Indiana Lawyer on 03/20/2018 by Olivia Covington
The Vigo Superior Court must provide a man convicted of resisting and spitting on local law enforcement officers with a written list of his specific probation conditions after the Indiana Court of Appeals found discrepancies and vagueness in the conditions provided.
In Dustin McCarty v. State of Indiana, 84A04-1707-CR-1599, a Terre Haute police officer encountered Dustin McCarty while responding to another call and arrested him after discovering an outstanding warrant. While being transported to the Vigo County Jail, McCarty spit on the officer, Philip Ralston twice and put up a fight when other officers attempted to remove him from the vehicle and place him in a mobile incarceration unit.
After McCarty was found guilty of Class D felony battery by bodily waste and Class A misdemeanor resisting law enforcement, the Vigo Superior Court sentenced him to 2½ years, with credit for 290 days served and the remainder sentenced to probation. The court imposed standard terms of probation, including terms that required him to “avoid persons and places of harmful character,” and to “(not) consume alcohol in a lawful manner unless ordered to abstain …”, with the word “not” handwritten into the term.
McCarty appealed his probation terms, and the Indiana Court of Appeals agreed with his argument that the trial court erred in failing to provide him with written probation conditions at his sentencing. Judge Paul Mathias wrote Tuesday that McCarty did not receive written notice of his conditions until a meeting with his probation officer four days after sentencing. Mathias also noted that the conditions McCarty was provided erroneously imposed a complete alcohol ban.
Rather than a complete ban, Mathias said the trial court had orally ordered McCarty to undergo an alcohol and drug evaluation, but that condition was not included in the written statement. Considering those discrepancies, the appellate court remanded the case with instructions to correct the altered alcohol-related probation condition and to provide a new listing that explicitly requires McCarty to undergo the evaluation.
“Although the trial court erred when it failed to provide McCarty with written conditions of probation at sentencing, the record does not indicate that McCarty violated, or was arrested and charged with violating, any terms of that probation in the four-day period between sentencing and his first appointment with the probation department,” Mathias wrote. “For this reason, we can find that error to be harmless error.”
McCarty also challenged the relevance of the order for him to undergo the evaluation, but considering his subsequent conviction of Class B misdemeanor public intoxication, the appellate panel determined the condition was reasonably related to his rehabilitation. However, the panel agreed that the prohibition on his association with “persons and places of harmful character” was impermissibly vague and, thus, remanded for the trial court to provide clarity.