State v. Livingston
| Decision Date | 06 February 1976 |
| Citation | 53 Ohio App.2d 195,7 O.O.3d 258,372 N.E.2d 1335 |
| Parties | , 94 A.L.R.3d 1213, 7 O.O.3d 258 The STATE of Ohio, Appellee, v. LIVINGSTON, Appellant. 1 |
| Court | Ohio Court of Appeals |
Syllabus by the Court
A condition of probation for a defendant convicted of child abuse in violation of R.C. 2919.22(B)(1) that she have no other child during the five year probationary period is a violation of her constitutional right to privacy and an abuse of the trial court's discretion in imposing conditions of probation, and is therefore void.
Anthony G. Pizza, Toledo, for appellee.
William F. Hayes, Toledo, for appellant.
Defendant appeals from sentencing after she pleaded guilty to a charge of the cruel abuse of a child resulting in serious physical harm, in violation of R.C. 2919.22(B)(1). The court suspended the imposition of the sentence of not less than two nor more than five years and probated the defendant upon the conditions that she serve thirty days in the county jail, cooperate fully with the childrens services board and that "the defendant not have another child during the five year probationary period."
The appellant placed her seven month old child on a space heater, causing second degree burns on six to seven per cent of the child's body. At the time of sentencing, the appellant was 20 years of age, unmarried, with an I. Q. substantially below 100, and the question was raised as to whether or not she was pregnant, but no determination was factually made. At the time of the hearing on appeal, it was determined that she was pregnant and probably had been at the time of sentencing.
The defendant assigns the following as error:
1. "The condition of probation that the Appellant not have a child for a period of five (5) years is in violation of her constitutional right of privacy and is therefor void and of no effect."
2. "The condition of probation that the Appellant not have a child for a period of five (5) years is void and of no effect due to its noncompliance with the standards which are required of conditions of probation."
For the reasons hereinafter stated, we find both assignments well taken.
R.C. 2929.51 authorizes the trial court to suspend sentence and place an offender on probation pursuant to R.C. 2951.02. Subsection (C) of the latter provides:
In exercising a recognized broad discretion in setting additional conditions of probation, the trial court is not free to impose arbitrary conditions that significantly burden the defendant in the exercise of her liberty and bearing only a remote relationship to the crime for which she was convicted and to the objectives sought by probation of education and rehabilitation. 2
The courts' discretion in dictating conditions of probation is not limitless. See e. g. United States v. Strada (D.C.Mo., 1974), 393 F.Supp. 19; People v. Dominguez (1967), 256 Cal.App.2d 623, 64 Cal.Rptr. 290; Williams v. State (Tex.Cr.App.1975), 523 S.W.2d 953. The defendant must not be oppressed or unduly burdened by a condition upon which sentence is suspended. State v. Simpson (1975), 25 N.C.App. 176, 212 S.E.2d 566. Reasonableness is the test of the propriety of the conditions of probation. State v. Barklind (1975), 12 Wash.App. 818, 532 P.2d 633. In addition to being unconstitutional, such restriction prohibiting the bearing of children is an unreasonable burden to place on an already pregnant woman. See Doe v. Bolton (1973), 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 and Griswold v. Connecticut (1965), 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, regarding constitutionality; State v. Caudle (1970), 276 N.C. 550, 173 S.E.2d 778; cf. Fuller v. Oregon (1974), 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642; State v. Hess (1975), 12 Wash.App. 787, 532 P.2d 1173.
A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to the future criminality or does not serve the statutory ends of probation is invalid. In People v. Dominguez, supra, a condition of probation that defendant was not to become...
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