State v. Maack

270 Or.App. 400

348 P.3d 265

STATE of Oregon, Plaintiff–Respondent

v.Jonathan Jerad Everett MAACK, Defendant–Appellant.

CR0200769

A151852.

Court of Appeals of Oregon.

Argued and Submitted May 27, 2014.

Decided April 15, 2015.

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and MOONEY, Judge pro tempore.

Opinion

HADLOCK, J.

In 2002, defendant pleaded guilty to three felony sex crimes. He received downward departure sentences of 10 years of probation on two of those convictions and five years of probation on the third, with all of those probationary terms to be served concurrently. In 2012, the trial court revoked defendant's probation on one of those convictions for having violated a probation condition that prohibited him from using the Internet. On appeal from the judgment revoking his probation, defendant argues that the Internet ban was an invalid probation condition and, therefore, the trial court erred when it revoked his probation for having violated that condition. We review both the “imposition of probation conditions” and a trial court's revocation of probation “for errors of law.” State v. Gaskill, 250 Or.App. 100, 101, 279 P.3d 275 (2012) (conditions); State v. Miller, 224 Or.App. 642, 644, 199 P.3d 329 (2008) (revocation). We conclude that defendant has not established that the trial court erred. Accordingly, we affirm.

Except as noted below, the pertinent facts are undisputed. When defendant was 14 or 15 years old, he committed crimes against a girl who was about 10 years old and who lived in the same household as defendant. The prosecutor represented at the probation-revocation hearing, without contradiction, that defendant had engaged in sexual acts with the victim about 50 times, sometimes paying her money. Defendant was charged with eight crimes, including rape, sodomy, unlawful sexual penetration, and multiple counts of sexual abuse. He pleaded guilty to attempted first-degree sodomy (Count 2), attempted first-degree unlawful sexual penetration (Count 3), and attempted first-degree sexual abuse (Count 4), and the remaining charges were dismissed.

The sentencing court imposed the probationary sentences described above, after finding, among other things, that treatment was likely to be more effective than incarceration in “reducing offender recidivism” and that the probationary sentences would “serve community safety interests by promoting offender reformation.” As a special condition of probation, the court imposed the “sex offender package,” which, among other things, (1) prohibited defendant from having any contact with minors without prior approval from his probation officer, (2) prohibited defendant from using or possessing any form of pornography (including “computer-based pictures”), and (3) required defendant to “[c]onsent to, and cooperate with, any plan deemed necessary by probation officer and/or therapists to maintain and monitor offense-free behavior for the duration of the probation.” The court also ordered defendant to complete a residential and day-treatment program, as well as individual and group counseling.

Defendant entered the required residential and day-treatment program in late 2002 and was discharged after successfully completing the program in mid–2004. He transitioned back to a public high school to complete his senior year after “[b]oundaries, rules, and expectations were set regarding restrictions of contact with minors” (he was permitted to contact 16– and 17–year–old minors while at school, but not elsewhere). In October 2004, defendant missed several days of school after he drank a large quantity of vodka. Later that year, after defendant had missed about one-third of his scheduled classes, he was told that he would need to take classes at a community college to earn his high-school diploma. Thereafter, defendant's probation officers reported numerous probation violations. His probation officer recommended against probation revocation, but reported the violation to keep the court apprised of defendant's progress and “the work that still needs to be done.” Although defendant's consumption of vodka had violated the probation condition that defendant obey all laws, the probation officer recommended that a condition be added explicitly prohibiting alcohol consumption. That “no alcohol” condition was soon added.

Defendant violated his probation several times in 2005. In June, his probation officer reported that defendant had attended a barbecue where children were present. Defendant had also admitted viewing pornographic websites on his father's computer, on which over 900 pornographic images had been found. Defendant's probation officer recommended that he be sanctioned and required to perform community service work. Defendant also attended a movie theater where children were present. He “admitted to frequenting sound sites on the Internet that contain sexually explosive sounds” and had tried to “pick up girlfriends” in online chat rooms. In addition, defendant admitted to continued fantasies about the victim and to being attracted to pornographic websites. Defendant was referred for further treatment in August 2005.

In 2006, when defendant was 19 or 20 years old, he had a sexual relationship with a person who was only 17 years old, but who had shown defendant false identification and had misled him about her age. That same year, defendant entered into an “Internet-use contract” with his treatment provider, in which he agreed “to maintain blockers” and not to use MySpace, a social networking site. In 2008, defendant received another sanction for missing an appointment with his probation officer.

Defendant continued to violate his probation conditions in the year or so preceding imposition of the Internet ban. In early 2009, defendant received a structured sanction for changing his address and being untruthful. Defendant reported to his probation officer that he had moved back in with his former roommates because he could no longer stay with his father. When his probation officer performed a home visit, his roommates reported that they had not seen him in three weeks and that defendant had only slept on their couch occasionally before that. They stated that they believed that defendant was staying with his girlfriend. Defendant's probation officer reported, at that time, that defendant's “level of conformance over the past year has been marginal. It has been unclear where [defendant] has been residing for the majority of that time as [his probation officer] has never been able to contact him at any of the addresses or locations that he lists as his residence.” Additionally, defendant was over $2,000 behind on his supervision fees, even though he had been “given the opportunity to do community service work to help payoff part of that amount.” After being shown a copy of the violation report, defendant admitted that he had been staying with his girlfriend for two weeks after reporting a different address to his probation officer.

From late 2009 through early 2010, defendant had a sexual relationship with another 17–year–old female who had showed him false identification. Although the two met in person, they also communicated online through social networking sites during their relationship.

At some point in 2009 or 2010, defendant was assigned a new probation officer, Nagel. During Nagel's second meeting with defendant (in February 2010), he told defendant orally that he could no longer use the Internet.¹ Nagel explained at the revocation hearing that several factors had contributed to his decision to prohibit defendant from using the Internet. When he first reviewed defendant's case, Nagel was startled by defendant's “extensive record when it came to Internet pornography.” He viewed defendant's history of Internet use as indicating a “sexual preoccupation” that “increas[ed] his risk to re-offend.” Nagel explained that defendant had been moving out of his father's house and into a different residence with roommates who all had computers to which defendant might have access. Nagel also was concerned by defendant's very recent relationship with a female who was only 17 years old, whom defendant had met in person, but with whom he also communicated on a social networking site. He explained that, if defendant “couldn't go ahead and determine how old she was not using the Internet, he certainly wasn't going to be able to get any better at * * * that using the Internet.” As Nagel put it in a May 2012 report: “In summary, since a person's age can't be verified over the Internet, further social networking activity was suspended indefinitely.” Nagel decided to impose a complete ban on Internet use because he “didn't want anything—anything whatsoever—to come and muddy up any of his polygraphs, and because of the—the previous issues with the Internet.” He further explained that, because defendant had been sanctioned for using the Internet inappropriately, and because Nagel “want[ed] him to successfully complete” probation, it was “very standard” for him “at that point” to ban all Internet use.

In March 2012, Nagel learned that defendant had contacted an adult woman by using his roommate's Facebook account. The woman described the contact as unwanted and asked defendant not to contact her again. The next month, Nagel learned that defendant was accessing Facebook with his own account that had been set up using a false name. Although defendant initially denied having a Facebook account when Nagel confronted him about it, he later admitted that he had a friend set up the account for him. He also admitted that he had accessed the Internet on his...