People v. Landis

497 P.3d 39

2021 COA 92

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Christopher David LANDIS, Defendant-Appellant.

Court of Appeals No. 17CA1449

Colorado Court of Appeals, Division IV.

Announced July 8, 2021

Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Furman and Pawar, JJ., concur

Opinion by JUDGE DAVIDSON^*

¶ 1 Defendant, Christopher David Landis, appeals his probationary sentence for attempted sexual assault on a child. He contends that the conditions of his probation restricting his use of the internet and social media violate (1) the governing Colorado statutory scheme and (2) his rights to free speech under the United States and Colorado Constitutions. While we fully acknowledge that, to date, the internet has become one of the most important places, if not the most important place, for people to exchange views and ideas, under the circumstances here, we disagree with both of Landis's contentions. Accordingly, we affirm.

I. Background

¶ 2 According to the affidavit of probable cause for arrest, Landis sexually assaulted his stepdaughter when she was ten years old. The evidence included his admission to police that he touched the victim's vagina and breasts.

¶ 3 The prosecution charged Landis with sexual assault on a child and sexual assault on a child by one in a position of trust. He pleaded guilty to an added count of attempted sexual assault on a child, and the original charges were dismissed. The parties stipulated to a sentence to probation.

¶ 4 At the sentencing hearing, the prosecutor agreed with the recommendation in the presentence investigation report that the district court sentence Landis to sex offender intensive supervision probation (SOISP) and require him to comply with (1) the standard "Additional Conditions of Probation for Adult Sex Offenders" (the standard conditions) and (2) the recommendations in the sex offense specific evaluation (SOSE).

¶ 5 However, Landis argued, among other things, that he should not be required to comply with the two standard conditions prohibiting use of the internet and social media without prior approval from his probation officer. He emphasized that he is required to use the internet in his ongoing employment at an electronics installation company. He also argued that the conditions violate his constitutional rights based on Packingham v. North Carolina , 582 U.S. ––––, 137 S. Ct. 1730, 198 L.Ed.2d 273 (2017) (invalidating statute creating new felony offense for violation of post-custodial restrictions on sex offender access to social media).

¶ 6 The district court sentenced Landis to seven years of SOISP. As for the two standard conditions restricting use of the internet and social media, the court required Landis to comply with those conditions but modified them to allow for such use required by his employment at the electronics installation company. Specifically, the modified conditions at issue read (with the modifications in bold typeface) as follows:

22. You shall not be allowed to subscribe to any internet service provider, by modem, LAN, DSL, or any other avenue (to include, but not limited to, satellite dishes, PDAs, electronic games, web televisions, internet appliances and cellular/digital telephones) and shall not be allowed to use another person's internet or use the internet through any venue until approved by the supervision team, with the exception of use through employment for [the electronics installation company] . When access has been approved (including access through [the electronics installation company]) , you agree to sign, and comply with, the conditions of the "Computer Use Agreement" – JDF321P. Additionally, you will allow your probation officer, or other person trained, to conduct searches of computers or other electronic devices used by you. This includes the computer usage during employment with [the electronics installation company]. The person conducting the search may include a non-judicial employee and you may be required to pay for such a search.

....

28. You shall not utilize, by any means, any social networking forums offering an interactive, user-submitted network of friends, personal profiles, blogs, chat rooms or other environment which allows for real-time interaction with others, except under circumstances approved in advance and in writing by the probation officer in consultation with the community supervision team. The only exception authorized by the Court at the time of sentencing was through employment with [the electronics installation company]. This exception does not preclude additional exceptions that may be authorized by the probation officer in consultation with the community supervision team.

II. Landis's Statutory Claim

¶ 7 Landis contends that the district court abused its discretion by imposing the probation conditions at issue because they are not reasonably related to his rehabilitation and the purposes of probation under section 18-1.3-204(2)(a)(XV), C.R.S. 2020. We disagree.

A. Applicable Law and Standard of Review

¶ 8 Probation is "a privilege, not a right."

People v. Smith , 2014 CO 10, ¶ 8, 318 P.3d 472. It is an alternative to prison and is intended to be rehabilitative. See § 18-1.3-104(1)(a), (b), C.R.S. 2020; Smith , ¶ 8. If an offender seeks a probationary sentence as an alternative to prison, he or she must accept the district court's conditions for probation. Smith , ¶ 8.

¶ 9 Section 18-1.3-204(2) lists the various conditions of probation that a district court may impose, which includes a catchall for "any other conditions reasonably related to the defendant's rehabilitation and the purposes of probation." § 18-1.3-204(2)(a)(XV).

¶ 10 The parties agree that the following five factors are relevant in determining whether the probation conditions at issue are reasonably related to Landis's rehabilitation and the purposes of probation: (1) whether the conditions are reasonably related to the underlying offense; (2) whether the conditions are punitive to the point of being unrelated to rehabilitation; (3) whether the conditions are unduly severe and restrictive; (4) whether the defendant may petition the court to lift the conditions temporarily when necessary; and (5) whether less restrictive means are available. See People v. Brockelman , 933 P.2d 1315, 1319 (Colo. 1997).

¶ 11 "[A district] court has broad discretion to impose whatever [probation] conditions it considers appropriate" in any given case. Smith , ¶ 9 ; see also § 18-1.3-202(1)(a), C.R.S. 2020 (A district court may grant a defendant probation "upon such terms and conditions as it deems best."); § 18-1.3-204(1)(a) ("The conditions of probation shall be such as the court in its discretion deems reasonably necessary.").

¶ 12 We review the district court's decision for an abuse of discretion. See Brockelman , 933 P.2d at 1319 ("[T]he applicable standard of review ... requires an abuse of discretion by the trial court to occasion any modification of the trial court's [conditions of probation]."); cf. People v. Cooley , 2020 COA 101, ¶ 26, 469 P.3d 1219 ("We consider de novo whether a probation condition is constitutional or statutorily authorized .") (emphasis added).

B. Brockelman Factors

¶ 13 We conclude from our evaluation of the five Brockelman factors that the probation conditions at issue restricting Landis's use of the internet and social media are reasonably related to his rehabilitation and the purposes of probation.

¶ 14 First, the conditions are reasonably related to Landis's underlying offense. To be sure, Landis did not use the internet in attempting to sexually assault his stepdaughter. However, he engaged in sexual conduct with a child, and it was reasonable to place restrictions on Landis's use of a medium that easily can be used to facilitate contact with children. See United States v. Edwards , 813 F.3d 953, 969 n.11 (10th Cir. 2015) ("Computers and internet connections have been characterized elsewhere as tools of the trade for those who sexually prey on children." (quoting United States v. Colbert , 605 F.3d 573, 578 (8th Cir. 2010) )); United States v. Robertson , 350 F.3d 1109, 1113 (10th Cir. 2003) ("[C]yberspace provides an increasingly common and effective medium by which would-be sexual predators can contact minors."); see also People v. Crabtree , 395 Ill.Dec. 86, 37 N.E.3d 922, 927 (Ill. App. Ct. 2015) ("[A]lthough [the] defendant's crime did not include use of a computer or a social networking website, it involved the sexual abuse of a young girl. Thus, the conditions of probation [restricting his use of a computer] appear reasonably related to the goals of deterrence, protection of the public, and rehabilitation of [the] defendant."); McVey v. State , 863 N.E.2d 434, 450 (Ind. Ct. App. 2007) (where the defendant was convicted of child molesting, the court held that a probation condition restricting his internet access was reasonable — despite the fact that his offense did not involve the use of a computer — because "accessing prohibited material is easily accomplished with a computer, and for that reason computer access would provide a temptation of such a magnitude that exposure to it would not be in the best interest of [the defendant's] rehabilitation. This is so because the internet defies boundaries and offers unlimited access to people, including children.") (citation omitted).

¶ 15 Notably, according to the SOSE, objective testing indicated that Landis's highest sexual interest is toward juvenile females. It also concluded that he was in high denial regarding his offense. The SOSE recommended that he be "monitored carefully while in the community" and "not have contact with [the victim] or with anyone younger than 18." See People v. Devorss , 277 P.3d 829, 837 (Colo. App. 2011) (...