Rutledge v. State, A21A1086

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Barnes, Presiding Judge.
• Citation: 861 S.E.2d 793
• Parties: RUTLEDGE v. The STATE.
• Decision Date: 26 July 2021
• Docket Number: A21A1086

861 S.E.2d 793

RUTLEDGE
v.
The STATE.

A21A1086

Court of Appeals of Georgia.

July 26, 2021

Jeffrey Ray Rutledge, for Appellant.

Louie Craig Fraser, Peter F. Larsen, Dublin, for Appellee.

Barnes, Presiding Judge.

Proceeding pro se, Jeffrey Ray Rutledge appeals the trial court's order denying his motion to modify the terms and conditions of his supervised release and his motion to vacate a void sentence. Upon our review, we affirm the judgment but remand for the correction of a typographical error on the final disposition sheet.

The facts, as proffered by the State at Rutledge's plea hearing, were as follows. In August 2007, the Twiggs County Sheriff's Department conducted a sting operation to apprehend sexual predators who targeted children on the internet with the assistance of Perverted Justice, a private organization.¹ As part of the sting operation, an adult working with Perverted Justice posed as a 13-year-old girl in an internet chat room. Rutledge initiated communication with the adult posing as the underage girl and had several conversations with her. During their online conversations, Rutledge sent her numerous pornographic images and solicited oral, anal, and other sexual acts. Rutledge also arranged to meet her for oral sex at a location near the interstate in Twiggs County on August 9, 2007, but he was arrested when he arrived there. Investigators obtained a search warrant for Rutledge's computer and found the internet chat logs reflecting his conversations with the adult posing as the

861 S.E.2d 796

young girl as well as images of Rutledge's body.

In January 2008, Rutledge was indicted for criminal attempt to commit aggravated child molestation based on the incident in which he traveled to Twiggs County for the purpose of having oral sex with an underage girl. Subsequently, in December 2008, Rutledge entered a negotiated plea of guilty under North Carolina v. Alford , 400 U. S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to the charged offense. Rutledge was sentenced to twenty-five years, with the first ten years in confinement and the remainder on probation.

The conditions of Rutledge's probation included certain special conditions applicable to sex offenders, including Condition 8 that provided:

Sexually oriented material. You shall not possess or subscribe to any sexually oriented or sexually stimulating material to include mail, computer or television, nor patronize any place where such material or entertainment is available. ("Sex Offender Condition 8")

Rutledge's probation also included special computer-related conditions of probation, including Condition 2 that provided:

Probationers must obtain prior written approval from the supervising probation officer or designee to use an electronic bulletin board system, services that provide access to the internet, or any public or private computer network. ("Computer Condition 2")

Additionally, the final disposition sheet included a statement that certain conditions of Rutledge's probation

are hereby made "Special Conditions" as the term is contemplated by [OCGA] § 42-8-37.1, and are in addition to General Conditions and court ordered fines and fees. Any violation of these Special Conditions will authorize the Court to revoke the probation and require you to serve up to the balance of the sentence in confinement.

Rutledge served time in confinement and subsequently began serving his probationary sentence. In November 2017, Rutledge's probation officer filed a petition to modify or revoke his probation for violating Sex Offender Condition 8 and Computer Condition 2. The probation officer alleged that Rutledge had several pornographic images on his cell phone and accessed the internet without permission from the officer in order to post and respond to online advertisements for casual sexual encounters. In December 2017, after conducting a hearing, the trial court found that Rutledge had violated the special conditions of his probation. The trial court revoked part of Rutledge's probationary sentence, requiring him to serve five additional years in confinement and then serve the remaining time of his probation under the original conditions of his sentence.

In December 2019, Rutledge filed a pro se motion to modify the terms and conditions of his supervised release, contending that Sex Offender Condition 8 and Computer Condition 2 unconstitutionally restricted his free speech rights and that, as a result, those conditions should be removed from his probationary sentence. The following year, in September 2020, Rutledge filed a pro se motion to vacate a void sentence, asserting that his sentence was void because there was no "42-8-37.1" in the Georgia Code as referenced in the final disposition sheet. In November 2020, the trial court entered a single order that denied both of Rutledge's motions, resulting in the present appeal.

1. Rutledge contends that the trial court erred in failing to modify the conditions of his probation to strike Sex Offender Condition 8 and Computer Condition 2.

"A trial court has statutory authority to modify conditions of probation throughout the period of the probated sentence." Bell v. State , 323 Ga. App. 751, 752, 748 S.E.2d 114 (2013). See Stephens v. State , 289 Ga. 758, 763-764 (2) (b) (1), 716 S.E.2d 154 (2011). In this regard, OCGA § 17-10-1 (a) (5) (A) states that the sentencing court "shall retain jurisdiction throughout the period of the probated sentence," and OCGA § 42-8-34 (g) empowers the court to "modify or change the probated sentence ... at any time during the period of time prescribed for the probated sentence to run," and "in any manner deemed advisable by the judge." See

861 S.E.2d 797

Stephens , 289 Ga. at 764 (2) (b) (1), 716 S.E.2d 154 ; Bell , 323 Ga. App. at 752, 748 S.E.2d 114. The defendant bears the burden of demonstrating that a probation condition is unreasonable and should be modified, and a trial court's decision whether to modify probation is reviewed only for an abuse of discretion. Mallory v. State , 335 Ga. App. 852, 854-855, 783 S.E.2d 370 (2016). Against this legal backdrop, we turn to the arguments raised by Rutledge in this case.

(a) In moving to modify the terms of his probation in the court below, Rutledge contended that Sex Offender Condition 8 was unconstitutional under the First Amendment to the United States Constitution, as incorporated through the Due Process Clause of the Fourteenth Amendment, and under Article I, Section I, Paragraph V of the Georgia Constitution. Specifically, Rutledge argued that Sex Offender Condition 8 violated his free speech rights by prohibiting him from possessing adult pornography when he was not convicted of a crime involving pornography.² The trial court rejected Rutledge's argument, concluding that Sex Offender Condition 8 did not violate his constitutional rights.

"Georgia ... views probation as a matter of grace, upon the granting of which conditions may be imposed," and "[a] person occupies a special status while on probation, during which time his private life and behavior may be regulated by the State to an extent that would be completely untenable under ordinary circumstances." (Citation and punctuation omitted.) Goode v. Nobles , 271 Ga. 30, 31, 518 S.E.2d 122 (1999). As the United States Supreme Court has explained, "[i]nherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled." (Citation and punctuation omitted.) United States v. Knights , 534 U. S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). See Land v. State , 262 Ga. 898, 901 (5), 426 S.E.2d 370 (1993), quoting Morrissey v. Brewer , 408 U. S. 471, 480 (II), 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (probationary sentence allows probationer "to enjoy ‘conditional liberty properly dependent on observance of special parole...