Kody Russell Oliver v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 26, 2018
• Docket: 71A03-1711-CR-2739
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 26 2018, 9:13 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marielena Duerring Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kody Russell Oliver, April 26, 2018 Appellant-Defendant, Court of Appeals Case No. 71A03-1711-CR-2739 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1112-FB-209

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018 Page 1 of 5 Case Summary [1] Kody Russell Oliver (“Oliver”) challenges the revocation of his probation,

arguing that the terms of his probation were unenforceable against him.

[2] We affirm.

Facts and Procedural History [3] In August of 2012, Oliver pleaded guilty to Child Molesting, as a Class C

felony. Thereafter, the trial court sentenced Oliver to six years of incarceration,

with all six years suspended to probation. The court’s written sentencing order

specified that Oliver was “told that he must register as a sex offender and sign

sex offender special conditions.” Appellant’s App. Vol. II at 73.1

[4] At some point, Oliver signed a document titled “Terms of Probation of the St.

Joseph Circuit and Superior Courts.” Id. at 152. The document contains

handwritten conditions, with lines that appear to state: “Obey Sex Off Spec

Cond.” Id. Oliver also signed a document titled “Conditions of Probation for

Adult Sex Offenders,” and initialed conditions throughout the document. Id. at

153-156. One of the initialed conditions obligates Oliver to “attend, actively

participate in and successfully complete a court-ordered sex offender treatment

1 We have not received a transcript of the sentencing hearing.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018 Page 2 of 5 program as directed by the court.” Id. at 154. Another initialed condition

provides that Oliver must “submit to random drug/alcohol testing.” Id. at 155.

[5] On September 1, 2016, the State filed a petition to revoke Oliver’s probation,

which it later supplemented with an addendum. The petition alleged, inter alia,

that Oliver had failed to complete a sex offender treatment program and had

failed to submit to a drug screen. After holding a hearing, the court determined

that Oliver had violated these two conditions of probation, and ordered Oliver

to serve two years of his sentence in the Indiana Department of Correction.

[6] Oliver now appeals.

Discussion and Decision [7] The trial court “may revoke a person’s probation if . . . the person has violated a

condition of probation during the probationary period.” Ind. Code § 35-38-2-3.

The court’s “probation decision is subject to review for abuse of discretion,”

which occurs when the decision is clearly against the logic and effect of the facts

and circumstances. Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012).

[8] Oliver does not dispute that he failed to complete sex offender treatment and

failed to submit to a drug screen. He instead argues that these were not

enforceable conditions of his probation.2 In so arguing, Oliver appears to

2 The State argues that Oliver has waived this argument; we elect to address the merits of Oliver’s appeal.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018 Page 3 of 5 chiefly rely on Indiana Code Section 35-38-2-2.3(b),3 which provides that

“[w]hen a person is placed on probation, the person shall be given a written

statement specifying . . . the conditions of probation.” According to Oliver, the

court failed to give a proper written statement at the time he was placed on

probation. Oliver also asserts in a footnote that being told to sign conditions “is

not the same as being advised” of the conditions. Appellant’s Br. at 7.

[9] However, even assuming arguendo that the court failed to comply with the

probation statute, any error “is harmless if there is otherwise substantial

compliance with the intent of the statute.” Menifee v. State, 600 N.E.2d 967, 969

(Ind. Ct. App. 1992), clar’d on denial of reh’g. We have concluded that the intent

behind the “statutory requirement of a written statement . . . is to ‘provide a

defendant with prospective notice of the standard of conduct required of him or

her while on probation and to prohibit the imposition of additional conditions

after sentencing.’” Seals v. State, 700 N.E.2d 1189, 1191 (Ind. Ct. App. 1998)

(quoting Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind. Ct. App. 1989)).

[10] Here, the written sentencing order indicates that Oliver was “told that he must

register as a sex offender and sign sex offender special conditions.” Appellant’s

App. Vol. II at 73. At some point thereafter, Oliver signed two documents—

one indicating that he was to obey sex offender special conditions, and another

setting forth those conditions. Thus, the record before us indicates that Oliver

3 Oliver directs us to Indiana Code Section 35-38-2-2(b), which has been repealed.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018 Page 4 of 5 was adequately apprised of the conditions of his probation, and he has at most

directed us to harmless error. See Ind. Trial Rule 61. We accordingly conclude

that the trial court did not abuse its discretion in revoking Oliver’s probation.

[11] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2739 | April 26, 2018 Page 5 of 5