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COA upholds severe restrictions on internet use during supervised release

State v. Peter J. King, 2020 WI App 66;  case activity (including briefs)

Packingham v. North Carolina, 137 S Ct. 1730 (2017) struck down a law making it a felony for a registered sex offender to use any social networking site that permits minors to become members or to create personal web page. The statute was so broad that it violated the 1st Amendment. See our post here. In this case, the court of appeals holds that Packingham’s reasoning does not apply to court-ordered conditions of extended supervision that sharply restrict a defendant’s access to the internet. 

In 2005 King was convicted of using a computer of facilitate a child sex crime and of child enticement. He received a bifurcated sentence for the first conviction, which included restrictions on his use of the internet during extended supervision. He repeatedly violated the restrictions, and was repeatedly revoked. After completing extended supervision, he began serving a 10-year period of probation for the 2nd conviction, which  also included internet restrictions. He violated those too.

At his probation revocation sentencing hearing in 2018, the circuit court imposed a new bifurcated sentence with new internet restrictions for the extended supervision portion. King filed a postconviction motion citing Packingham, which caused the circuit court to modify those restrictions. Basically, King could possess a device capable of accessing the internet and access the internet, but only with the approval of his DOC agent and only if he provided his agent required information. Opinion, ¶15.

The main reason King’s appeal failed is that the statute at issue in Packingham applied to all sex offenders–even those who had finished serving their sentences. According to the court of appeals, Packingham’s reasoning does not apply whether the defendant is still serving his sentence. And it does not govern conditions of supervised release.  To prove the point, the court of appeals cited a long list of cases to this effect from all around the county. Opinion, ¶38.

Next, the court of appeals objected to King’s argument that the restrictions imposed in his case amounted to a “blanket ban” on his access to the internet. Again, citing numerous cases, the court of appeals held that requiring a supervisor’s approval to use the internet is a “partial deprivation,” not a “blanket ban.” Opinion, ¶52.

In fact, held the court of appeals, the conditions imposed upon King were similar to those approved in other cases where defendant were required to obtain agent approval before exercising constitutional rights. See e.g. Krebs v. Schwarz, 212 Wis. 2d 127, 568 N.W.2d 26 (Ct. App. 1997)(defendant barred from entering intimate relationship with a woman without agent’s prior approval); State v. Miller, 175 Wis. 2d 204, 208, 499 N.W.2d 215 (Ct. App. 1993) (defendant barred from calling women unrelated to him without agent’s permission).

Due to King’s history of using computers to facilitate child sex crimes, the court of appeals did not consider the imposed restrictions overly broad for his particular situation. Opinion, ¶¶58-71.

Finally, the court of appeals rejected King’s new factor based claim for sentence modification because, as noted above, Packingham does not apply to conditions of supervised release. In any case, the circuit court did consider its premise when fashioning King’s condition. Opinion, ¶¶79-82.


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