USA v Cheever

7-18-2016 Colorado:

USA v Cheever

JOHN L. KANE, Senior District Judge.

This matter is before me for sentencing on Defendant Shawn Cheever's plea to a single count of possession of child pornography. I have heard the presentations of counsel, and Mr. Cheever has been afforded his right of allocution. Because the question of a condign sentence in this case, and in cases involving plea deals negotiated in rigid adherence to non-binding Sentencing Guidelines generally, raises sentencing issues about which I have thought long and hard, I take time to address them in the following written opinion.

... ... ...

Conclusion.

It is argued at various places in the vast literature on this subject I have reviewed that the value of the plethysmograph is not to condemn or to judge, but rather to facilitate the evaluation and therapy undertaken by nudging the subject along to admit his defect of character — a sort of plaintive admonition that confession is good for the soul and overcomes the resistance to therapy that is manifested in denial. Such admission is regarded as one of the first steps toward a rehabilitative state of refrain and abstinence. Perhaps it should be considered a shortcut in therapy. (One can only surmise that a relapse after treatment would exacerbate the perversion because it occurs in spite of the therapy generated by the conscious admission.)

The Court of Appeals for the Second Circuit held in United States v. McLaurin, 731 F.3d 258, 260 (2013) that a condition of defendant's supervised release that required him to take penile plethysmograph testing was an "extraordinary invasive condition [that is] unjustified, is not reasonable related to the statutory goals of sentencing, and violates McLaurin's right to substantive due process."

The special condition requiring Cheever to submit to plethysmograph testing is specifically rejected. So, too, until such time as I am presented by the government with proof that the polygraph and the visual reaction time measurement device will meet the goals of supervised release as applied to a particular defendant, that such testing will involve no greater deprivation of liberty than is necessary for the particularized supervised release of an individual defendant and that there are no alternative measures, techniques or devices available that are any less intrusive to freedom of thought, they, too, are rejected.

People v. Gerber

6-8-2011 California:

People v. Gerber
196 Cal.App.4th 368 (2011)

Defendant Joseph Lowell Gerber appeals from a judgment of conviction of possession of child pornography (Pen. Code, § 311.11, subd. (a))1 (count one), annoying or molesting a child (§ 647.6, subd. (a)) (count two), furnishing marijuana to a minor under 14 years of age (Health & Saf. Code, § 11361, subd. (a)) (count three), and two counts of furnishing a controlled substance to a minor (Health & Saf. Code, § 11353) (counts four and five).

On appeal, defendant challenges the sufficiency of the evidence to support the conviction of possession of child pornography (§ 311.11) and raises claims of ineffective assistance of counsel and instructional error. In addition, he asserts that the trial court lacked authority to make its no-contact order.

We hold that the phrase "the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct ..." in section 311.11 requires a real child to have actually engaged in or simulated the [196 Cal.App.4th 372] sexual conduct depicted.

We reverse the conviction of possession of child pornography in violation of section 311.11 based on the insufficiency of the evidence (count one) and we reverse the convictions of furnishing a controlled substance to a minor in violation of Health and Safety Code section 11353 (counts four and five) based on instructional error.

We also strike the no-contact order.

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E. No-contact Order

At sentencing, the trial court ordered defendant to have no contact with the victim or her family. Defendant argues that the order is invalid because it was not authorized by section 1202.05 or any other statute. Defendant was not convicted of any of the sex offenses enumerated by section 1202.05, which presently authorizes courts to prohibit visitation between a defendant sentenced to state prison and the child victim. The People concede error and ask this court to strike the order. We agree this is the appropriate remedy.

Simants v State

7-3-2014 Alaska:

Simants v State

Carrie D. Simants was thirty-three years old when she had sexual intercourse with R.H., a seventeen-year-old boy who was living in her home. At the time, R.H. had been adjudicated a delinquent, and Simants had agreed to oversee his compliance with his delinquency case plan. A jury therefore found that Simants was in a "position of authority" over R.H. and convicted her of one count of second-degree sexual abuse of a minor.1 Simants was sentenced to 8 years with 3 years suspended (5 years to serve) and 10 years' probation for this offense.

On appeal, Simants challenges her sentence on three grounds. She asserts that the superior court erred by rejecting the two statutory mitigating factors she proposed at sentencing. She argues, in the alternative, that the court should have referred her case to the statewide three-judge sentencing panel for consideration of a sentence below the applicable presumptive range. Lastly, she challenges a condition of probation that could potentially preclude her from living with her own children after her release.

For the reasons explained below, we conclude that the superior court applied the wrong legal analyses when it rejected the two statutory mitigating factors and imposed the challenged probation condition.

Accordingly, we vacate the probation condition and remand this case to the superior court for further proceedings consistent with this opinion. Because Simants may be resentenced, we do not reach the merits of her three-judge sentencing panel arguments at this time.

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Conclusion

We VACATE the special condition of probation limiting Simants from residing in a home where a minor is present to the extent that the condition bars her from living with her own children. If the State wishes to renew its request for a probation condition that restricts Simants's contact with her children, the State must affirmatively show

(1) that there is good reason to believe Simants will pose a danger to her children when she is released from prison, and

(2) that the State's proposed condition of probation is narrowly tailored to avoid unnecessary interference with Simants's relationship with her children.

We retain jurisdiction.

State v Cobler

3-24-2010 Idaho:

State v Cobler
229 P.3d 374 (2010)

Brian C. Cobler appeals from the judgment of conviction and sentence entered upon his guilty plea to sexual battery of a minor, sixteen or seventeen years of age. He challenges the sentence, the denial of his Idaho Criminal Rule 35 motion for reduction of the sentence, and the order denying his motion to modify a no contact order that prohibited contact with any minors.

The order denying the motion to modify the no contact order is vacated and the case is remanded for further proceedings on that issue.

... ... ...

We affirm the judgment of conviction and sentence, as well as the district court's denial of Cobler's Rule 35 motion. Because the district court abused its discretion in denying Cobler's motion to modify the no contact order, we vacate the district court's denial of that motion and remand the case for proceedings consistent with this opinion.2

Doe v. Annucci

6-18-15 New York:

Doe v. Annucci
No. 14 Civ. 2953 (PAE).

Plaintiff John Doe was convicted of sexual offenses against a teenage girl and served more than eight years in prison. After Doe was released on parole, Doe's wife, Jane Doe, gave birth to a son, M.S. In the years that followed, the Department of Corrections and Community Supervision ("DOCCS") applied one of Doe's special parole conditions to bar him, during two distinct time periods, from having any contact with his infant son. These periods totaled more than one year.

John Doe, Jane Doe, and M.S. bring suit against eight state personnel associated with DOCCS, claiming that DOCCS's actions violated their rights to substantive due process, intimate association, and procedural due process, and that each individual defendant personally participated in these actions. Seven of the eight defendants now move to dismiss, asserting mootness, immunity, and failure to state a claim.

For the following reasons, the motions to dismiss are granted as to defendants Rebecca and Rennie Rodriguez for lack of personal involvement in the alleged constitutional violations, but are denied as to all other defendants.

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US v Burns

12-30-2014 Oklahoma:

US -v- Burns
775 F.3d 1221 (2014)

Mr. James Burns was convicted of possession and attempted possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B), (b)(2). He was sentenced to 63 months in prison, followed by 5 years of supervised release. This appeal involves one of the conditions of his supervised release. That condition requires approval of the probation department before Mr. Burns can have any contact with minors, including his youngest daughter (S.B.).

This restriction intrudes on Mr. Burns's constitutional right to familial association. Because of this intrusion on a constitutional right, the district court should have made particularized findings before restricting Mr. Burns's contact with his daughter. Because the district court failed to make these findings, we reverse on plain error.1

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II. Conclusion

The district court committed plain error by restricting Mr. Burns's contact with his daughter without the required findings. Thus, we remand for reconsideration of the supervised-release condition requiring Mr. Burns to obtain permission from the probation office before he can contact S.B.

USA v James

2-13-15 Arkansas:

USA v James

Edwin James appeals his sentence of lifetime supervised release and certain conditions of supervised release imposed by the district court after James pleaded guilty to failing to register as a sex offender, in violation of 18 U.S.C. § 2250, as is required by the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901-16991. We affirm in part and reverse in part.

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Court reversed on Special Condition 6
First, we address Special Condition 6, which states that "[t]he defendant shall have no access to the internet, or any device capable of accessing the internet to include a computer and/or cell phone without the permission of the probation officer.

" There is no evidence in the PSR or any other source in the record of James ever using the internet, much less using the internet for unlawful purposes. See United States v. Springston, 650 F.3d 1153, 1156 (8th Cir. 2011) (vacating a restriction on internet access because "[t]he record . . . is devoid of evidence that [the defendant] has ever used a computer for any purpose") vacated on other grounds, Springston v. United States, 132 S.Ct. 1905 (2012); United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005) (vacating a restriction on computer use and internet access because "the record is devoid of evidence that [the defendant] has ever used his computer for anything beyond simply possessing child pornography").

The government concedes that this special condition should be vacated, and we agree.

USA v Del Valle-Cruz

4-6-15 Puerto Rico, Oklahoma, Florida:

USA v Del Valle-Cruz

Defendant Carlos Manuel Del Valle-Cruz ("Del Valle-Cruz") was sentenced to twenty-one months in prison and seven years of supervised release after pleading guilty to one count of failing to register as a sex offender.

By our count, this is the third time Del Valle-Cruz has been convicted of failing to register since his 1997 sex offense conviction. As troubling as that is, we note that he has not been charged with any other sex offenses in the intervening eighteen years.

The terms of Del Valle-Cruz's supervised release include a series of special conditions that prohibit him from contact with minors and require him to undergo sex offender treatment — terms that were not imposed as part of his sentence for the underlying sex offense. Moreover, these conditions were imposed in a boilerplate fashion, devoid of any explanation by the district court.

Del Valle-Cruz now seeks to vacate his conviction or, failing that, the aforementioned special conditions. A waiver of appeal bars Del Valle-Cruz's appeal of his conviction, as well as his appeal of most of the special conditions. NOTE: There is a large section within decision that explains this more fully, and includes the Oklahoma case of Starkey.

However, as to his appeal of the conditions that would interfere with his relationship with his son, to avoid a miscarriage of justice, we decline to enforce the waiver and instead vacate those conditions that would prevent Del Valle-Cruz from contact with, or residing with minors.

We will remand for de novo resentencing with respect to the supervised release term, so that the district court can consider the supervised release conditions as a whole and in light of intervening precedent.

Upon remand for further proceedings on the special conditions, we invite the district court to revisit the conditions and to explain their justification in this case.

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Conclusion

We dismiss Del Valle-Cruz's appeal of his conviction, as well as the conditions imposing sex offender treatment, and prohibiting working with or volunteering with minors.

We vacate conditions 13 and 15, and we remand to the district court for re-sentencing consistent with this opinion.

The re-sentencing shall be limited to the terms of supervised release, and at that time, given the concerns we have expressed herein, the district court may revisit all of the special conditions. United States v. Francois, 715 F.3d 21, 34 (1st Cir. 2013) ("[P]recedent in this Circuit establishes that `an appellate ruling invalidating a sentence . . . may implicate the trial judge's comprehensive, interdependent imposition of a penalty and thus require resentencing on all counts.'" (quoting United States v. Melvin, 27 F.3d 710, 712 (1st Cir. 1994))). At resentencing the district court should explain its reasons for the imposition of conditions and provide factual findings supported by the record.

US v Thompson

1-13-15 7th Cir.:

US v Thompson

We have consolidated for decision four appeals, heard on the same day, that present issues relating to supervised release. In a recent opinion, United States v. Siegel, 753 F.3d 705 (7th Cir.2014), the court expressed concern with how the district courts of our circuit are administering supervised release.

To recapitulate briefly the fuller discussion in the Siegel opinion, the Sentencing Reform Act of 1984 replaced parole for federal crimes with supervised release (to take effect in 1987). 18 U.S.C. § 3583.

Parole of federal convicts is granted (though nowadays only in a very limited class of cases, see United States Parole Commission, Wikipedia, http:// en.wikipedia.org/wiki/United_States_Parole _Commission (visited Jan. 11, 2014, as was the other website cited in this opinion)) by an administrative agency after a convicted defendant begins serving his sentence.

An inmate granted parole is thus released from prison before the expiration of his term, but becomes subject to restrictions imposed by the agency on his conduct between his release and when, had he not been paroled, he would have been released upon the expiration of his prison sentence. The restrictions are intended to reduce the likelihood of his committing crimes in the future.

People v Rebulloza

3-2-15 California:

People v Rebulloza

Defendant Juan Jose Rebulloza pleaded no contest to one count of indecent exposure for exposing himself on a street corner in San José. The trial court granted a three-year term of probation to include one year in county jail as a condition of probation.

Among other conditions, the court ordered defendant to complete a sex offender management program as mandated by Penal Code section 1203.067. Under subdivisions (b)(3) and (b)(4) of that statute, the court ordered defendant to “waive any privilege against self-incrimination and participate in polygraph examinations which shall be part of the sex offender management program” and “waive any psychotherapist/patient privilege to enable communication between the sex offender management professional and the probation officer.”

Defendant challenges the constitutionality of these two waivers.1

First, we hold that the condition requiring a waiver of the privilege against self-incrimination is prohibited by the Fifth Amendment under Minnesota v. Murphy (1984) 465 U.S. 420 (Murphy).

Second, we construe the waiver of the psychotherapist-patient privilege as requiring waiver only insofar as necessary to enable communication between the probation officer and the psychotherapist.

We hold that the waiver of the psychotherapist-patient privilege as construed in this fashion is not overbroad in violation of defendant’s constitutional right to privacy.

...

US v Dunn

2-10-2015 Utah:

US v Dunn

Defendant-appellant Michael Dunn was convicted of possessing child pornography, receiving child pornography and distribution of child pornography. Defendant received a 144-month sentence for these convictions, followed by a 25-year term of supervised release.

The district court imposed certain special conditions of the release (including restrictions on defendant's ability to access computers and the internet), and ordered payment of restitution. Defendant raised several arguments on appeal:

• (1) the court erred in instructing the jury, relieving the government of its burden to prove he "distributed" pornography;
• (2) his convictions for receipt and possession were multiplicitous and violated Double Jeopardy;
• (3) the special conditions of his supervised release limiting his access to computers and the Internet were not supported by necessary findings of fact; and
• (4) the district court applied an incorrect legal standard with regard to restitution (affecting the total amount owed).

After review, the Tenth Circuit agreed that the special conditions imposed on release were not supported by necessary findings of fact. The Court also agreed that an incorrect legal standard was used in calculating restitution.

On those grounds the Court reversed and remanded for further proceedings; the Court affirmed the district court's judgment in all other respects.

USA -v- Fernandez

1-15-2015 Louisiana:

USA -v- Fernandez

In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”.

At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child).

....

In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet.

Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.

Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”.

In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.

For the foregoing reasons, the special condition requiring software installation is VACATED; this matter is REMANDED for entry of the corrected judgment.

USA -v- Collins

12-9-2014 West Virginia:

USA -v- Collins

Dwaine Allen Collins was convicted of knowingly failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). The district court sentenced Collins to 30 months’ imprisonment and ten years of supervised release. On this direct appeal, Collins contests his conviction primarily on the grounds that the government failed to prove an essential element of a SORNA violation: that he knew he had an obligation to register.

In support, he points to comments made by a state court judge in a separate proceeding, which in Collins’s view suggest that his obligation to register had expired. We agree with the district court, however, that the state judge appeared to be giving advice rather than a binding legal opinion. Moreover, there is substantial evidence in the record to support the district court’s conclusion that Collins knowingly avoided an obligation to register as a sex offender. We thus find Collins’s claim unpersuasive and affirm his conviction.

Collins also appeals his sentence. We find his 30-month term of imprisonment, which is within the applicable Guidelines range, to be reasonable and thus affirm the district court’s sentence in that respect. As to the term of supervised release, however, the United States Sentencing Commission recently issued a clarifying amendment stating that a failure to register under SORNA is not a “sex offense” for the purposes of the Guidelines. Consequently, we vacate the supervised release portion of Collins’s sentence and remand for further proceedings.

... ... ... ...

For the reasons provided above, we affirm Collins’s conviction and his term of imprisonment, and remand for further proceedings consistent with this opinion as to his term of supervised release.

US v Bear

This is an excellent instructive case as to when a special condition restricting access to one's own children is appropriate and when it is not appropriate. Mr Bear's circumstances show NO REASON to restrict him from his own children; court agrees. Unfortunately his loses on his other issues.

10-31-2014 Iowa:

US v Bear

Defendant, Wesley A. Bear, pled guilty to one count of failing to register or update a registration as a sex offender in violation of 18 U.S.C. § 2250. At sentencing, the district court imposed certain special sex offender conditions of supervised release in addition to its standard conditions of supervised release.

Mr. Bear objected to the conditions restricting his contact with children and requiring him to submit to sex offender mental health assessment and treatment. The district court overruled his objections, and Mr. Bear now appeals.

This case requires us to resolve three disputes. First, Mr. Bear argues it was an abuse of discretion for the district court to impose sex offender conditions where his conviction of the prior sex offense occurred twelve years before this conviction.

Second, Mr. Bear contends the conditions involve a greater deprivation of liberty than reasonably necessary to achieve the purposes of sentencing.

Third, Mr. Bear claims the special conditions are not consistent with pertinent policy statements issued by the Sentencing Commission.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part, VACATE in part, and REMAND to the district court for further proceedings consistent with this opinion.

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1. Restrictions on Mr. Bear's Contact with Children

Mr. Bear argues the restrictions on his contact with children are improper because they prevent him from being alone with his own children. When a defendant has committed a sex offense against children or other vulnerable victims, general restrictions on contact with children ordinarily do not involve a greater deprivation of liberty than reasonably necessary. United States v. Smith, 606 F.3d 1270, 1282-83 (10th Cir. 2010).

But restrictions on a defendant's contact with his own children are subject to stricter scrutiny. "[T]he relationship between parent and child is constitutionally protected," and "a father has a fundamental liberty interest in maintaining his familial relationship with his [children]." United States v. Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996).

Given the importance of this liberty interest, "special conditions that interfere with the right of familial association can do so only in compelling circumstances," Smith, 606 F.3d at 1284, and it is imperative that any such restriction "be especially fine-tuned" to achieve the statutory purposes of sentencing. Edgin, 92 F.3d at 1049.

The present record does not provide compelling evidence that could support restrictions on Mr. Bear's contact with his own children. The government presented no evidence that in the twelve years since Mr. Bear's sex offense conviction he has committed any sexual offense, displayed a propensity to commit future sexual offenses, or exhibited a proclivity toward sexual violence. Nor is there any evidence in the record that Mr. Bear has continuing deviant sexual tendencies, fantasizes about having sex with children, or has otherwise displayed a danger to his own three children.

Under these circumstances, Mr. Bear's 2001 conviction for sex offenses is simply too remote in time, standing alone, to provide compelling evidence justifying infringement upon Mr. Bear's right of familial association. Thus we vacate the conditions limiting Mr. Bear's ability to be at his children's residence and his ability to be alone with his children without supervision.

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Second Circuit To Feds: Don’t Touch His Junk

10-5-2013 Vermont:

USA -v- McLaurin

You don’t often see federal courts striking down conditions of supervised release as violations of substantive due process. But you don’t often see the federal government wanting to hook up a device to a man’s penis, make the man watch pornography, and see what happens. It sounds a bit… 1984 (affiliate link).

I couldn’t help noticing this opinion, given its unusual nature and its focus on the peen. I’m sure you’re all dying to learn more about the procedure known as “penile plethysmography.” (The good news: it’s not as bad as a penile embolism or penile degloving.)

You know you want to see what those Second Circuit judges are hiding underneath their robes. Let’s dig a little deeper (into the opinion), shall we?

Having a sex-related offense on your record can really make your life unpleasant, for years after you’ve served your time in prison. It could, for example, cause you to lose your summer associate position at a top firm (even if your only “crime” was having a consensual relationship with a younger student while in high school).

Take the case of David McLaurin. He took topless photos of his teenage daughter, at his daughter’s request, to advance her modeling career. For this offense, he got sentenced to producing child pornography. He served his prison sentence (most of which was suspended).

Years later, he ran into problems complying with the federal Sex Offender Registration and Notification Act (SORNA). After pleading guilty to a single count of violating SORNA, he got sentenced to fifteen months in prison and five years of supervised release. The sentencing judge imposed, over McLaurin’s objection, the condition that he participate in sex offender treatment that could include penile plethysmographic examinations.

What’s that? You can check out the surprisingly detailed Wikipedia article, or you can read the Second Circuit’s opinion (jointly authored by two out of the three judges on the panel, Judge Guido Calabresi and Judge Barrington Parker; I wonder why they didn’t just make this a per curiam) (citations omitted):

Penile plethysmography is a procedure that lasts two to three hours and “involves placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses.” The Government disputes whether, as others have described, the test requires a subject to masturbate to establish a baseline for measurement.

Here at ATL, we have no problem with hand-to-wiener contact. Indeed, masturbation-defense law is a growing practice area, providing job opportunities for desperate law school graduates.

But masturbating while being hooked up to a machine and watched by others doesn’t sound like much fun. And it doesn’t have a great pedigree either:

The procedure was “developed by Czech psychiatrist Kurt Freund as a means to study sexual deviance,” and it was “at one time used by the Czechoslovakian government to identify and ‘cure’ homosexuals.”

And we all know how well those efforts go.

If you’re skeptical of penile plethysmography (anything that hard to spell has got to be sketchy), the Second Circuit agrees with you. Here’s the meat of the panel opinion:

• “[T]he procedure inflicts the obviously substantial humiliation of having the size and rigidity of one’s penis measured and monitored by the government under the threat of reincarceration for a failure to fully cooperate. And even if the machine could accurately monitor and record the extent or intensity of a convict’s prurient interests (a proposition about which we have serious doubts), the goal of correctional treatment during supervised release is properly directed at conduct, not at daydreaming.”
• “[W]e see no reasonable connection between fluctuating penis size and public protection — certainly none strong enough to survive the careful scrutiny that we give to unusual or severe conditions of supervised release.”
• “[W]e also find it odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction. In short, the Government offers no compelling justification for plethysmography in the name of deterring crime.”

Accordingly, the Second Circuit gave this dubious and degrading practice the shaft. Quoth the panel: “A person, even if convicted of a crime, retains his humanity.” ..Source.. by David Lat

Order requiring man to participate in sex offender program not unconstitutional

6-19-2014 Indiana:

The Indiana Court of Appeals has found (Patrick v Butts) that the order requiring a man to participate in the Sex Offender Management and Monitoring program does not violate Indiana’s prohibition of ex post facto laws.

George Patrick, convicted of two counts of Class B felony rape and two counts of Class C felony criminal confinement in 1991, was released on parole in 2007. But it was later revoked, and that’s when he filed his petition for writ of state habeas corpus relief, asserting his parole was revoked due to his “involuntary termination [sic] SOMM participation as a result of his special sex offender stipulations as a condition of his parole.”

“The Parole Board is allowed to impose conditions that are ‘reasonably related to the parolee’s successful reintegration into the community,’ Ind. Code § 11-13-3-4-(b), and that subsection was in place when Patrick was convicted. Our Supreme Court has found that the SOMM program ‘is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are fully released from State control,’” Judge Melissa May wrote in George Patrick v. Keith Butts, Superintendent, State of Indiana and Indiana Parole Board, 33A04-1311-MI-577.

“As the Parole Board’s authority to impose conditions on parole is not limited by the date on which the program was created, but rather is limited by the program’s ability to help reintegrate the parolee into society, the order that Patrick participate in SOMM does not violate the ex post facto clause.” ..Source.. by Jennifer Nelson

U.S. v Shannon

2-18-2014 7Th Cir:

U.S. v Shannon

While on supervised release for possessing child pornography, Ralph Shannon violated the conditions of his release by attaching a web camera to his computer without prior permission. He also viewed several websites involving sexually explicit images, purportedly of teenage girls.

Those actions led the district court to revoke Shannon's supervised release despite Shannon's contention that the websites contained disclaimers that the sites did not actually depict any minors.

In this appeal, Shannon contests the district court's imposition of a special condition for his life term of supervised release: a ban on the possession of any sexually explicit material. This ban was not restricted to material involving minors. Nor was it limited to visual depictions. And it was not discussed before or during the hearing, by anyone including the judge, before the judge imposed it.

In light of the lack of findings or explanation for the lifetime ban on the possession of all sexually explicit material, we vacate the condition and remand this case to the district court for further proceedings.

... ... ...

Here, in contrast, the district court did not at all explain the tie between the possession of any material containing sexually explicit conduct, even legal material depicting adults, and Shannon's conduct. And it gave no reason or explanation for the ban on even legal adult pornography. Cf. United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (finding fifteen-year ban on "pornography of any kind" plainly erroneous where there was no explanation or apparent basis in the record for a connection between lawful sexually explicit materials and the defendant's conviction for engaging in sexual conduct with a nine-year old girl).

In light of the lack of findings, we vacate Special Condition No. 10 and remand this case to the district court for further consideration. See Adkins, 2014 WL 325254 at *15; Goodwin, 717 F.3d at 524-25.

III. CONCLUSION.

We VACATE Special Condition No. 10 of Shannon's supervised release and REMAND for further proceedings consistent with this opinion.

Bleeke v State

4-11-2014 Indiana:

Bleeke v State (Supreme ct)

Bleeke v State (Court of Appeals)

In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children—even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program.

... ... ...

Conditions 4, 5, 17, 19, and 20, which we have laid out above, are all broadly aimed at restricting Bleeke from being near, communicating with, or associating with, children (and, until the injunction became permanent, from being near, communicating with, or associating with, his own children). Bleeke argues that there is no evidence whatsoever that he poses a risk to any minor, and that these conditions therefore are not reasonably related to his successful reintegration into the community.

We agree with Bleeke. None of the evidence presented at his individualized hearing or designated before the trial court in support of—or in opposition to—his motion for summary judgment indicates that Bleeke is, was, or will be a threat to children—either his own or otherwise. In fact, the evidence uncontrovertibly shows the opposite: that Bleeke is affirmatively not a threat to children, nor is he likely to be. The Parole Board’s only evidence to the contrary apparently consisted of a general study of cross-over offenders. But we note, as the Court of Appeals did, that the study itself was not made part of the record on appeal. Bleeke, 982 N.E.2d at 1049. This makes it impossible to assess whether the study raises a genuine issue of material fact as to the likelihood of Bleeke himself crossing over from an adult victim to a child victim.

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Parole Stipulation form 49108 ...

Miller v Commonwealth

2-21-2013 Kentucky:

Miller v Commonwealth

The Appellant Elmer David Miller was convicted of a misdemeanor and probated for the two-year statutory maximum on the condition that he attend counseling recommended by the Office of Probation and Parole. That office recommended that he enroll in the state's three-year sex offender treatment program required for felony sex offenders. At issue is whether his probation can be revoked for failing to do the impossible, that is, complete the program before his probation ended, and whether there are other options, such as extension of the probationary period, available. This Court concludes that Miller cannot be required to complete a program that extends beyond his period of probation, that he has completed his probation, and he is discharged from it as a matter of law.

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III. Conclusion
For the foregoing reasons, the Court of Appeals is affirmed in part, but to the extent that the Court of Appeals remanded this case to the trial court for a determination of whether Miller's probation should be revoked, its judgment is reversed. This case is remanded to the Lincoln Circuit Court with directions that the Appellant Elmer David Miller be deemed discharged from probation.

People v Douglas M

10-24-2013 California:

People v Douglas M

Douglas M. appeals from an order modifying his probation, pursuant to amended Penal Code section 1203.067,1 which sets forth various new probation conditions for registered sex offenders.2 Because the presumption of prospectivity of Penal Code statutes, mandated by section 3, cannot be rebutted, we conclude that the provisions of revised section 1203.067 may not be applied retroactively to change the terms and conditions of probation for probationers who committed their offenses before the effective date of the amendment. As appellant‟s offenses occurred well before that date, the trial court improperly modified the terms and conditions of his probation to include the new provisions.

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In sum, there is nothing in either the language of the statute or its legislative history clearly indicating a legislative intent for revised section 1203.067 to be applied retroactively to probationers whose crimes occurred before its effective date. (See Brown, supra, 54 Cal.4th at pp. 319-320; Alford, supra, 42 Cal.4th at p. 754.) Moreover, to construe the statute as applying to those probationers would raise serious constitutional questions under the federal and state ex post facto clauses. Therefore, in keeping with the mandate of section 3, the amended statute must be viewed as “unambiguously prospective,” applying to probationers who committed their crimes on or after the statute‟s effective date of September 9, 2010. (See Brown, at p. 320.) Because appellant‟s offense occurred before September 9, 2010, the provisions of revised section 1203.067 were improperly applied to him and must be stricken.6

DISPOSITION

The judgment is modified to strike the new terms and conditions of probation imposed on appellant pursuant to amended section 1203.067. As so modified, the judgment is affirmed.

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Additional Counseling Not Required For Some Registrants

3-19-2014:

The California Supreme Court has denied review of a case thereby relieving some registered citizens from the duty to participate in a state-mandated sex offender management program. Specifically, as a result of the Supreme Court’s denial, registered citizens currently on probation whose sex offense occurred prior to September 10, 2010, are not required to complete a sex offender management program mandated by Penal Code Section 1203.067(b).

The Supreme Court’s decision lets stand the decision of the Court of Appeal in the case People v. Douglas M. which was decided on October 24, 2013. The case was appealed shortly thereafter.

“This is an important decision for registrants whose offenses occurred prior to September 10, 2010,” stated CA RSOL President Janice Bellucci. “No longer will they be required to participate in an expensive and intrusive program.”

The Supreme Court’s decision was issued on January 21, 2014. ..Source.. by CA-RSOL