RAYMOND WILFONG v. COMMONWEALTH OF KENTUCKY
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RENDERED:
December 10, 2004; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2002-CA-000535-MR
RAYMOND WILFONG
APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 01-CR-00057
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** ** ** **
BEFORE:
JOHNSON, MINTON, AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Raymond Wilfong has appealed from the judgment
and sentence of the Meade Circuit Court entered on March 12,
2002, which sentenced him to one-year imprisonment on his
conviction for rape in the third degree1 and a subsequent threeyear period of conditional discharge as required by KRS 532.043.2
Having concluded that KRS 532.043 does not violate the
1
Kentucky Revised Statutes (KRS) 510.060.
2
KRS 532.043 provides as follows:
(1)
In addition to the penalties authorized by law,
any person convicted of, pleading guilty to, or
entering an Alford plea to a felony offense
under KRS Chapter 510, KRS 529.030, 530.020,
530.064, 531.310 or 531.320 shall be subject to
a period of conditional discharge following
release from:
(a)
(b)
Incarceration upon expiration of
sentence; or
Completion of parole.
(2)
The period of conditional discharge shall be
three (3) years.
(3)
During the period of conditional discharge, the
defendant shall:
(a)
Be subject to all orders specified
the Department of Corrections; and
by
(b)
Comply with all education, treatment,
testing, or combination thereof required
by the Department of Corrections.
(4)
Persons under conditional discharge pursuant to
this section shall be subject to the
supervision of the Division of Probation and
Parole.
(5)
If a person violates a provision specified in
subsection (3) of this section, the violation
shall be reported in writing to the
Commonwealth’s attorney in the county of
conviction. The Commonwealth’s attorney may
petition the court to revoke the defendant’s
conditional discharge and reincarcerate the
defendant as set forth in KRS 532.060.
(6)
The provisions of this section shall apply only
to persons convicted, pleading guilty, or
entering an Alford plea after July 15, 1998.
Further, KRS 532.060(3) provides as follows:
For any felony specified in KRS Chapter 510, KRS
530.020, 530.064, or 531.310, the sentence shall
include an additional three (3) year period of
conditional discharge which shall be added to the
maximum sentence rendered for the offense. During
this period of conditional discharge, if a defendant
violates the provisions of conditional discharge, the
defendant may be reincarcerated for:
(a)
The remaining period of his
initial sentence, if any is remaining; and
2
separation of powers doctrine and that the conditions of
Wilfong’s conditional discharge as of this time have not
deprived him of his right to due process, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 7, 2001, a Meade County grand jury indicted
Wilfong on one felony count of incest3 and one felony count of
rape in the third degree for having sexual intercourse with his
mentally retarded, 20-year-old stepdaughter.
On February 20,
2002, before he actually pled guilty to any charge, Wilfong
filed a motion requesting the trial court to enter an order
prohibiting the Department of Corrections from imposing the
post-incarceration, three-year conditional discharge term
required under KRS 532.043.
Wilfong maintained the statute
violated the separation of powers doctrine, the right to jury
sentencing, and the right to access to the courts.
On February 21, 2002, pursuant to a plea agreement
with the Commonwealth which recommended a prison sentence of one
year, Wilfong entered a plea of guilty under North Carolina v.
Alford,4 to one count of rape in the third degree.
charge was dismissed.
(b)
The incest
During the guilty plea hearing, the
The entire period of conditional discharge, or
if the initial sentence has been served, for
the remaining period of conditional discharge.
3
KRS 530.020.
4
400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
3
parties discussed Wilfong’s motion challenging KRS 532.043, and
the Commonwealth was allowed additional time to submit a written
response to the motion pending final sentencing.5
At the final sentencing hearing conducted on March 7,
2002, the trial court denied Wilfong’s motion, although the
judge expressed reservations about the statute.
The trial court
sentenced Wilfong to prison for one year, plus a three-year
period of conditional discharge following his release from
incarceration upon expiration of his sentence or completion of
parole.
This appeal followed.
We begin our analysis by noting that acts of the
General Assembly carry a presumption of constitutionality.6
A
statute will not be invalidated as unconstitutional unless it
clearly, unequivocally, and completely violates provisions of
the constitution.7
“Moreover, the Commonwealth does not bear the
burden of establishing the constitutionality of a statute,
rather ‘[t]he one who questions the validity of an act bears the
burden to sustain such a contention.’”8
The issue of whether a
5
Wilfong notified the Attorney General of the constitutional challenge
pursuant to Kentucky Rules of Civil Procedure (CR) 24.03 and KRS 418.075(1),
but the Attorney General declined to respond.
6
Martinez v. Commonwealth, Ky., 72 S.W.3d 581, 584 (2002).
7
Cornelison v. Commonwealth, Ky., 52 S.W.3d 570, 572 (2001).
8
Cornelison, 52 S.W.3d at 572-73 (quoting Stephens v. State Farm Mutual Auto
Insurance Co., Ky., 894 S.W.2d 624, 626 (1995)).
4
statute is unconstitutional is a question of law subject to de
novo review.9
II. SEPARATION OF POWERS DOCTRINE
A. Infringement on Judicial discretion
First, Wilfong alleges that KRS 532.043 violates the
separation of powers doctrine by infringing upon the judiciary’s
duty to administer justice because it places unreasonable
restrictions on the court’s exercise of discretion.
He notes
that unlike most sentencing statutes, which provide minimum and
maximum terms and permit the exercise of discretion within a
range of punishment, KRS 532.043 removes all discretion from the
trial court by imposing a three-year mandatory conditional
discharge.
The separation of powers doctrine precludes each of
the three branches of government from encroaching upon the
domain of the other two branches.10
Section 2711 of the Kentucky
Constitution creates three distinct branches of government and
9
United States v. Layne, 324 F.3d 464, 471 (6th Cir. 2003)(stating that
constitutional challenges to sentencing are legal issues to be reviewed de
novo); Moore v. Ward, Ky., 377 S.W.2d 881, 883 (1964).
10
See, e.g., Loving v. United States, 517 U.S. 748, 757, 116 S.Ct. 1737,
1743, 135 L.Ed.2d 36 (1996); and Manns v. Commonwealth, Ky., 80 S.W.3d 439
(2002).
11
“The powers of the government of the Commonwealth of Kentucky shall be
divided into three distinct departments, and each of them be confined to a
separate body of magistracy, to wit: Those which are legislative, to one;
those which are executive, to another; and those which are judicial, to
another.”
5
Section 2812 precludes one branch from exercising any power
properly belonging to either of the other two branches.
Section
11613 reserves to the Supreme Court the power to prescribe rules
of practice and procedure for the Court of Justice.14
The legislature, rather than the judiciary, designates
the elements of criminal conduct and the penalty for crimes.15
The legislature is vested with the power to prescribe punishment
for crimes and the judiciary’s role is to impose sentences
within the statutory limits prescribed by the legislature.16
The
legislature has the exclusive authority to establish the
punishment for crimes subject only to substantive constitutional
restrictions such as due process, equal protection, ex post
12
“No person or collection of persons, being of one of those departments,
shall exercise any power properly belonging to either of the others, except
in the instances hereinafter expressly directed or permitted.”
13
“The Supreme Court shall have the power to prescribe rules governing its
appellate jurisdiction, rules for the appointment of commissioners and other
court personnel, and rules of practice and procedure for the Court of
Justice. The Supreme Court shall, by rule, govern admission to the bar and
the discipline of members of the bar.”
14
See generally Legislative Research Commission By and Through Prather v.
Brown, Ky., 664 S.W.2d 907, 911 (1984).
15
See Arroyo v. United States, 359 U.S. 419, 424, 79 S.Ct. 864, 867, 3
L.Ed.2d 915 (1959)(stating that “‘[i]t is the legislature, not the Court,
which is to define a crime, and ordain its punishment’” (quoting United
States v. Wiltberger, 18 U.S. 76, 95, 5 L.Ed. 37 (1820))); Cornelison, 52
S.W.3d at 573 (stating that “[t]he discretion to define the level of harm and
the appropriate punishment is within the purview of the Legislature, not this
Court”); and Mullins v. Commonwealth, Ky.App., 956 S.W.2d 222, 223
(1997)(stating that “the legislature has the power to designate what is a
crime and the sentences for violations thereof”).
16
State v. Schwartz, 628 N.W.2d 134, 139 (Minn. 2001); State v. Horn, 594
N.W.2d 772, 777 (Wis. 1999).
6
facto or cruel and unusual punishment.17
Consequently, we reject
Wilfong’s assertion that the General Assembly’s enactment in KRS
532.043 of the specific penalty of a mandatory three-year
conditional discharge violated the separation of powers doctrine
by infringing upon the judiciary’s duty to administer justice.
Similarly, we reject Wilfong’s contention that the
legislature unconstitutionally usurped judicial functions by
eliminating the exercise of discretion by the trial court in
fixing a sentence.
While conceding that the legislature may
restrict judicial discretion within a sentencing term range,
Wilfong argues that eliminating such discretion entirely is
forbidden.
However, this argument is contrary to the plenary
power of the legislature to set criminal penalties.
“The
legislature’s discretion necessarily includes the power to
prescribe mandatory sentences, even if these mandatory sentences
restrict the judiciary’s discretion for imposing sentences.”18
The courts have no authority to impose a sentence contrary to
that authorized by the legislature.19
17
Workman v. Commonwealth, Ky., 429 S.W.2d 374, 377 (1968)(stating what
constitutes adequate punishment is reserved to the legislature as long as it
is not violative of the cruel and unusual punishment provision of the
Constitution).
18
People v. Miller, 781 N.E.2d 300, 306 (Ill. 2002).
19
Bartrug v. Commonwealth, Ky.App., 582 S.W.2d 61, 63 (1979)(stating that the
trial court’s discretion in sentencing is controlled by the mandatory term in
sentencing statute).
7
Furthermore, there is no constitutional right to
individual sentencing based on the exercise of judicial
discretion.
In Chapman v. United States,20 the Supreme Court of
the United States rejected the argument that the legislature
could not eliminate discretionary sentencing.
Such a sentencing scheme — not considering
individual degrees of culpability — would
clearly be constitutional. Congress has the
power to define criminal punishments without
giving the courts any sentencing discretion.
Determinate sentences were found in this
country’s penal codes from its inception and
some have remained until the present. A
sentencing scheme providing for
“individualized sentences rests not on
constitutional commands, but on public
policy enacted into statutes” [emphases
added] [citations omitted].21
Thus, any judicial discretion in setting criminal penalties is
derived from and subject to the legislature’s power to establish
criminal punishment.
In turn, the courts are required to impose
an otherwise valid sentence prescribed by the legislature and
the fact that the sentence is a single mandatory term does not
violate the separation of powers.22
20
Accordingly, KRS 532.043
500 U.S. 453, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).
21
Id. 500 U.S. at 467 (quoting Lockett v. Ohio, 438 U.S. 586, 604-05, 98
S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978)).
22
See, e.g., United States v. Van Horn, 798 F.2d 1166, 1168 (8th Cir.
1986)(stating that Congress need not provide range of options for the court
and can establish a mandatory set sentence); People v. Hill, 771 N.E.2d 374
(Ill. 2002)(stating that mandatory additional 15-year sentence for armed
burglary did not violate separation of powers); State v. Johnson, 567 S.E.2d
486 (S.C.App. 2002)(upholding mandatory life imprisonment without parole
under state two-strikes law against separation of powers challenge); People
8
does not violate the separation of powers doctrine by usurping
judicial authority or by infringing upon judicial functions.
Wilfong further suggests that “public policy” cautions
against allowing the legislature to create mandatory punishment
for sexual offenders because it could lead to abuse in
sentencing for other crimes.
This argument raises the same
issues presented in Wilfong’s separation of powers argument.
It
is well-established that the enunciation of public policy is the
domain of the legislature; the courts interpret the law and do
not enact legislation.23
“The propriety, wisdom and expediency
of statutory enactments are exclusively legislative matters.”24
The court cannot invalidate a statute merely because it
disagrees with the public policy embodied in the statute.25
As indicated earlier, the determination of penalties
for criminal conduct necessarily concerns the consideration of
various public policy interests that are peculiarly within the
v. Boyd, 23 P.3d 1242 (Colo.App. 2001)(stating that sentencing court was
required to impose mandatory five-year parole term); State v. De La Cruz, 393
S.E.2d 184 (S.C. 1990)(rejecting argument that mandatory sentence for
trafficking in cocaine of 25 years without suspension of sentence or
possibility of probation violated separation of powers by depriving
sentencing court of discretion); and Commonwealth v. Waters, 483 A.2d 855
(Pa.Super 1984)(stating that mandatory life sentence for first-degree murder
did not violate separation of powers).
23
Wilson v. Kentucky Transportation Cabinet, Ky., 884 S.W.2d 641, 646 (1994).
24
Owens v. Clemons, Ky., 408 S.W.2d 642, 645 (1966).
25
Commonwealth, ex rel. Cowan v. Wilkinson, Ky., 828 S.W.2d 610, 614 (1992).
9
role of the legislature.
In Harmelin v. Michigan,26 Justice
Kennedy stated:
Determinations about the nature and purposes
of punishment for criminal acts implicate
difficult and enduring questions respecting
the sanctity of the individual, the nature
of law, and the relation between law and the
social order. . . . The efficacy of any
sentencing system cannot be assessed absent
agreement on the purposes and objectives of
the penal system. And the responsibility
for making these fundamental choices and
implementing them lies with the legislature
[citations omitted].
Absent challenges involving specific constitutional or statutory
prohibitions, this Court has no authority to invalidate KRS
532.043 on public policy grounds.
B.
Jury Sentencing
Wilfong also contends that KRS 532.043 is invalid
because it infringes upon the duties of the jury.
He correctly
concedes that he has no federal or state constitutional right to
have a jury fix the sentence or penalty.27
Further, Wilfong does
not challenge the legislature’s authority to eliminate jury
consideration of that portion of the sentence mandating post-
26
501 U.S. 957, 998, 111 S.Ct. 2680, 2703, 115 L.Ed.2d 836 (1991) (Kennedy,
J., concurring).
27
See Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82
L.Ed.2d 340 (1984)(recognizing that there was no federal constitutional right
to jury sentencing even for capital offenses); and Perry v. Commonwealth,
Ky., 407 S.W.2d 714, 715 (1966)(holding that there was no right to jury
sentencing under Kentucky Constitution § 7).
10
incarceration conditional discharge.28
However, he notes that
KRS 532.055, the Truth in Sentencing Statute, provides generally
for jury sentencing.
Wilfong asserts that in order to fulfill
its role in sentencing, the jury should be provided information
regarding the statutorily required post-incarceration, threeyear term of conditional discharge for sex offenders.
He argues
that KRS 532.043 should not be construed to prohibit informing
the jury of the mandatory post-incarceration, conditional
discharge term.
He contends that such a procedure would
illegally infringe upon the jury’s duty in considering the
indeterminate term of the sentence.29
However, since Wilfong
pled guilty and was not sentenced by a jury, his request that
this Court declare KRS 532.043 to be in violation of KRS 532.055
and the constitutional guarantee of due process is wholly
without merit.30
III. CONDITIONS OF CONDITIONAL DISCHARGE
In addition to challenging the imposition of postincarceration conditional discharge, Wilfong contests the actual
conditions of his conditional discharge as violating his right
28
See also Kentucky Rules of Criminal Procedure (RCr) 9.84(1).
29
See generally Boone v. Commonwealth, Ky., 780 S.W.2d 615 (1989)(holding
that defendant has due process right to introduce evidence on minimum parole
eligibility in sentencing phase).
30
Kohler v. Benckart, Ky., 252 S.W.2d 854, 858 (1952)(stating that “[o]nly
those [persons] who are prejudiced by an unconstitutional law can complain of
it”).
11
to due process.
During the term of post-incarceration
conditional discharge, defendants are subject to the orders of
the Department of Corrections.31
Department of Corrections’
policies impose several special conditions on conditional
dischargees which mirror those imposed upon defendants convicted
of sex offenses who are granted probation or parole.32
Wilfong
objects to the following conditions of his conditional
discharge: (1) that he not establish a romantic relationship
with an adult without prior approval from his probation officer;
(2) that he not possess any sexually arousing materials; (3)
that he not reside near, visit, or be in or about various places
where children congregate without advance approval of his
probation officer; and (4) that he not possess items on his
person or property that attract children.
Wilfong alleges that these conditions provide
insufficient notice of prohibited conduct and that they are
overly broad, thereby unfairly exposing him to reincarceration.
While the revocation of supervised release is not part of a
criminal prosecution requiring the full panoply of due process
protections, the conditional loss of freedom embodied in the
revocation of supervised release constitutes a deprivation of a
defendant’s liberty which invokes certain limited procedural due
31
KRS 532.043(3).
32
See Kentucky Corrections Policies and Procedures (CPP) 27-30-02.
12
process rights.33
Among those rights is the right of fair notice
or warning of the conduct that may result in the revocation of
supervised release.34
Whether a condition of conditional
discharge violates a defendant’s constitutional rights is a
legal question that is reviewed de novo.35
While not stated in these express terms, Wilfong’s
objections to the conditions of his conditional discharge evoke
considerations embodied in the void-for-vagueness and
overbreadth doctrines.
The void-for-vagueness doctrine is based
upon the due process requirements of the Fifth and Fourteenth
Amendments to the United States Constitution;36 whereas, the
overbreadth doctrine is limited generally to protecting against
the infringement of other fundamental rights, especially First
Amendment rights.37
The vagueness and overbreadth doctrines are
related in that they both prohibit the use of overly ambiguous
33
See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d
656 (1973)(recognizing that due process rights attach to probation revocation
proceedings).
34
United States v. Twitty, 44 F.3d 410, 412 (6th Cir. 1995).
35
United States v. Gallo, 20 F.3d 7, 11 (1st Cir. 1994).
36
See Belle Maer Harbor v. Charter Township of Harrison, 170 F.3d
553, 556 (6th Cir. 1999); and State v. Gaffney, 795 A.2d 243, 246 (N.H.
2002).
37
Coleman v. DeWitt, 282 F.3d 908, 914 (6th Cir. 2002); Commonwealth v. Kash,
Ky.App., 967 S.W.2d 37, 42 (1997).
13
language in penal provisions, which sometimes has the effect of
limiting constitutionally-protected activity.38
Although the vagueness and overbreadth doctrines are
related, they are distinct and have significant differences.39
The vagueness doctrine is rooted in due process principles and
is directed toward ensuring fair notice in the clarity and
precision of penal provisions; whereas, the overbreadth doctrine
focuses on a statute’s potential impact on the exercise of a
fundamental right.40
For instance, a provision is too vague if
it fails to give fair notice of what it prohibits; and a
perfectly clear statute may be unconstitutionally overbroad if
it unduly infringes upon a fundamental First Amendment right.41
A. Void-for-Vagueness Doctrine
The void-for-vagueness doctrine requires a statute to
provide fair notice by containing sufficient definiteness so
that ordinary people can understand what conduct is prohibited.42
In addition, the doctrine mandates that the statute be worded in
such a manner so as not to encourage arbitrary or discriminatory
38
See Grayned v. City of Rockford, 408 U.S. 104, 108, 108-15, 92 S.Ct. 2294,
2298, 33 L.Ed.2d 222 (1972); and Humanitarian Law Project v. United States
Department of Justice, 352 F.3d 382 (9th Cir. 2003).
39
See generally Martin v. Commonwealth, Ky., 96 S.W.3d 38 (2003).
40
See United States v. Morrison, 844 F.2d 1057, 1070 (4th Cir. 1988).
41
See Grayned, 408 U.S. at 114.
42
Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903
(1983).
14
enforcement.43
The degree of specificity necessary to avoid
unconstitutional vagueness varies depending on the type of
provision.44
Nevertheless, the legislature need not define every
term or factual situation in a statute, and terms left undefined
are to be accorded their common, everyday meaning.45
Absolute or
exact precision is not required since “flexibility and
reasonable breadth” in the language chosen is constitutionally
acceptable.46
In reviewing a vagueness challenge, the essential
inquiry is whether the statute describes the forbidden conduct
sufficiently so that persons of common intelligence disposed to
obey the law can understand its meaning and application.47
The
Supreme Court of the United States has indicated that the
43
Kolender, 461 U.S. at 357.
44
Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605
(1974)(holding that statute reaching expression sheltered by the First
Amendment must have greater degree of specificity than in other contexts).
45
United States v. Haun, 90 F.3d 1096, 1101 (6th Cir. 1996); O’Leary v.
Commonwealth, Ky., 441 S.W.2d 150, 155 (1969)(stating that a penal statute
need not include every exculpatory circumstance).
46
See Grayned, 408 U.S. at 110; and Kash, 967 S.W.2d at 43 (stating that
“simply because a criminal statute could have been written more precisely
does not mean the statute as written is unconstitutionally vague”).
47
See, e.g., Commonwealth v. Foley, Ky., 798 S.W.2d 947, 951 (1990)(stating
that analysis of constitutional vagueness includes inquiry as to “whether a
person disposed to obey the law could determine with reasonable certainty
from the language used whether contemplated conduct would amount to a
violation”) overruled on other grounds by Martin, 96 S.W.3d at 38; Hardin v.
Commonwealth, Ky., 573 S.W.2d 657, 660 (1978)(applying a “man on the street
approach”); and Sasaki v. Commonwealth, Ky., 485 S.W.2d 897, 901
(1972)(stating that “‘[t]he accepted test in determining the required
precision of statutory language imposing criminal liability is whether the
language conveys a sufficiently definite warning as to the proscribed conduct
when measured by common understanding and practices’” (quoting Anderson v.
United States, 215 P.2d 84 (6th Cir. 1954))).
15
arbitrary enforcement prong is more important than the actual
notice element and requires “minimal guidelines” sufficient to
limit the discretion of government officials.48
The statute
should contain objective, normative standards to prevent purely
subjective decisions by government officers in enforcing the
statute.49
B. Overbreadth Doctrine
The overbreadth doctrine generally involves a claim
that in an effort to control proscribable conduct, a statute
impermissibly reaches constitutionally permissible conduct.50
However, when First Amendment rights involving conduct rather
than speech is at issue, an overbreadth challenge only exists
where the impact of the statute upon these rights is both real
and substantial when considered in relation to the statute’s
plainly legitimate sweep.51
A law should not be invalidated for
overbreadth unless it reaches a substantial number of
impermissible applications.52
The overbreadth claimant bears the
burden of demonstrating from the text of the law that
48
See Kolender, 461 U.S. at 358.
49
See, e.g., City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144
L.Ed.2d 67 (1999).
50
See Hause v. Commonwealth, Ky.App., 83 S.W.3d 5 (2001); and State Board for
Elementary & Secondary Education v. Howard, Ky., 834 S.W.2d 657, 662 (1992).
51
See Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37
L.Ed.2d 830 (1973).
52
New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 3362, 73 L.Ed.2d
1113 (1982); Martin, 96 S.W.3d at 57 n.14.
16
substantial overbreadth exists.53
In order to withstand a facial
overbreadth challenge, a content-neutral statute regulating
expression must be narrowly tailored to further a significant
government interest.54
However, a court facing an overbreadth
challenge may and should narrowly construe a statute to avoid
constitutional problems if possible.55
Supervised-release conditions are subject to the
constitutional doctrines of vagueness and overbreadth.56
However, the principles embodied in those doctrines must be
applied consistently with the unique characteristics of
supervised release.
Inherent in the very nature of supervised
release is the fact that persons on supervised release do not
enjoy the absolute liberty accorded ordinary citizens.57
With
respect to vagueness, a supervisory-release condition is not
53
Virginia v. Hicks, 539 U.S. 113, 123 S.Ct. 2191, 2198, 156 L.Ed.2d 148
(2003).
54
See, e.g., Grayned, 408 U.S. at 110 (noting that statute infringing on
First Amendment rights challenged as overbroad must be narrowly tailored to
further significant government interest).
55
See Ferber, 458 U.S. at 769 n.24; Broadrick, 413 U.S. at 613; and Martin,
96 S.W.3d at 56.
56
See, e.g., United States v. Loy, 237 F.3d 251, 269 (3rd Cir. 2001); Oyoghok
v. Municipality of Anchorage, 641 P.2d 1267 (Alaska Ct.App. 1982); People v.
Lopez, 78 Cal.Rptr.2d 66 (Cal.App. 1998); State v. Kessler, 13 P.3d 1200
(Ariz.App. 2000); and Neil P. Cohen, The Law of Probation and Parole (2nd ed.
1999).
57
See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 591, 151
L.Ed.2d 497 (2001); Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97
L.Ed.2d 709 (1987)(stating that probationer’s privacy interests are less than
that of public at large); United States v. Vincent, 167 F.3d 428, 430 (8th
Cir. 1999); United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.
1975); and State v. Faraday, 842 A.2d 567, 574 (Conn. 2004).
17
unconstitutionally vague (1) if a reasonably intelligent
releasee could understand what conduct is required of him; and
(2) the condition is sufficiently precise to prevent arbitrary
enforcement.58
Supervisory-release conditions need not describe every
possible permutation and “can be written — and must be read — in
a commensense way.”59
Supervisory-release conditions may
interfere with a releasee’s fundamental constitutional rights.60
As a general matter, supervisory-release conditions must be
rationally related to the purposes of supervisory release, which
are rehabilitation of the releasee, deterrence of future
criminal activity, and protection of the public from the
releasee’s being at large.61
Some courts have held that a
supervisory-release condition which impinges on a releasee’s
fundamental constitutional rights must be narrowly tailored and
reasonably related to the state’s significant interest in the
58
See, e.g., United States v. Lee, 315 F.3d 206, 214 (3d Cir. 2003); Loy, 237
F.3d at 264-65; State v. Lo, 599 N.W.2d 659, 661 (Wisc.App. 1999); People v.
Lopez, 78 Cal.Rptr.2d 75 (Cal.App. 1998); People v. Reinertson, 223 Cal.Rptr.
670, 672 (Cal.App. 1986).
59
United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994).
60
See United States v. Myers, 864 F.Supp. 794, 800 (N.D. Ill. 1994); Saidi v.
State, 845 So.2d 1022, 1028 (Fla.App. 2003); and Commonwealth v. Pike, 701
N.E.2d 951, 959 (Mass. 1998).
61
See, e.g., Griffin, 483 U.S. at 875; United States v. York, 357 F.3d 14
(1st Cir. 2004); United States v. Peete, 919 F.2d 1168, 1181 (6th Cir. 1990);
Commonwealth v. Williams, 801 N.E.2d 804, 805 (Mass.App.Ct. 2004); and
Woodson v. State, 864 So.2d 512 (Fla.App. 2004).
18
purpose of supervisory release, i.e., rehabilitation,
deterrence, and protection of the public.62
Wilfong asks this Court to apply the more relaxed
standing requirements associated with facial constitutional
challenges to the supervisory-release conditions by analyzing
them on behalf of all persons who will be subject to postincarceration conditional discharge.
several reasons.
We decline to do so for
First, unlike statutes, supervisory-release
conditions are directed at individual defendants rather than the
expansive general public.
Therefore, application of vagueness
and overbreadth principles to challenges to supervisory-release
conditions, even those involving First Amendment rights,
typically concern the circumstances of the releasee rather than
hypothetical situations involving all potentially affected
releasees.
The broader standing practices of the facial
overbreadth doctrine, which represent an exception to the normal
“as-applied” approach, were developed because of the judicial
assumption that “the possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the
possibility that protected speech of others may be muted and
62
See, e.g., Loy, 237 F.3d at 264-65 (stating that supervisory-release
conditions affecting First Amendment rights must be narrowly tailored and
directly related to rehabilitation and protecting public); United States v.
Crandon, 173 F.3d 122, 128 (3d Cir. 1999)(same); People v. Garcia, 23 Cal.
Rptr.2d 340, 342 (Cal.App. 1993); and People v. Bauer, 260 Cal.Rptr. 62, 65
(Cal.App. 1989).
19
perceived grievances left to fester because of the possible
inhibitory effects of overly broad statutes.”63
Supervisory-
release conditions have a much narrower application and
individual releasees have a greater incentive to challenge them.
Supervisory releasees also have diminished constitutional
rights.
In other words, Wilfong has not shown that the
restriction on protected-constitutional activity is sufficiently
real and substantial in relation to the legitimate scope of
government regulation of persons on supervisory release to
justify a facial challenge with the relaxed standing approach.64
While we will consider Wilfong’s pre-enforcement challenges to
the conditions,65 we will only review them on an as-applied basis
with reference to his situation and not all hypothetical thirdparties.66
With these principles in mind, we turn to each of the
conditions challenged by Wilfong.
63
Broadrick, 413 U.S. at 612.
64
See, e.g., Kessler, 13 P.3d at 1205.
65
See Loy, 237 F.3d at 264-65; State v. Wright, 739 N.E.2d 1172, 1174 (Ohio
App. 2000)(rejecting argument that probationer could not challenge vagueness
and overbreadth of condition prior to being charged with violation); Cf.
Mangarella v. State, 17 P.3d 989 (Nev. 2001)(involving direct appeal from
judgment on guilty plea challenging mandatory condition of probation as
unconstitutionally vague and overbroad).
66
See Oyoghok, 641 P.2d at 1267.
20
C. The Individual Conditions of Conditional
Discharge
1.
Dating, intimate, or sexual relations with
an adult
The first condition prohibits Wilfong from
establishing a “dating, intimate, sexual relationship with an
adult without prior approval of a Probation and Parole Officer
and treatment clinician.”
Wilfong fails to explain how the
condition is unconstitutional except to question the fact that
it applies to relationships with adults.
Wilfong apparently
implies that it is overbroad because he was convicted of sexual
abuse of a minor.
In Krebs v. Schwarz,67 the Court upheld as not
overbroad a probation condition prohibiting Krebs, who had been
convicted for sexual assault of his daughter, from entering into
any dating, intimate, or sexual relationship with any person
without first notifying and obtaining approval from his
probation officer.
The Court noted that the condition only
minimally interfered with Krebs’s constitutional right to
privacy since it did not prohibit intimate relationships, but
only required that he obtain approval for them.
Second, the
Court found that the condition furthered the goals of probation.
The Court stated that the condition served to protect the public
by allowing the probation officer to inform Krebs’s potential
67
568 N.W.2d 26 (Wis.App. 1997).
21
partners of his sexual criminal background for both their own
protection, and for the protection of any children to whom they
might be connected.68
The condition also allowed the probation
officer to verify the mental capacity of potential partners who
might be vulnerable to manipulation by Krebs.69
The Court deemed
the condition rationally related to Krebs’s rehabilitation by
forcing him to confront and to admit to his sexually deviate
behavior.70
It concluded that the condition was narrowly drawn
and reasonably related to his rehabilitation.71
Similarly, we
conclude that the condition requiring Wilfong to obtain approval
from his probation officer and treatment clinician before
establishing a dating, intimate, or sexual relationship with an
adult is not unconstitutionally overbroad since it is
sufficiently tailored and reasonably related to the purpose of
supervisory release.
2. Sexually arousing materials
The second condition challenged by Wilfong prohibits
him from possessing “any sexually arousing materials, to include
videos, magazines, books, games, sexual devices or aids, or any
68
Krebs, 568 N.W.2d at 28.
69
Id. at 29.
70
Id. at 28.
71
Id. at 29. See also Smith v. State, 779 N.E.2d 111 (Ind.App.
2002)(upholding condition requiring sexual offender to notify probation
officer of any dating, intimate or sexual relationship was reasonable to
protect children who Smith might gain access to through adult relationships).
22
material which depicts partial or complete nudity or sexually
explicit language.”
The condition also prohibits Wilfong from
“visit[ing] strip joints, adult bookstores, motels which supply
adult movies, or businesses which sell sexual devices or aids
. . . .”
While this condition affects the exercise of Wilfong’s
First Amendment rights, a supervisory releasee does not have an
unqualified First Amendment right to sexually-stimulating or
sexually-oriented materials.72
While the term “sexually arousing
materials” is arguably ambiguous, it should be construed in
relationship to the remainder of the provision, which mentions
nudity and establishments catering to purely sexuallystimulating interests.
We conclude that a commonsense reading
of this condition provides sufficient precision to defeat a
vagueness challenge.73
With respect to overbreadth, it is a legitimate
concern that exposure to sexually-arousing or sexuallyorientated materials may contribute to sexual deviancy or the
possibility of future sexually-abusive behavior.
72
Accordingly,
See United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002).
73
See, e.g., United States v. Phipps, 319 F.3d 177 (5th Cir. 2003)(finding
condition prohibiting possession of “sexually oriented or sexually
stimulating materials” not constitutionally vague); United States v. Bee, 162
F.3d 1232, 1234-35 (9th Cir. 1998) (finding condition prohibiting possession
of “sexually stimulating or sexually oriented materials” not a violation of
First Amendment). But see Fitzgerald v. State, 805 N.E.2d 857 (Ind.App.
2004)(finding condition prohibiting possession of pornographic or sexuallyexplicit materials or any material which depicts partial or complete nudity
or sexually-explicit language unconstitutionally vague).
23
reducing access to sexually-arousing or sexually-oriented
materials furthers the goals of rehabilitation, deterrence, and
public safety in connection with sexual offenders.74
In
addition, the condition is narrowly tailored by providing
specific examples of the types of materials and locations
covered by the provision.
As a result, it is neither
unconstitutionally vague nor overbroad.
3.
Presence at locations where children
congregate
The third condition states that Wilfong will not
“reside near, visit, or be in or about parks, schools, day care
centers, swimming pools, beaches, theaters, or other places
where children congregate without advance approval of [his
probation officer].”
This condition affects Wilfong’s First
Amendment right of association and his protected liberty
interest in freedom of movement.75
In Carswell v. State,76 Carswell was prohibited from
residing near “any area where children congregate.”
The Court
74
See, e.g., Smith, 779 N.E.2d at 118 (restricting sexual offender’s exposure
to sexually-explicit material while on supervisory release protects children
from possible endangerment and would likely aid supervisory releasee’s
rehabilitation). See also United States v. Rearden, 349 F.3d 608 (9th Cir.
2003)(finding supervisory-release condition prohibiting possession of
“materials depicting sexually explicit conduct” not unconstitutionally vague
or overbroad); and Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998)(discussing
evidence on negative effect of exposure of prison inmates to sexuallyexplicit materials on their rehabilitation).
75
See, e.g., Morales, 527 U.S. at 53 (discussing liberty interest in freedom
of movement).
76
721 N.E.2d 1255 (Ind.App. 1999).
24
held that this phrase was void-for-vagueness for failing to
state any predictable standard for identifying in advance the
places near which Carswell was forbidden to reside.77
It stated
that children congregate in numerous varying locations and
Carswell’s place of residence should not be subject to the whim
of local children and where they might choose to gather.78
However, the Court implied that any vagueness problem could be
cured if the condition were more precise by identifying
“specific places such as schoolyards, playgrounds and the like
where children can be expected to congregate as a usual thing.”79
Similarly, in State v. Simonetto,80 the Court upheld a
probation condition that prohibited Simonetto from going to
places where children might congregate, including, but not
limited to schools, day care centers, playgrounds, parks,
beaches, pools, shopping malls, theaters, or festivals, without
approval from his probation officer.
The Court noted that
Simonetto was not absolutely prohibited from going to places
where a child might be.
Rather, he may not go at will to those areas
where comon sense tells us that children are
likely to gather. The court’s list –
77
Carswell, 721 N.E.2d at 1260.
78
Id.
79
Id.
80
606 N.W.2d 275 (Wis.App. 1999).
25
schools, day care centers, playgrounds,
parks, beaches, pools, shopping malls,
theaters and festivals – while not
exhaustive, was certainly extensive enough
to give Simonetto a clear idea of where he
could not go. And should he wish to go to
one of the listed locations, he can -- he
just has to get prior approval from his
agent.81
In United States v. Paul,82 the Court held that a
supervised-release condition instructing Paul to “avoid places,
establishments, and areas frequented by minors” was not
unconstitutionally vague:
Certainly, it would be impossible to
list within the text of Paul’s condition
every specific location that he is
prohibited from frequenting during the term
of his release. Sentencing courts must
inevitably use categorical terms to frame
the contours of supervised release
conditions. Such categorical terms can
provide adequate notice of prohibited
conduct when there is a commonsense
understanding of what activities the
categories encompass. Indeed, it is well
established that the requirement of
reasonable certainty “does not preclude the
use of ordinary terms to express ideas which
find adequate interpretation in common usage
and understanding.”83
In addition, the courts have recognized that
supervisory-release conditions which prohibit releasees
81
Simonetto, 606 N.W.2d at 277-78. See also Britt v. State, 775 So.2d 415
(Fla.App. 2001)(holding condition that prohibited probationer from living
near or working at a “school, daycare center, park, playground, or other
place where children regularly congregate” was not unconstitutionally vague).
82
274 F.3d 155 (5th Cir. 2001).
83
Id. at 167 (quoting Birzon v. King, 469 F.2d 1241, 1243 (2nd Cir. 1972)).
26
convicted of child-sexual abuse from going to places where
children congregate are reasonably designed to further the goals
of supervisory release by reducing their access to children.
This type of condition protects children from possible future
abuse and assists in the offender’s rehabilitation by removing
the temptation presented to sexual offenders and reducing the
opportunity for additional offenses.84
In the case before us, we hold that the condition
prohibiting Wilfong from residing near, visiting or being in or
about parks, schools, day care centers, swimming pools, beaches,
theaters, or other places where children congregate without
advance approval of his probation officer is not
unconstitutionally vague or overbroad.
A commonsense reading of
the provision suggests an interplay between the several places
listed and the reference to locations where children congregate.
Thus, it is sufficiently precise to satisfy the vagueness
requirement.
Wilfong was convicted of sexual abuse of a minor;
thus, the restriction prohibiting him from going to places where
he would likely have access to often unsupervised groups of
children is reasonably related to the state’s interest in
protection of the public and the rehabilitation of Wilfong.
84
See, e.g., Carswell, 721 N.E.2d at 1260; Simonetto, 606 N.W.2d at 277-78;
United States v. Ristine, 335 F.3d 692, 696-97 (8th Cir. 2003); and State v.
Riles, 957 P.2d 655, 665 (Wash. 1998).
27
Further, the condition is narrowly drawn by being limited to
certain locations where children can be expected to congregate.
4. Possession of items that attract children
The fourth condition provides that Wilfong is “not
allowed to possess items on [his] person or property that
attract[ ] children.”
This condition impinges on First
Amendment rights of association and expression, and the due
process interest in property under the Fourteenth Amendment.85
Wilfong attacks this provision as unconstitutionally
vague for failing to provide him fair notice of what behavior
would constitute a violation of the condition.
We hold that the
condition is sufficiently precise to allow either him, or
enforcement personnel, to distinguish between prohibited and
innocent conduct.
general categories.
A supervisory-release condition may use
It is reasonable to assume certain items
may be attractive to most children – e.g., toys.
This condition is not overbroad by not being narrowly
tailored to serve the purposes of supervisory release.
While
this condition potentially prohibits the possession of a large
number of common items useful or attractive to adults, e.g.,
video games, sports equipment, computers, televisions, or even
85
For instance, the condition could cover items such as a television, books,
newspapers and literature. See also People v. Beach, 195 Cal. Rptr. 381, 387
(Cal.App. 1983)(discussing impact of probation condition on right to acquire,
own, enjoy, and dispose of property guaranteed by the Fourteenth Amendment).
28
certain foods, the government interests in rehabilitation and
protection of children is served by reducing the possibility of
Wilfong’s access to children who may be attracted to these
items.
A commonsense reading of the provision requires that the
item attract children.
This would obviously include items
visible in Wilfong’s yard such as a basketball goal or a
trampoline, but not items in his home such as a television or
food.
5. Participation in Sexual Treatment Program
Finally, Wilfong contends that the supervisory-release
condition requiring him to “attend, participate, and
successfully complete a Sex Offender Treatment Program” violates
due process rights.
Since admission or acknowledgement of
having committed a sexually-offensive act is required in order
to obtain certification as having successfully completed the
Sexual Offender Program, Wilfong asserts that this condition is
inconsistent with his Alford plea, which allows a defendant to
plead guilty to an offense while maintaining his innocence and
not admitting guilt.
The courts have rejected a similar
argument involving the ability of the court to revoke probation
for an offender’s refusal to acknowledge the commission of the
offense as part of his sexual-offender treatment program.
29
For example, in Faraday, supra,86 the Court held that
the imposition of a requirement that the defendant admit guilt
in order to successfully complete a sexual-offender treatment
program was not inconsistent with the entry of an Alford plea.
“The entry of a guilty plea under the Alford doctrine carries
the same consequences as a standard plea of guilty.
By entering
such a plea, a defendant may be able to avoid formally admitting
guilt at the time of sentencing, but he nonetheless consents to
being treated as if he were guilty with no assurances to the
contrary.”87
Since the trial court’s acceptance of Faraday’s
Alford plea did not imply that he could unconditionally maintain
his innocence for any and all purposes, the Court stated that
his probation could be revoked for his refusing to admit guilt
in conjunction with his treatment.
In State ex rel. Warren v. Schwarz,88 the trial court
ordered Warren to complete counseling as a condition of
probation following his Alford plea to first-degree sexual
assault of a minor.
Warren challenged the revocation of his
probation for violating the counseling condition after he
refused to admit guilt and was therefore discharged from the
treatment program.
The appellate court rejected Warren’s
86
842 A.2d at 567.
87
Id. at 588.
88
566 N.W.2d 173 (Wis.App. 1997).
30
contention that revoking his probation based upon his denial of
guilt in the treatment program was a violation of his due
process rights when his conviction was pursuant to an Alford
plea.
The Court noted that the Department of Corrections was
authorized to require sexual offenders to admit responsibility
for their offenses as part of their treatment and the
requirement was an appropriate condition of probation in order
to serve the goals of rehabilitating the probationers and
protecting the public.
It held that the trial court’s
acceptance of Warren’s Alford plea did not limit the
requirements that the Department of Corrections could lawfully
impose on Warren, and that his right to due process was not
violated by requiring him to admit responsibility for the sexual
assault as a condition of probation.89
The Court stated, “An
Alford plea does not imply a promise or assurance of anything.
More accurately stated, an Alford plea, if accepted by the trial
court, permits a conviction without requiring an admission of
guilt and while permitting a protestation of innocence.
There
is nothing inherent in the nature of an Alford plea that gives a
defendant any rights, or promises any limitations, with respect
to the punishment imposed after the conviction.”90
We agree with
the reasoning of these courts and likewise reject Wilfong’s
89
Schwarz, 566 N.W.2d at 178.
90
Schwarz, 566 N.W.2d at 177. See also People v. Birdsong, 958 P.2d 1124,
1130 (Colo. 1998); and State v. Jones, 926 P.2d 1318 (Idaho App. 1996).
31
assertion that due process prohibits the imposition of a
condition of conditional discharge that he successfully complete
the Sexual Offender Treatment Program, or that as a part of that
program, he admit guilt or commission of the offenses for which
he was convicted pursuant to his Alford plea.
In conclusion, we hold that the sentence of a
mandatory post-incarceration, three-year period of conditional
discharge for sexual offenders as required by KRS 532.043 is not
unconstitutional as a violation of the separation of powers
doctrine.
In addition, the conditions of conditional discharge
challenged by Wilfong do not violate his constitutional due
process rights.
Finally, the condition that he successfully
complete the Sexual Offender Treatment Program is not
inconsistent with his Alford plea and does not violate his due
process rights.
For the foregoing reasons, the judgment of the Meade
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Frankfort, Kentucky
Albert B. Chandler III
Attorney General
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
32
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