Michael D. Greer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 1, 2020
• Docket: 18A-CR-3143
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 01 2020, 9:23 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

APPELLANT PRO SE ATTORNEYS FOR APPELLEE Michael D. Greer Curtis T. Hill, Jr. New Castle, Indiana Attorney General of Indiana

Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael D. Greer, May 1, 2020 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3143 v. Appeal from the Shelby Circuit Court State of Indiana, The Honorable Trent Meltzer, Appellee-Plaintiff. Judge Trial Court Cause No. 73C01-0908-FB-15

Sharpnack, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 1 of 10 Statement of the Case [1] Michael D. Greer appeals the trial court’s denial of his Motion to Remove

Probation Stipulation. We affirm.

Issue [2] Greer raises one issue, which we restate as: whether the trial court erred in

denying his motion.

Facts and Procedural History [3] In August 2009, the State charged Greer with numerous offenses, including

criminal deviate conduct, a Class B felony. The State also filed a repeat sexual

offender sentencing enhancement. On April 11, 2011, the parties filed with the

trial court a Joint Motion to Enter Plea of Guilty (Joint Motion). In the Joint

Motion, Greer agreed to plead guilty to criminal deviate conduct and to being a

repeat sexual offender. In exchange, the State agreed to dismiss the remaining

charges.

[4] The parties also agreed in the Joint Motion that, if the trial court accepted the

plea agreement, Greer would be sentenced to twenty years for criminal deviate

conduct, plus ten years for the repeat sexual offender sentencing enhancement,

for a total of thirty years, with five years suspended to probation. Among other

conditions of probation, Greer acknowledged that he would have to comply

with a sex offender management program and with sex offender registry

requirements.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 2 of 10 [5] Also on April 11, the trial court held a hearing, at which the parties presented 1 the Joint Motion. The trial court took Greer’s guilty plea under advisement.

[6] On May 17, 2011, the trial court held a sentencing hearing. The court accepted

the parties’ plea agreement and imposed the sentence set forth in the Joint

Motion. In a sentencing order dated May 20, 2011, the court identified the

conditions of Greer’s probation, including requirements that he “comply with

the sex offender management program as well as the special sex offender

conditions of probation.” Appellant’s App. Vol. 2, p. 27. The Court further

informed Greer that while he was on probation, he would have to “comply with

the sex offender registry requirements.” Id.

[7] During the May 17 hearing, Greer signed a document captioned “Standard

Conditions of Probation.” Id. at 28. In the document, Greer again

acknowledged he would have to comply with a sex offender management

program and comply with sex offender registry requirements.

[8] At the same hearing, Greer reviewed and signed a document captioned

“Indiana Recommended Special Probation Conditions for Adult Sex

Offenders.” Id. at 29. In addition, the trial court read the document to Greer,

and Greer stated that he had read and understood the document.

1 A transcript of this hearing has not been included in the record.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 3 of 10 [9] The document contained a list of conditions. Each condition was preceded by

spaces for a defendant’s initials and a checkmark. The document explained,

“[t]he special conditions checked below apply to you as a result of your sex

offense conviction and should be initialed by you after you have read these

conditions or after these conditions have been read to you.” Id. Greer placed

his initials next to the following relevant conditions:

2. You shall not reside within one thousand (1,000) feet of school property (as defined in IC 35-41-1-24.7 . . . for the period of probation . . . .

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3. [You] shall not reside within one thousand (1,000) feet of school property, or a youth program center or a public park.

15. You shall not travel alone after 10 p.m. (including but not limited to: driving, walking, bicycling, etc.) unless given permission by your probation officer.

16. You shall notify your probation officer of your establishment of an intimate and/or sexual relationship. You shall notify any person with whom you are engaged in an intimate or sexual relationship of your sex-related conviction(s). You shall not engage in an intimate or sexual relationship with any person who has children under the age of 18 years.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 4 of 10 19. You must never be alone with or have contact with any person under the age of 18. Contact includes face-to-face, telephonic, written, electronic or any indirect contact via third parties.

20. You shall not be present at schools, playgrounds, or day care centers unless given permission by the court.

21. You shall not participate in any activity which involves children under 18 years of age, such as, but not limited to, youth groups . . . or youth sports teams, unless given permission by the Court.

27. You are prohibited from accessing or using certain web sites, chat rooms, or instant messaging programs frequented by children.

Id. at 29-31.

[10] On June 20, 2018, while he was still serving the executed portion of his

sentence, Greer filed a “Motion to Remove Probation Stipulation.” Id. at 32.

Greer supplemented the motion by addendum on August 17, 2018. In

summary, Greer asked the trial court to revise the conditions of his probation to

remove any restrictions on contacts with minors. He also asked the court to

remove the condition barring him from traveling alone after 10:00 p.m. He

claimed that those conditions would hinder his “re-entry into society” by

restricting his contact with his younger relatives. Id. at 32. Greer further

argued the restrictions would unfairly limit where he could live.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 5 of 10 2 [11] On October 18, 2018, the trial court held a hearing on Greer’s motion. On

November 27, 2018, the trial court issued an order. The court declined to

remove any of the conditions Greer challenged, but the court modified several

conditions restricting Greer’s contact with minors so that Greer could seek the

court’s permission to relax those conditions on a case by case basis “as specific

circumstances arise.” Id. at 43. This appeal followed.

Discussion and Decision [12] Before we address the merits of Greer’s argument, the State claims Greer

cannot now challenge the conditions of his probation because he pleaded guilty

and accepted those conditions as part of his plea agreement. We agree.

[13] A plea agreement is a contract, and once the trial court accepts it, the terms of

the plea agreement are binding upon the trial court, the State, and the

defendant. Archer v. State, 81 N.E.3d 212, 215-16 (Ind. 2017). In general, a

person who pleads guilty may later challenge the merits of the trial court’s

sentencing decision only if “the trial court has exercised sentencing discretion,

i.e., where the sentence is not fixed by the plea agreement.” Collins v. State, 817

N.E.2d 230, 231 (Ind. 2004).

[14] In Greer’s case, the parties agreed in the April 11, 2011 Joint Motion that he

would serve an executed sentence of twenty-five years, plus five years of

2 A transcript of this hearing has not been included in the record.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 6 of 10 probation. The parties further agreed that Greer would be subject to conditions

of probation, including “comply[ing] with Sex Offender Mgmt Program/Terms

of Probation.” Appellant’s App. Vol. 2, p. 23. The precise elements of the sex

offender management program were not set forth in the agreement, but Greer

was aware that, by pleading guilty, he would be subject to those additional

requirements. At the sentencing hearing, the trial court reviewed the

requirements of the program with Greer, and he signed the document

acknowledging he understood these additional conditions of probation.

[15] We conclude that compliance with a sex offender management program, with

terms to be detailed later, was part of the bargain to which Greer agreed. He

may not now challenge the terms of his probation, just as he may not challenge

his executed sentence. See Freije v. State, 709 N.E.2d 323, 325 (Ind. 1999)

(explaining that “some ‘special’’ or ‘additional’ conditions that do not

materially add to the punitive obligation” are a binding part of the plea 3 agreement even if set forth in a separate form).

[16] Waiver notwithstanding, we turn to the merits of Greer’s appeal. He argues

that the trial court erred in refusing to eliminate the conditions of probation

barring him from interacting with children. Greer reasons that he was

convicted of a sex crime against an adult, and as a result, limitations on his

3 In the alternative, the State argues that Greer also waived his challenge to the conditions of probation by failing to object to them at the sentencing hearing. We need not address this issue.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 7 of 10 contacts with children are not reasonably related to his rehabilitation or the

safety of the public.

[17] A trial court may impose upon a defendant conditions of probation that are

“reasonably related to the person’s rehabilitation.” Ind. Code § 35-38-2-2.3

(2009). As a result, trial courts have “broad discretion” in establishing a

defendant’s conditions of probation, and we will not disturb a trial court’s

probation ruling absent an abuse of that discretion. Weida v. State, 94 N.E.3d

682, 687 (Ind. 2018). A key inquiry is whether challenged conditions of

probation are “reasonably related to rehabilitating the defendant and protecting

the public.” Id.

[18] Greer does not dispute that he is a sex offender. Indiana Code section 35-38-2-

2.4 (2006) provides that as a condition of probation, the trial court may require

a sex offender to avoid contact with any person under the age of sixteen without

prior court approval. The statute does not distinguish between sex offenses

involving adult victims or child victims. Further, the record indicates that

Greer has committed crimes against children. A victim at his sentencing 4 hearing testified that Greer is “escalating from what he first did to now adults.”

Tr. Vol. 2, p. 7. Requiring Greer to refrain from contact with children is

relevant to protecting public safety and his rehabilitation. See Jackson v. State,

4 In addition, the State directs our attention to Greer’s prior appeals, which discuss his past convictions of child molestation. See Greer v. Buss, 918 N.E.2d 607 (Ind. Ct. App. 2009). The State argues that Greer’s repeat sex offender sentencing enhancement was based on his child molestation convictions, but the record does not identify which prior convictions were the basis for his sentencing enhancement.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 8 of 10 816 N.E.2d 868, 871 (Ind. Ct. App. 2004) (affirming conditions of probation

barring Jackson from being in contact with persons under the age of eighteen;

conditions were related to Jackson’s rehabilitation, even though his sex offense

involved an adult victim; evidence indicated he committed the offense in the

presence of a child).

[19] Greer cites Bleeke v. State, 6 N.E.3d 907 (Ind. 2014), in which the Indiana

Supreme Court determined that conditions of Bleeke’s parole barring him from

contact with children were invalid. Bleeke, like Greer, had been convicted of a

sex crime against an adult victim. We conclude Bleeke is distinguishable from

this case for two reasons. First, parole and probation are two different

circumstances. In fact, the Bleeke Court discussed Jackson and noted that

probation conditions are within a trial court’s discretion, as opposed to parole,

which is a function of the executive branch. Second, there was no evidence that

Bleeke posed a threat to children. In Greer’s case, the record from his

sentencing hearing, combined with his criminal record, demonstrate that he

poses a risk to children.

[20] We are also aware of a closer, but still distinguishable case, Waters v. State, 65

N.E.3d 613 (Ind. Ct. App. 2016). Waters was convicted of criminal deviate

conduct and other offenses against an adult victim. He pleaded guilty. Before

he was released from incarceration, the trial court imposed conditions of

probation barring him from contact with minors. Waters appealed, claiming

that barring him from contacting minors was without evidentiary support. A

panel of this Court concluded the conditions of probation were inappropriate

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 9 of 10 because there was no evidence that Waters was a threat to children. By

contrast, in Greer’s case there is evidence that he poses a risk to children. As a

result, Greer has failed to demonstrate that the trial court abused its discretion

by declining to eliminate the sex offender conditions of probation that bar him

from contact with children without prior court permission.

Conclusion [21] For the reasons stated above, we affirm the judgment of the trial court.

[22] Affirmed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3143 | May 1, 2020 Page 10 of 10