the child.” Appellant’s Appendix at 28. On April 4, 2014, the State filed a second response attaching a statement by M.’s mother, which described the events in January of 2005 leading to Howe’s incarceration, including that she was in the bathroom and had the door closed, Howe forced the bathroom door open, she immediately grabbed the gun to point it down, they ended up on the floor, Howe hit her with the gun “upside the head,” Howe heard sirens and started to go down the stairs and “was releasing bullets on my stairway,” and that M. “watched her grandmother get shot in the face.” Id. at 32-33. M.’s mother further stated that M. “struggles being afraid of going anywhere in the dark by herself and also struggles in school” and that M.’s mother “and the school deal with [M.’s] behaviors every day and alot of it is from her past.” Id. at 33-34. She also stated that Howe “has been in and out of prison all his life and is a very dangerous man,” that she definitely did not want her daughter to go to a prison to see him, that there is a no contact order after he is released in 2023 for ten years, and that M. “is only 12 yrs old and does not need to be anywhere near a prison.” Id. at 34. On April 7, 2014, the court issued an order denying Howe’s petition.

Discussion

[6] The issue is whether the trial court abused its discretion in denying Howe’s petition. Howe, pro se, asserts that, “[i]n the case at hand, [M.] was not a victim, Howe did not attempt whatsoever to find any of the children, he was focused on just the adults” and that, “[u]nfortunately, [M.] was in the room with her Grandmother when Howe attacked and shot [M.’s grandmother].” Appellant’s Brief at 9. He also asserts that the court abused its discretion in failing to properly consider the best interest of M. and failing to question M. to determine her desires.

[7] The State .maintains that the court did not abuse its discretion in denying Howe’s request to modify the conditions of his probation to allow contact with M, that Howe admits that his daughter saw the acts of violence that led to the charges in this case and that the court was presented with a recommendation from M.’s mother which stated that the experience caused M. continuing stress, fear of the dark, and behavior problems at school. The State also observes that Ind.Code § 35-38-2-2.3 provides authority for criminal courts to protect victims of crimes by ordering as a condition of probation that the person refrain from any direct or indirect contact with an individual, that any issue regarding a civil protection order or parenting time rights are outside the scope of this case, and that Howe has not shown that the court abused its discretion in . denying his petition.

[8] Trial courts have broad discretion in determining the appropriate conditions of a defendant’s probation. Bratcher v. State, 999 N.E.2d 864, 873 (Ind.Ct.App.2013) (citation omitted),

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Cite This Page — Counsel Stack

Bluebook (online)
25 N.E.3d 210, 2015 Ind. App. LEXIS 44, 2015 WL 402780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adam-anthony-howe-v-state-of-indiana-indctapp-2015.