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Mootness Doctrine – Generally ; Probation – Conditions – No-Contact Order

State v. Matthew O. Roach, 2011AP2105-CR, District 4, 5/17/12

court of appeals decision (1-judge, not for publication); for Roach: Brandon Kuhl; case activity

Mootness Doctrine – Generally 

¶8 n. 2:

The State also contends that this issue is moot because the condition of probation Roach challenges expired on January 19, 2012.  An issue is moot when its resolution will have no practical effect on the underlying controversy.  Warren v. Link Farms, Inc., 123 Wis. 2d 485, 487, 368 N.W.2d 688 (Ct. App. 1985). Subject to certain exceptions, we generally do not address moot issues.  Id.  However, we will consider a moot issue when the issue is likely to be repeated but evades appellate review.  State ex. rel Unnamed Person No. 1 v. State, 2003 WI 30, ¶19, 260 Wis. 2d 653, 660 N.W.2d 260.  The imposition of a one-year no-contact provision as a condition of probation is such an issue.  Accordingly, we address Roach’s contention.

Probation – Conditions – No-Contact Order 

On conviction for various violent offenses occurring in and around the house Roach shared with his mother and stepfather, the trial court properly exercised discretion in ordering, as a condition of probation, that Roach have no contact with his mother or stepfather. State v. Campbell, 2011 WI App 18, ¶23, 331 Wis. 2d 91, 794 N.W.2d 276 (§ 973.049(2) allows sentencing court to determine who is, and to impose no-contact order as to, a “victim” of “a crime considered at sentencing”), applied.

¶11      Roach contends that the circuit court erroneously exercised its discretion because the court imposed the no-contact provision in the interest of rehabilitating Roach, not in the interest of public protection as required by § 973.049(2).  However, we conclude the record does not support Roach’s assertion.

¶12      At the plea and sentencing hearing, the circuit court indicated that Roach’s behavior for which he was being sentenced was dangerous.  For example, the circuit court stated to the defendant:  “You choked [your girlfriend].  You picked her up off the ground by the neck….  People die from that.”  The court also found that Roach refused to accept responsibility for his actions, which led him to continue to violate the law.  The court explained that the no-contact provision was being imposed to prevent Roach’s behavior from continuing by requiring him to take responsibility for his actions and to not rely on his mother and stepfather for support.  Specifically, the court stated: “[I]t is my intent by the no-contact provision to put a stick in the spokes of that machine that has been rolling forward without any relief.”  We conclude it was not an erroneous exercise of the court to conclude that putting a stop to repeated dangerous behavior by encouraging Roach to take responsibility for his actions is in the interest of public protection, and that issuing the no-contact provision was a reasonable way to meet this goal.

Section 973.049(2) expressly conditions a no-contact order on “public protection.” The logic here seems to be: Roach’s dependence on his parents enables his recidivism; self-reliance inhibits recidivism; therefore, barring  parental contact protects the public by encouraging Roach’s self-reliance. Sounds like “tough love,” doesn’t it? Whatever the label, the result appears to broaden “public protection” so as to render it more or less meaningless. You can dress up most anything to make it seem rehabilitative, which in turn means that most anything can be deemed in the interest of “public protection.” (Roach’s court-ordered eviction will wondrously transform him into a mature adult, and his maturation protects the “public.”) This isn’t to say Roach’s relationship with his parents was (or wasn’t) highly dysfunctional; or that it wasn’t indeed in his or their best interest to sever ties for awhile, or even forever. Who knows? But it is to say that the justification for no-contact orders now operates at an alarming level of generality; that it has slipped the mooring to “public protection.”

Note that the mother and stepfather apparently were not nominal victims of these crimes, and that the statute limits no-contact orders to “victims of … a crime considered at sentencing.” That condition isn’t as absolute as it seems: “However, it does not state that only the crimes considered at sentencing can be taken into account when the court determines whether to impose a contact restriction. … (¶) … Here, the factual basis of the crimes for which Roach was sentenced involved Roach pushing his mother and stepfather and placing his stepfather in a headlock.  It was within the circuit court’s discretion to conclude that his mother and stepfather were victims,” ¶¶13-14. Seemingly, then, Roach might have been guilty of some offense against each of his parents; but he was neither charged with nor convicted of same. All that can be said with certainty is that the sentencing court has “discretion” to determine who is a “victim” for purposes of a no-contact order. What factors, or limits, inform that exercise is quite unclear. What is clear is the need for the practitioner to anticipate and counsel clients about far-ranging implications that simply did not exist a few short years ago. The disposition here, for example, left Roach out in the streets, cut off from parental contact. It might be that a court would term this a “collateral,” rather than “direct” consequence of the plea – a consequence, that is, that Roach need not have known for his plea to have been constitutionally valid; though an argument could be made to the contrary – but isn’t it better practice to warn the defendant of such a possibility? Just one more item in an ever-burgeoning list.

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