Harrell v. State, No. A01A2288

• Decision Date: 24 January 2002
• Docket Number: No. A01A2289., No. A01A2288
• Citation: 253 Ga. App. 440,559 S.E.2d 155
• Court: Georgia Court of Appeals
• Parties: HARRELL v. The STATE. Williamson v. The State.

559 S.E.2d 155

253 Ga. App. 440

HARRELL v. The STATE.

Williamson v. The State.

Nos. A01A2288, A01A2289.

Court of Appeals of Georgia.

January 24, 2002.

Gilbert J. Murrah, Bainbridge, for appellants.

J. Brown Moseley, Dist. Atty., Charles M. Stines, Asst. Dist. Atty., for appellee.

SMITH, Presiding Judge.

In separate cases, Billy J. Harrell and Ken Williamson entered pleas of guilty to charges of statutory rape. Each was sentenced to a prison term followed by probation. Although their cases are unrelated, they have been consolidated for review because the central issue is identical, although the facts in each case differ slightly. Harrell objected at his sentencing to the imposition of certain conditions of probation applicable to sex offenders. Both Harrell and Williamson filed motions for new trial, seeking modification of these conditions. Both motions for new trial were denied, and both Harrell and Williamson appeal. Each asserts that the trial court erred in denying his motion for new trial because several of the special conditions of probation are unlawful. We agree with their contentions with regard to some of the special conditions but disagree as to others. We therefore affirm in part and vacate in part and remand for resentencing.

The special conditions imposed in both cases are essentially identical. Among them are the following:

2. Probationer shall not be alone with any child under 18 years of age unless an adult is present who has knowledge of the probationer's history or criminal sexual behavior and/or abusive behavior and has been approved as a chaperon by the probation officer and treatment provider.

3. Probationer shall not reside in a home with persons under 18 years of age, unite with a family unit with children under 18, nor work or volunteer for any business, organization or activity that provides care or services to children under 18 years of age without the consent of the court.

4. Probationer shall not linger, loiter or spend time at locations where children under 18 are present or are likely to be present.

8. Probationer shall submit to a search of his/her person, property, residence, or vehicle at any time of the day or night, with or without consent or a search warrant whenever requested to do so by a probation officer or any other peace officer¹ and specifically consents to the use of any contraband seized as evidence in a probation revocation proceeding.

15. Probationer shall submit to a polygraph examination at any time whenever directed to do so by a probation officer and bear the expense of same.

1. A trial court has broad discretion in sentencing to impose conditions reasonably related to the nature and circumstances of the offense and the rehabilitative goals of probation. Ellis v. State, 221 Ga. App. 103(1), 470 S.E.2d 495 (1996). In Ellis, we held that given that Ellis was convicted of child molestation, it was reasonable to impose probation conditions prohibiting him from being present at certain locations where children were present and from associating with groups dealing with children. But such conditions must be stated with "reasonable specificity" to afford the probationer notice of the groups and places he must avoid. And the conditions must not be so broadly worded as to encompass groups and places not rationally related to the purpose of the sentencing objective. Id. at 104(1), 470 S.E.2d 495. In Ellis, we held that two conditions similar to but far more specific than special conditions 3 and 4² were "susceptible of being read and applied in ways which are not reasonably related to the sentencing objectives," id., and were therefore improper.

Harrell and Williamson were not convicted of child molestation but of statutory rape. Nevertheless, because of the nature of the offense, the sentencing objective in these cases is the same as that in Ellis. Since special conditions 3 and 4 in these two cases are far more broadly worded and less specific, it follows that they do not provide Harrell and Williamson with the required notice of the groups and locations they must avoid, and they are too broadly worded to be related rationally to the purpose of the sentencing objectives. These special conditions of probation must be vacated, and the case must be remanded to the trial court for resentencing.

The same is not true of special condition number 2. As pointed out by appellants, while certain questions may arise as to its interpretation,³ that condition is sufficiently specific and narrow to be reasonably related to the sentencing objective.

2. Appellants maintain that special conditions 8 and 15 are improper under the Georgia Constitution, as well as the Fourth Amendment to the U.S. Constitution, which has been held to apply to probationers. Allen v. State, 258 Ga. 424, 425(2), 369 S.E.2d 909 ( 1988). The Supreme Court of Georgia held in Allen, however, that Fourth Amendment rights may be waived and that Allen had waived them when he agreed to the special conditions as part of a negotiated plea bargain. Id. at 424, 425(3), 369 S.E.2d 909. In Fox v. State, 272 Ga. 163, 527 S.E.2d 847 (2000), our Supreme Court held that a waiver of Fourth Amendment rights was invalid because it was not obtained as part of the plea bargaining process. The probationer in Fox was required under the terms of his probation to submit to a search "any time of the day or night, with or without a search warrant whenever requested to do so by a probation supervisor or any law enforcement officer." Id. The Supreme Court held that the purported waiver...