State v. King

Decision Date17 September 2020
Docket NumberAppeal No. 2019AP1642-CR
Citation2020 WI App 66,394 Wis.2d 431,950 N.W.2d 891
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Peter J. KING, Jr., Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of Joseph N. Ehmann and Mark R. Thompson, assistant state public defenders of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sonya Bice Levinson, assistant attorney general, and Joshua L. Kaul, attorney general.

Before Fitzpatrick, P.J., Blanchard, and Nashold, JJ.

FITZPATRICK, P.J.

¶1 Peter J. King, Jr., was convicted in the Sauk County Circuit Court of using a computer to facilitate a child sex crime and child enticement. The circuit court imposed a bifurcated imprisonment sentence on the count of using a computer to facilitate a child sex crime. The circuit court also imposed conditions of extended supervision which restricted King's access to the internet, and King's extended supervision was twice revoked for violating those conditions.

¶2 On the child enticement count, King received a probation disposition of ten years, which began after completion of King's sentence for the use of a computer to facilitate a child sex crime. King's conditions of probation imposed by the circuit court included restrictions on his access to the internet. King's probation was revoked for, among other reasons, violating those court-ordered conditions that restricted his access to the internet. After revocation, the circuit court imposed a bifurcated imprisonment sentence for the child enticement count. When King is released to extended supervision, he will be subject to court-ordered conditions of extended supervision that restrict his access to the internet. Those court-ordered extended supervision conditions are a subject of this appeal.

¶3 King contends, based on the U.S. Supreme Court's opinion in Packingham v. North Carolina , ––– U.S. ––––, 137 S. Ct. 1730, 198 L.Ed.2d 273 (2017), that the court-ordered extended supervision conditions restricting his access to the internet are overly broad and, as a result, his First Amendment rights to freedom of speech and freedom of association are improperly infringed. King also argues that the circuit court erred in denying his motion for resentencing and a reduction in his imprisonment sentence on the child enticement conviction because the Court's opinion in Packingham is a "new factor" that was overlooked at sentencing.

¶4 For the reasons set forth below, we conclude that the extended supervision conditions imposed by the circuit court that will restrict King's access to the internet are not overly broad and do not improperly infringe King's First Amendment rights to freedom of speech and freedom of association. We also conclude that the Court's opinion in Packingham is not a new factor requiring resentencing on the child enticement count. Accordingly, we affirm the rulings of the circuit court.

BACKGROUND

¶5 The following material facts are not disputed for purposes of this appeal.

¶6 In 2005, King communicated online with a person King believed to be a fifteen-year-old girl. That person was actually a Sauk Prairie police officer. King sent the "girl" sexually explicit messages online and made plans with the "girl" to meet her, and her fourteen-year-old friend, at a motel for purposes of having sexual intercourse with both minors. After King checked into the motel, King was arrested. Items in King's possession at the time of his arrest included liquor, condoms, and a camera. King was charged with counts of using a computer to facilitate a child sex crime and child enticement. See WIS. STAT. §§ 948.075(1) and 948.07(1) (2003-04).1

¶7 A jury found King guilty on both counts. In 2007, the circuit court imposed a bifurcated imprisonment sentence of four years of confinement and four years of extended supervision on the use of a computer to facilitate a child sex crime count. As one condition of King's extended supervision, the court ordered that King was to "[h]ave no use or access to a computer [or cell phone] that has internet access, either ... at [King's] residence or place of employment [and] any computer access is to be reported to [King's Department of Corrections (DOC) supervising] agent." See WIS. STAT. § 973.01(5).2 The circuit court granted an exception to those conditions in that King was permitted "[i]nternet access at a job center" or at a "place of business [at] which [King] wishes to work" to apply for employment, but only with permission of his DOC agent. The circuit court imposed a consecutive disposition of ten years of probation, sentence withheld, on the child enticement conviction.

¶8 King challenged his convictions on appeal. See State v. King , No. 2008AP2673-CR, unpublished slip op., 2009 WL 3763800 (WI App Nov. 12, 2009). In that appeal, King argued that the circuit court erred by admitting evidence at trial of his prior conviction for sexual assault of a thirteen-year-old girl and that police found child pornography when they searched his residence during the investigation of those charges. King's appeal was unsuccessful, and the rulings of the circuit court were affirmed.

¶9 King completed his initial confinement and, in December 2009, was released to extended supervision. In October 2011, King's extended supervision was revoked because, according to a DOC report to the circuit court, King possessed "a Facebook account," "computers," "internet services," and "a blackberry phone" during extended supervision. According to the report, King also viewed "sexual[ly] explicit websites" while on extended supervision. After serving a revocation sentence in prison, King was again released to extended supervision in May 2012.

¶10 In September 2013, King's extended supervision was revoked a second time, this time for, according to a DOC report to the circuit court, "being in possession of two computers, accessing the internet, possessing sexually explicit pictures, having a profile on sugardaddyforme.com, ... possess[ing] a cellphone that had ... internet capabilities and g[iving] his [DOC] agent false information." After serving his second revocation sentence in prison, King was again released to extended supervision, which he completed in July 2016.

¶11 Immediately thereafter, King began his ten-year term of probation for the child enticement conviction. King's access to the internet was restricted as a court-ordered condition of his probation in terms substantially similar to the previously-mentioned extended supervision conditions restricting his internet access. King again failed to comply with conditions of supervision, and his probation was revoked less than eighteen months after starting his probation term.3

¶12 The revocation report prepared for the circuit court by the DOC stated that, between July 2016 and July 2017, King violated his probation conditions through these pertinent actions, all without notifying his DOC agent: having an active Facebook account using a false name; accessing the internet regularly; and possessing a computer and cellphone. The report also stated that King lied to his probation agent about his social media access and, when taken into custody, refused to disclose to his probation agent the username and password for his computer. It was later determined that the computer was used by King for, among other things, communicating with a woman to whom King sent money and with whom King had established a "relationship" without DOC agent approval. At the probation revocation sentencing hearing, the State advised the circuit court that, after a forensic review of King's computer used during King's probation term, it was determined that King searched the internet using terms that included "teen." Also, pornography was found on the computer, but the State could not determine whether the persons in the pornographic images were under the age of eighteen.

¶13 At the May 2018 sentencing hearing, the circuit court imposed a bifurcated sentence of four years of initial confinement and four years of extended supervision. The court also imposed the following extended supervision condition: "no use or access to a computer [or cell phone] that has internet access, either be it at residence or place of employment [and] any computer access is to be reported to agent."

¶14 King filed a postconviction motion in the circuit court. Relying on Packingham , King argued that the circuit court must vacate the condition of his extended supervision restricting his access to the internet on the grounds that it violates his rights to freedom of speech and freedom of association under the First Amendment. King also requested that the circuit court, under its inherent authority and based upon the existence of a new factor, modify his sentence to two years of initial confinement and one year of extended supervision. King argued that the "new factor" was the Supreme Court's opinion in Packingham .

¶15 Following a hearing on King's motion, the circuit court denied King's request to vacate the condition of extended supervision that restricted his access to the internet. In an August 2019 Decision and Order, and based on input from the parties, the court modified the extended supervision condition regarding King's access to the internet to provide as follows:

1. The defendant may possess device(s) capable of accessing the internet only with the express permission of the defendant's agent.
2. The defendant may access the internet only to the extent and manner as approved by the defendant's agent. However, the agent shall not withhold permission for the defendant's access through public devices for purposes of obtaining employment or performing any legitimate government functions such as filing taxes or renewing [a] driver's license or license plates, etc.
3. If the possession of devices or access to the internet is
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8 cases
  • Doss v. State
    • United States
    • United States State Supreme Court of Iowa
    • 25 Junio 2021
    ...(2018) (determining that a broad ban on Internet use as a condition of parole was unconstitutional); State v. King , 394 Wis.2d 431, 950 N.W.2d 891, 898-909 (Wis. Ct. App. 2020) (holding conditions of defendant's extended supervision restricting his access to the Internet unless he received......
  • State v. C. G. (In re Interest of C. G.)
    • United States
    • United States State Supreme Court of Wisconsin
    • 7 Julio 2022
    ...reasonable, content-neutral restrictions on speech that are ‘narrowly tailored to serve a significant governmental interest.’ " State v. King, 2020 WI App 66, ¶23, 394 Wis. 2d 431, 950 N.W.2d 891. "A condition need not be the least restrictive means of advancing the government's interests i......
  • Doss v. State
    • United States
    • United States State Supreme Court of Iowa
    • 25 Junio 2021
    ...866, 872-73 (W.Va. 2018) (determining that a broad ban on Internet use as a condition of parole was unconstitutional); State v. King, 950 N.W.2d 891, 898-909 (Wis. Ct. App. 2020) (holding conditions of defendant's extended supervision restricting his access to the Internet unless he receive......
  • State v. C. G. (In re C. G.)
    • United States
    • United States State Supreme Court of Wisconsin
    • 7 Julio 2022
    ...restrictions on speech that are 'narrowly tailored to serve a significant governmental interest.'" State v. King, 2020 WI.App. 66, ¶23, 394 Wis.2d 431, 950 N.W.2d 891. "A condition need not be the least restrictive means of advancing the government's interests in order to satisfy the 'narro......
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