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concluding that prohibiting internet access could be reasonable only if the condition allows a probation officer to allow necessary internet use under appropriate conditions
Summary of this case from Ellis v. StateOpinion
Court of Appeals No. A-10205, No. 5487.
June 10, 2009.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-06-02028 CR.
Doug Miller, Assistant Public Advocate, and Rachel Levitt, Acting Director, Office of Public Advocacy, Anchorage, for the Appellant. Rachel K. Gernat, Assistant District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Mark Alan Dunder pleaded no contest to sexual abuse of a minor in the first degree, sexual abuse of a minor in the second degree, and distribution of child pornography. Superior Court Judge Eric Smith sentenced Dunder to a composite sentence of 36 years' imprisonment, with 9 years suspended. Judge Smith placed Dunder on probation for a period of 25 years following his release from confinement. As a special condition of probation, Judge Smith ordered that Dunder was "prohibited from possessing any device capable of accessing the internet, storing movies, or photographs[,] or [that] has a wireless capability such as an iPod, MP3 player device[,] or a cell phone."
AS 11.41.434(a)(2).
AS 11.41.436(a)(1).
AS 11.61.125(a).
Dunder argues that this probation condition is unduly restrictive. Under Roman v. State, parole and probation conditions "must be reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty." Dunder points out that it is difficult to function in modern society without access to the technology that Judge Smith's order prohibits him from possessing. He further suggests that, by the time he is released from his lengthy term of imprisonment, it will likely be even more difficult to function in society "without the use of at least one electronic device." Given the rapid advance of technology and the length of Dunder's sentence of imprisonment, we agree that some degree of access to these devices will probably be necessary to Dunder's reintegration into society. We accordingly conclude that the probation condition, in its current form, is unduly restrictive.
570 P.2d 1235 (Alaska 1977).
Id. at 1240.
It appears to us that the solution to the problem is to adopt a probation condition that is similar to the one recommended in Dunder's presentence report. In that report, the probation officer recommended a special condition of probation that would prohibit Dunder from accessing the Internet without prior permission from his probation or parole officer.
See, e.g., United States v. Walser, 275 F.3d 981, 988 (10th Cir. 2001) (holding that the trial court did not commit plain error in imposing a condition of supervised release that prohibited Internet use without prior permission from the probation office); United States v. Deaton, 204 F. Supp. 2d 1181, 1183 (E.D. Ark. 2002) (holding that a complete ban on Internet access for a defendant convicted of possession of child pornography was "overly broad" and that the condition should be amended to allow defendant to access the Internet with prior permission from the U.S. Probation Office).
We conclude that, consistent with Roman, Judge Smith could properly impose a probation condition that prohibited Dunder from using or possessing Internet-capable, wireless, and electronic storage devices unless he obtains permission from his probation or parole officer. A sufficient nexus exists between the offenses for which Dunder was convicted and a probation condition restricting use of the Internet and computers — Dunder's crimes directly involved the use of a computer and the Internet to commit serious sexual offenses against minors. This condition, however, should be structured so that a probation or parole officer could allow Dunder's possession of such devices under appropriate conditions, subject to Dunder's agreement to allow periodic inspections or other monitoring. Such a condition, in allowing for approved but restricted possession and use of Internet-capable, wireless, and electronic storage devices, would be reasonably related to both Dunder's rehabilitation and the protection of the public.
See, e.g., United States v. Paul, 274 F.3d 155, 169 (5th Cir. 2001) (complete ban on Internet and computer use was "reasonably related" to the offense of possession of child pornography); United States v. Granger, 117 Fed. App'x 247, 249 (4th Cir. 2004) (noting that restrictions on Internet use serve to "take away . . . access to the standard medium of exchange for individuals who trade in child pornography — the internet, e-mail, and other like forms of communication"); United States v. Knight, 86 Fed. App'x 2, 4 (5th Cir. 2003) (rejecting defendant's argument that restrictions on Internet and computer use were too broad because the defendant's home computer was the "primary tool" for his offense of receiving child pornography). Cf. United States v. Peterson, 248 F.3d 79, 82-83 (2d Cir. 2001) (vacating a condition restricting computer and Internet use where there was no indication that the defendant's incest offense was connected to the use of computers or the Internet).
See, e.g., United States v. White, 244 F.3d 1199, 1207 (10th Cir. 2001) ("[A]ny condition limiting [defendant's] use of a computer or access to the Internet must reflect [the realities of the Internet] and permit reasonable monitoring by a probation officer."); see also Jane Adele Regina, Comment, Access Denied: Imposing Statutory Penalties on Sex Offenders Who Violate Restricted Internet Access as a Condition of Probation, 4 Seton Hall Cir. Rev. 187, 200-03 (2007) (arguing that the "Internet's dominant role in society makes monitored restricted access a more viable option for the courts" and describing various methods of ensuring compliance with restrictions on Internet use). But see United States v. Lifshitz, 369 F.3d 173, 193 (2d Cir. 2004) ("The scope of the monitoring condition may . . . be overbroad, and it is not clear from the record as it stands whether or not monitoring is sufficiently effective to justify its implementation.").
The case is REMANDED to the superior court for modification of the probation condition consistent with this decision.