State v Schad

4-24-2009 Kansas:

State v Schad
206 P.3d 22 (2009)

After pleading no contest to one count of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511, Leroy Schad was placed on 60 months' probation. The trial court imposed several probation conditions that included placing him under house arrest, forbidding him from grocery shopping, and ordering him to place sexual offender signs around his house and on his car. On appeal, Schad raises arguments relating to his probation conditions, the term of his probation, and the term of his underlying prison sentence. The State contends, however, that this court lacks jurisdiction to decide Schad's arguments under K.S.A. 21-4704b(f). We disagree with the State's contention and find that we have jurisdiction to address Schad's arguments.

First, Schad argues that the probation conditions requiring him to post signs around his house and on his car were invalid because they violated his right to privacy and his right against cruel and unusual punishment and because the trial court did not have the authority to impose the conditions. Nevertheless, when a valid alternative ground for relief exists, an appellate court need not reach the constitutional contentions of the parties. Because we reverse and remand to the trial court to sever these conditions from the order of probation on the basis that they violate our statutory scheme, it is unnecessary for us to address the constitutional law contentions.

... ... ...

The trial court also ordered Schad to place signs, with letters at least 4 inches tall, stating that a "sexual predator lives here" on all four sides of his property. Moreover, the trial court ordered Schad to put stickers similar to what "campaign people" use on both sides of his car that state "sexual predator." The trial court further ordered Schad not to have contact with any children under the age of 16, including his grandchildren.

After Schad filed his notice of appeal in this case, the State moved to revoke Schad's probation for failure to comply with the conditions of his probation. The State maintained that Schad had failed to contact the appropriate program to set up his house arrest and that he had not affixed the ordered signs on his property and on his car. Schad moved to advance the case for an immediate hearing on the State's allegation of a probation violation. Schad also moved the trial court to reconsider its probation order relating to the wording on the ordered signs. In addition, Schad asked the trial court to allow him a reasonable time to find out whether his family would be able to assist him with the costs of the house arrest program. Schad requested that if no financial help could be arranged, that the trial court reconsider whether ordering him to pay the cost of the house arrest program constituted cruel and unusual punishment. Attached to Schad's motion for reconsideration was an affidavit from Schad outlining his concerns about the probation conditions.

After holding a nonevidentiary hearing, the trial court granted the State's motion to revoke Schad's probation. The trial court modified the language in its earlier order and required Schad to place signs on his property stating that a "Sex Offender Lives Here" (instead of "sexual predator lives here") and on his car stating that "Sex Offender In This Car" (instead of "sexual predator"). In addition, the trial court reinstated Schad's probation with a few new conditions. The trial court imposed a new 5-year term of probation. Moreover, the trial court specified the dates by which Schad was required to comply with the probation conditions.

... ... ...

Summary of Disposition

In summary, we affirm Schad's underlying prison sentence. We remand the case to the trial court with instructions to do the following:

• (1) The trial court will sever the conditions of probation requiring Schad to post signs around his house and on his car.
• (2) The trial court will reconsider its order requiring Schad to serve 60 months of probation. It will clarify whether there were substantial and compelling reasons, as outlined in McKay, 271 Kan. at 728, 26 P.3d 58, to impose the 60-month term of probation. If the answer is yes, it will set out substantial and compelling reasons for deviating from the recommended 36-month term of probation. If the answer is no, it will be limited to imposing the recommended 36-month term of probation.
• (3) The trial court will reconsider the no grocery shopping condition of probation. It will sever the no grocery shopping condition unless it finds that grocery shopping was a nonessential activity for Schad. In all other respects, the conditions of probation will remain the same.

Affirmed in part, reversed in part, and remanded to the trial court with directions.