Deondre D. Langston v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 11, 2020
• Docket: 19A-CR-1451
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 11 2020, 8:40 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Deondre D. Langston, February 11, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1451 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Barbara Crawford, Appellee-Plaintiff, Judge Trial Court Cause Nos. 49G01-1902-F5-5863 49G01-1807-F3-22213

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 1 of 9 Case Summary and Issue [1] Armed with a knife, Deondre Langston robbed a Family Dollar store in Marion

County during business hours and was charged with robbery, a Level 3 felony.

While incarcerated awaiting disposition of that charge, he was involved in an

incident that led to a charge of battery by bodily waste, a Level 5 felony. In a

single proceeding, Langston pleaded guilty to both offenses as charged, leaving

his sentences open to the trial court’s discretion. Langston was sentenced to

consecutive terms of ten years in the Indiana Department of Correction

(“DOC”) with three years suspended for the robbery conviction, and four years

in the DOC with one year to be served in community corrections and one year

suspended to probation for the battery conviction. He was also ordered to stay

away from all Family Dollar stores in Marion County. Langston now appeals

that condition of his probation, raising one issue for our review: whether the

trial court abused its discretion in imposing a condition of probation that he

claims is overly broad.1 Concluding the condition is not overly broad as it is

reasonably related to his rehabilitation and public safety, we affirm.

Facts and Procedural History

1 The robbery and battery cases were consolidated for appeal on Langston’s motion. Several documents had already been filed in the individual appellate cause numbers and so the consolidated cause number contains separate documents for each trial court cause number. Where appropriate, we have designated the record materials by the corresponding trial court cause number: “Cause 22213” for the robbery case; “Cause 5863” for the battery case.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 2 of 9 [2] Around noon on July 6, 2018, James Wheeler and two other people were

working at the Family Dollar store on German Church Road in Indianapolis.

Wheeler observed a man, later identified as Langston, walking through the

aisles of the store putting items in an open bag. Wheeler made an

announcement that customers found stealing would be arrested. Langston then

approached the front door to leave. Wheeler confronted Langston, asking to

check his bag. Langston refused and pulled out a knife. He told Wheeler not to

be a hero and said if employees called the police, he would come back and kill

them. Langston then went back into the store and retrieved a cart with a tote

full of laundry detergent from an aisle. As he wheeled the cart out of the store,

Langston again told Wheeler not to be a hero. Langston got into a waiting

vehicle being driven by a female. One of the store employees was able to get

the license plate number of the vehicle as it left the parking lot and reported the

robbery to the police. When police stopped the suspect vehicle a short time

later, they found a female driving, with Langston in the passenger seat and a

tote full of laundry detergent in the back seat. Langston told police, “No matter

how many times I get caught, I’m gonna go steal. That’s what I do. You can

give me 20 years in prison, I’m gonna go steal when I get out.” Appellant’s

Appendix [Cause 22213], Volume II at 20.

[3] The State charged Langston with robbery, a Level 3 felony. While incarcerated

awaiting disposition of that charge, he was involved in an altercation with

another inmate at the jail and ultimately bit a correctional officer who was

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 3 of 9 trying to stop the altercation. The State charged Langston with battery by

bodily waste, a Level 5 felony.2

[4] Langston entered an open plea agreement with the State, agreeing to plead

guilty in both cases as charged and leaving all terms of his sentence to the trial

court’s discretion. The trial court sentenced Langston to ten years in the DOC

with three years suspended for robbery; a consecutive term of four years at the

DOC with one year to be served in community corrections and one year

suspended to probation for battery; entered no contact orders for the three

Family Dollar employees present on the day of Langston’s offense “for the

length of the sentences[; and] then stay away from the Family Dollar as well.”

Transcript of Evidence, Volume II at 29. The written sentencing order stated

there was a “Stay Away Order” for “All Family Dollar Stores in Marion

County[.]” Appellant’s App. [Cause 5863], Volume II at 10.3 Langston now

appeals this condition of his sentence.

Discussion and Decision 4

2 The State alleged both that Langston knew the bodily fluid was infected with HIV, Ind. Code § 35-42-2- 1(h)(1), and that Langston committed the battery upon a public safety official, Ind. Code § 35-42-2-1(h)(2). Either of these conditions increase the offense to a Level 5 felony. Ind. Code § 35-42-2-1(h). 3 The trial court entered a written sentencing order in each case. The sentencing order in the robbery case states there is a “Stay Away Order . . . From Family Dollar.” Appellant’s App. [Cause 22213], Volume II at 14. 4 The State argues Langston has not preserved this issue by failing to make a record at the sentencing hearing. Whether or not a probation condition can generally be challenged for the first time on appeal, see Meunier- Short v. State, 52 N.E.3d 927, 936 (Ind. Ct. App. 2016) (noting an apparent split of authority on the issue),

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 4 of 9 [5] The fashioning of probation conditions, assigned in lieu of imprisonment, are a

matter entrusted to the discretion of the trial court. Bleeke v. Lemmon, 6 N.E.3d

907, 918 (Ind. 2014). Probation is “simply one point . . . on a continuum of

possible punishments,” meant to “assure that the probation serves as a period of

genuine rehabilitation and that the community is not harmed by the

probationer’s being at large” when the offender would otherwise be imprisoned

and away from the public. Id. (quoting Griffin v. Wisconsin, 483 U.S. 868, 874-

75 (1987)). We will not disturb a trial court’s probation order absent an abuse

of discretion, which occurs “when the probation conditions imposed are not

reasonably related to rehabilitating the defendant and protecting the public.”

Weida v. State, 94 N.E.3d 682, 687 (Ind. 2018). Accordingly, our review centers

around whether imposed probation conditions “reasonably relate[] to attaining

these goals.” Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans.

denied.

[6] At the sentencing hearing, the trial court acknowledged that Langston “has a

pretty significant history of mental health challenges.” Tr., Volume II at 26.

The pre-sentence investigation report indicated that Langston was diagnosed

with schizophrenia, bi-polar disorder, ADHD, and depression as a child. The

trial court also noted his ongoing and consistent criminal activity. “And my

the trial court in this case stated at the sentencing hearing that Langston was to stay away from “the” Family Dollar. Tr., Vol. II at 29. It was only when the trial court entered its written sentencing orders that the trial court’s intention for the stay away order to apply to all Family Dollar stores in Marion County became apparent. Thus, Langston did not have a fair opportunity to object to the actual probation condition during the sentencing hearing.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 5 of 9 concern is that that is not — that is not going to stop if — or be interrupted even

if we send you back into the community.” Id. at 27. Langston’s criminal

activity began as a juvenile, and he has eleven prior felony convictions and

several misdemeanor convictions, many for theft-related offenses. The trial

court found the aggravator of Langston’s criminal history outweighed the

mental health mitigator – although not “by a whole lot.” Id. at 27.

Accordingly, the trial court gave him a slightly aggravated sentence in each case

and ordered the sentences to be served consecutively but offered some leniency

at the end of his sentence in the form of community corrections and probation.

As for the conditions of his probation, the trial court ordered him to stay away

from the three Family Dollar employees on duty at the time of the robbery and

also to stay away from all Family Dollar stores in Marion County for the length

of his sentence.

[7] Langston concedes that a stay away order from the Family Dollar location he

robbed would be a reasonable probation condition, see Brief of Appellant at 11,

but argues that ordering him to stay away from all Family Dollar stores in

Marion County is an overly broad condition not reasonably related to his

rehabilitation and the protection of the public. In support of his argument,

Langston cites Hurd v. State, 9 N.E.3d 720 (Ind. Ct. App. 2014). In Hurd, the

defendant was convicted of battering a woman leaving a bus stop near her

home at 38th Street and College Avenue in Indianapolis. The thirty-five-year-

old defendant had been diagnosed with paranoid schizophrenia and lived with

his mother, who was also his guardian, on the east side of the city but often

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 6 of 9 took the bus to visit and stay with friends in the area of 38th and College. The

trial court gave him a suspended sentence of 178 days with non-reporting

probation, ordered him to comply with his mental health treatment plan, and

ordered him to stay away from the victim. The trial court also ordered him to

stay away from an area bordered by 28th Street to the south, 48th Street to the

north, Martin Luther King, Jr. Street to the west and Fall Creek Parkway to the

east. This was roughly a one-mile radius in all directions from 38th and College

in the heart of downtown Indianapolis. The defendant appealed this condition

of his probation, arguing it was not reasonably related to his rehabilitation and

public safety. We agreed, noting it was reasonable for the trial court to express

concern for the defendant’s mental health and therefore order him to comply

with his treatment. It was also reasonable for the trial court to express concern

for the victim of his crime and order the defendant to stay away from her.

“However, prohibiting [the defendant] from entering a significant area of the

central part of Indianapolis is not tailored to his rehabilitation or public safety.”

Id. at 726.5

[8] This case is distinguishable from Hurd. Whereas in Hurd, the defendant was

prevented by the stay away order from entering a large area of the city with

little to no showing of why that was necessary, here, Langston’s freedom of

movement is not inhibited, he is simply prohibited from entering individual

5 The trial court initially entered a stay away order for a five-block radius from 38th and College, but the victim’s boyfriend, who also happened to be a police officer, objected and requested the stay away order cover the larger area.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 7 of 9 locations of a store brand he not only robbed on this occasion, but that his

criminal history shows he has robbed before. In October 2004 and June 2018,

Langston was charged with theft and ultimately ordered to stay away from all

Family Dollar stores in Marion County as a condition of his probation in those

cases. See Appellant’s App. [Cause 22213], Vol. II at 91, 97. We note, as the

trial court did, that Langston suffers from a mental illness and that he either

does not understand or does not care about the wrongfulness of his conduct.

Langston stated at the time of his arrest that stealing is what he does, indicating

he has no intention of stopping. And his criminal history bears this out.

Family Dollar is not the only retail establishment Langston has been ordered to

stay away from. In 2010, as part of a sentence for criminal trespass, Langston

was ordered to stay away from Castleton Square Mall. Also in 2010, as part of

a sentence for battery and battery resulting in bodily injury, Langston was

ordered to stay away from all Safeway Stores in Marion County. And in 2013,

as part of a community corrections sentence for theft, Langston was ordered to

stay away from IU Health/Methodist Hospital, Carson Pirie Scott, and all

Dollar General stores in Marion County. Thus, although the probation

condition in this case is broad and unlikely to be effective in stemming

Langston’s tendency to steal, it is not overly broad, as it is reasonably related to

rehabilitating this particular defendant and protecting the public that works and

shops in Indianapolis-area Family Dollar stores.

Conclusion

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 8 of 9 [9] The condition of Langston’s probation requiring that he stay away from all

Family Dollar locations in Marion County is not overly broad and the trial

court therefore did not abuse its discretion in imposing this condition. The

judgment of the trial court is affirmed.

[10] Affirmed.

Bradford, C.J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1451 | February 11, 2020 Page 9 of 9