State v. Perfetto

• Decision Date: 17 September 2010
• Docket Number: No. 2009–647.,2009–647.
• Citation: 160 N.H. 675,7 A.3d 1179
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Jonathan A. PERFETTO.

160 N.H. 675

7 A.3d 1179

The STATE of New Hampshire

v.Jonathan A. PERFETTO.

No. 2009–647.

Supreme Court of New Hampshire.

Argued: June 23, 2010.

Opinion Issued: Sept. 17, 2010.

Michael A. Delaney, attorney general(Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

New Hampshire Civil Liberties Union Foundation, of Concord (Barbara R. Keshen on the brief and orally), for the defendant.

CONBOY, J.

The defendant, Jonathan A. Perfetto, appeals an order issued by the Superior Court(Smukler, J.) denying his motion to amend the conditions of his suspended sentence.We affirm.

The following facts are undisputed.On March 13, 2002, the defendant pleaded guilty to sixty-one counts of possession of child pornography.RSA 649–A:3 (2007)(amended 2008).As part of the plea agreement, the defendant was sentenced to a stand committed term of three to seven years at the state prison and four consecutive suspended sentences of three and a half to seven years each.One condition of the suspended sentences is that the defendant have no contact with minors under the age of seventeen.The defendant served his stand committed sentence and was released in October of 2008.

The defendant moved to amend the conditions of his suspended sentences so that he could attend meetings at the Manchester South Congregation of Jehovah's Witnesses while being supervised by an elder member of the congregation.The congregation is family-oriented, and children are regularly present at the worship meetings.The defendant also requested that he be allowed to converse among the entire congregation both before and after the meetings.Without a hearing, the trial court denied the defendant's motion "for the reasons stated in the State's objection."

On appeal, the defendant asserts that the trial court's order violates his constitutional rights to religious freedom.He argues that the First Amendment to the United States ConstitutionandPart I, Article 5 of the New Hampshire Constitution require that when those rights are limited, the government must utilize the "least restrictive alternative."The defendant contends that the prohibition on contact with minors impinges on his constitutional rights and that the trial court erred by not tailoring the condition to satisfy the least restrictive alternative test.He also claims that his due process rights under the New Hampshire Constitution were violated when the trial court did not hold a hearing on his motion.The State argues, among other things, that these issues have not been preserved for appeal.Assuming, without deciding, that his claims have been preserved, we first address the defendant's religious freedom argument under the State Constitution, citing federal opinions for guidance only.SeeState v. Ball,124 N.H. 226, 231–33, 471 A.2d 347(1983).

Part I, Article 5 of the New Hampshire Constitution provides:

Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession, sentiments, or persuasion; provided he doth not disturb the public peace or disturb others in their religious worship.

The defendant contends that by not amending the conditions of his suspended sentences to allow him to attend the congregation of his choice, he is being deprived of the right to the free exercise of his religion.While the defendant is not on probation, both the defendant and the State agree that the analytical framework governing restrictions on probationers applies here.

The parties disagree, however, as to the standard for determining whether a probation condition should be upheld.The defendant argues that where a condition affects a probationer's fundamental rights, the State must show that the condition is the least restrictive alternative available.The State counters that conditions of probation need only bear a reasonable relationship to the rehabilitation of the probationer and protection of the public.At oral argument, the defendant further asserted that the government must establish a compelling interest to warrant infringing on a probationer's fundamental rights.For the purpose of this appeal, we will assume that the defendant's fundamental rights have been infringed.

"To remain at liberty under a suspended sentence is not a matter of right but a matter of grace."State v. Kessler,199 Ariz. 83, 13 P.3d 1200, 1205(App.2000)(quotation omitted)."[P]robationers, like parolees and prisoners, properly are subject to limitations from which ordinary persons are free," but "these limitations in the aggregate must serve the ends of probation."United States v. Consuelo–Gonzalez,521 F.2d 259, 265(9th Cir.1975)."Conditions that unquestionably restrict otherwise inviolable constitutional rights may properly be subject to special scrutiny to determine whether the limitation does in fact serve the dual objectives of rehabilitation and public safety."Id."However, a court will not strike down conditions of release, even if they implicate fundamental rights, if such conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism."United States v. Schave,186 F.3d 839, 843(7th Cir.1999).

We have previously held that to be constitutionally permissible, a condition authorizing random warrantless searches of a probationer must be reasonably related to the supervision and rehabilitation of the probationer.State v. Zeta Chi Fraternity,142 N.H. 16, 30, 696 A.2d 530(1997);see alsoState v. Berrocales,141 N.H. 262, 263–64, 681 A.2d 95(1996).We have not yet applied this test where probation conditions potentially affect a probationer's freedom of religion.The defendant urges us, instead, to look to In re Caulk,125 N.H. 226, 230, 480 A.2d 93(1984)(holding that the State demonstrated an interest sufficiently compelling to override a prisoner's privacy right to fast until death), and hold that there must be a compelling governmental interest to warrant restricting a probationer's fundamental rights.We decline to adopt such a requirement.

Merely because a convicted individual's fundamental rights are involved should not make a probation condition which limits those rights automatically suspect.The development of a sensible probationary system necessarily requires that the trial court be vested with broad discretionary powers.It also requires that any condition which is imposed following conviction, whether or not it touches upon "preferred" rights, must be viewed in the context of the [underlying goals of probation].Thus, the crucial determination in testing probationary conditions is not the degree of " preference" which may be accorded those rights limited by the condition, but rather whether the limitations are primarily designed to affect the rehabilitation of the probationer or insure the protection of the public.

Consuelo–Gonzalez,521 F.2d at 265 n. 14.

We note that the condition in this case does not directly infringe on the defendant's free exercise of his religion: it is instead facially neutral and applies to the defendant's conduct regardless of whether he is in a church or elsewhere.Under these circumstances, we see no reason to require the State to show a compelling government interest.Cf.Employment Div., Ore. Dept. of Human Res. v. Smith,494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876(1990)(facially neutral, generally applicable laws that incidentally touch upon an individual's free exercise of religion do not require the government to show a compelling interest);State v. Emery,156 Vt. 364, 593 A.2d 77, 80 n.(1991)(because probation conditions are facially neutral and have only an incidental impact on the defendant's religious freedom, analysis under the traditional freedom of religion standards is not required).

The decision in People v. Branson,138 Mich.App. 455, 360 N.W.2d 614(1984), is instructive.In Branson, two probationers were prohibited from living at a religious encampment and limited to only four hours of religious services at the encampment each week.Id. at 615.The court rejected the probationers' constitutional claims, finding that the conditions bore a logical relationship to their rehabilitation.Id. at 616–17....