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Defendant’s banishment from Amish area held constitutional

State v. Brandin L. McConochie, 2019AP2149-CR, District 2, 4/22/20 (1-judge opinion, ineligible for publication); case activity (including briefs)

McConochie pulled his vehicle alongside Amish buggies and exposed his genitals to the occupants within. He pled no contest to 3 counts of lewd and lascivious behavior as a repeater. As a condition of probation, the court banished him a delineated area where Amish live. McConochie argued that banishment violated his constitutional right to travel.

McConochie argued that the banishment area precluded his from: (1) visiting his father’s grave, (2) living in his stepfather’s home, or (2) living in a home that his mother was willing to him upon her death. He cited State v. Stewart, 2006 WI App 67, ¶11, 291 Wis. 2d 480, 713 N.W.2d 165, where the court held that banishment from the entire Richmond Township was overly broad when the defendant’s criminal conduct was aimed only at his family and neighbors.

The court of appeals distinguished Stewart, where the defendant targeted specific individuals not the entire Richmond Township community.

¶8 Here, the no-contact order with the Amish community alone is not a sufficient protection for McConochie’s victims because, as the State explained, “the crimes were opportunistic and targeted toward any unfortunate occupant of an Amish buggy.” McConochie’s crimes took place along the roadway within the Amish community as he came upon an Amish buggy, not at a specific location or with specific individuals as in Stewart. A simple no-contact order would be ineffective under the circumstances of McConochie’s crime. We agree with the State that “[t]o permit McConochie to travel within the area of the Amish community would be to set up the exact conditions allowing him to engage in identical criminal conduct in the future.” See Predick, 260 Wis. 2d 323, ¶21 (explaining that the defendant’s banishment from Walworth County was appropriate as “[a]n area smaller than the county would provide her with too man opportunities to meet up with her victims”). The court noted, and we agree, that it imposed the banishment for McConochie’s rehabilitation in its discretion so as to ensure that he would not be in the area or community in which he engaged in his lewd and lascivious behavior.

The court of appeals had no sympathy for McConochie’s need to be in the banishment area. If he wanted to visit his father’s grave, he could have rejected probation. Also, his possible future living arrangements were “too speculative” to impact its analysis of whether the banishment area was overly broad and reasonably related to his rehabilitation. Opinion, ¶11.

We don’t see a lot of these case but here’s another one from 11 years years ago.

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