COA: Man’s sex-offender probation conditions ‘overly broad’

Although a Boone County man waived his right to object to the delay of the imposition of the sex-offender conditions of his probation, the Indiana Court of Appeals found Monday that a handful of those convictions were erroneously imposed.

In September 2008, Antonio Waters went to a bar with S.C., then returned to S.C.’s home, where Walters punched her in the face and knocked her to the ground. He then continued to punch her while she was lying on the ground and also removed her pants and underwear in a failed attempt to penetrate her. He then forced his penis into S.C.’s mouth and squeezed his hands tightly around her neck.

When S.C. broke free, she called the police and Waters was charged with attempted rape, criminal deviate conduct, criminal confinement, battery resulting in bodily injury and strangulation. After pleading guilty in 2009 to criminal deviate conduct, battery resulting in bodily injury and strangulation, Walters was sentenced to 21 ½ years, with 16 years to be served in the Indiana Department of Correction and 5 ½ years suspended to probation.

The Boone Circuit Court imposed standard conditions of probation and informed him that he would “be on probation” while incarcerated. However, the court delayed the imposition of sex-offender conditions until another hearing within 30 days of his release. Waters did not object to the delay.

The day before Walters was released in March 2016, the trial court held a hearing on the sex-offender conditions of his probation, and Walters objected to the bifurcation for the first time. The court ruled that Waters had waived any objection to bifurcation and imposed eight mandatory conditions and 18 discretionary conditions.

Waters appealed, arguing that the imposition of the sex-offender conditions violated Indiana Code because he had already been “on probation” while in prison. In the alternative, Waters also argued that a 6 ½ – year delay in the sentencing hearing violated Indiana Criminal Procedure Rule 11.

But the Indiana Court of Appeals agreed with the trial court Monday, writing that Waters had waived his objection to the delayed imposition of the additional conditions when he did not object in 2009, and further found that the Boone Circuit Court’s decision to put him “on probation” while in prison did not mean that his probation would begin while he was in prison.

But Walters further argued that even if the 2016 hearing was proper, the trial court erred when it imposed seventeen of the 18 discretionary sex offender conditions. Specifically, Waters challenged five of the conditions, four of which restricted his contact with minors and one of which restricted his internet access without the approval of his probation officer.

Chief Judge Nancy Vaidik wrote Monday that the appellate panel agreed with Waters that the restrictions related to minors under the age of 16 are not supported by evidence that Waters is a particular threat to minors. Thus, the imposition of those restrictions was erroneous, Vaidik wrote.

Further, Vaidik wrote that Waters’ internet access restrictions were overly broad, as the internet has become “increasingly pervasive” in people’s daily lives. Because there is no evidence that Waters used to internet in his attack on S.C. or that he has a history of illegal web use, the appellate panel remanded the case to the Boone Circuit Court with instructions to impose a narrower internet restriction that is more in line with Waters’ “issues with women.”

The case is Antonio Waters v. State of Indiana, 06A05-1604-CR-863.